Cole Austin is 9 years old. He has cerebral palsy and severe vision impairment.
There's one activity he loves.
"Swimming is a great exercise for him," said his mother, Colleen. "It's a time when he can feel like he's doing something on his own."
When the Austins bought their home in Farmington in 2010, they knew their subdivision did not allow backyard pools or fences. They planned to apply for a variance. After extensive talks involving lawyers for both sides, the town granted the Austins a variance to install a pool.
"He'll never ride his bike up and down the street or play lacrosse for Victor, anything like that, but this is something he can do," said Colleen Austin.
The Austins now want the town to lift the requirement they remove the pool and fencing if they ever move. The family estimates it would cost $10,000.
"We would have to repair all this, fill in all of this, reseed everything, and we would have to do all of this before we put the house on the market," said Colleen Austin.
Farmington attorney Sheldon Boyce said the town has "bent over backward" to accommodate the Austins. he points out the Austins could have purchased a house where pools are allowed.
"There's no legal reason to have a pool if the child is not living there. What do we say to the neighbors? We're trying to be fair to all sides," Boyce said.
The Austins filed a federal lawsuit against the town under the Fair Housing Act. The lawsuit asks the town to remove the condition the family remove the pool if they ever move.
Their attorney, Laurie Lambrix, said the FHA permits disabled renters to modify their homes and landlords can require them to return the dwelling to the original condition.
But in the case of homeowners, Lambrix said, "Under the Fair Housing Act, there's no provision that allows them to require restoration at all under any circumstances if you own the home that live in."
"There's many other subdivisions and neighborhoods that don't have these kinds of rules in Farmington and people should be able to have what they want," said Colleen.
The town has not yet been served with the lawsuit. Boyce and the Austins are open to settlement talks.
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