From Tuesday's decision by Judge Kathleen Miller (Del. Super. Ct.) in Delaware Human & Civil Rts. Comm'n v. Welch: which seems correct to me:
Shortly after Elaine and James Cahill … purchased a home in the Wilmington neighborhood of Boulder Brook Development …, they erected a six-foot stockade fence around the backyard. The Development is subject to a deed restriction which prohibits the erection of any fence without prior approval of 1/3 of the residents in the Development, including the residents of each contiguous or adjacent lot. If approval is obtained, the fence must be "open face" and no more than four feet.
The Cahills did not seek approval before erecting the fence. The adjacent residents, Elmer and Wilma Yu … and Christine Welch …, objected to the fence. When the Cahills refused to remove it, the Yus and Welch filed a petition in the Court of Chancery seeking a declaration that the fence violated the deed restriction and a mandatory injunction compelling its removal.
After the action proceeded for over six months, the Cahills asserted that the fence was a reasonable accommodation for their ongoing health issues, as provided in the Delaware Fair Housing Act …. Thereafter, the Cahills moved to stay that action to allow them time to pursue a claim with the Delaware Human and Civil Rights Commission … for violation of the Act. The stay was denied.
After the Senior Magistrate issued a Final Report ruling in favor of the petitioners and ordering removal of the fence, the Commission filed this action. The Commission claims that the Court of Chancery petitioners (defendants here) violated the Fair Housing Act by continuing to pursue that action after they learned of the Cahills' need for a reasonable accommodation. {The complaint asserts that Mrs. Cahill is disabled, … [and] utilizes an emotional support animal [a Yorkshire Terrier]. The complaint alleges that despite knowing of Mrs. Cahill's disabilities and need for a reasonable accommodation [apparently referring to fencing that would keep the terrier from escaping -EV], the Chancery Petitioners engaged in discriminatory conduct by pursuing the Chancery Action, which resulted in an order mandating removal of the Fence.} The Court of Chancery action is now stayed pending resolution of this case.
The Commission, on behalf of Elaine Cahill, seeks an injunction, a finding that the fence is a reasonable accommodation which supersedes the deed restriction, and an award of damages….
