January 1, 1900

by Todd D. Greene

Many community associations spend a sizable portion of their operating budgets on landscaping to ensure that the association’s property is lush, green and pest free. Unfortunately, the very chemicals and pesticides landscapers use can pose a serious health risk to certain members of the community. Individuals suffering from Multiple Chemical Sensitivity Syndrome or "MCSS" can become severely ill from being exposed to chemicals that are benign to the majority of the population. Recently, individuals with MCSS have sought legal protection and relief in lawsuits involving fair housing and discrimination. This article seeks to give a brief overview of MCSS and how an association can avoid indirectly injuring its members and potential liability.

What is Multiple Chemical Sensitivity Syndrome?

MCSS has many definitions, but the most comprehensive may be the one offered by the Ad Hoc Committee on Environmental Hypersensitive Disorder of the Ontario Ministry of Health. The Committee defined MCSS as "a chronic multi-system disorder, usually involving symptoms of the central nervous system. Affected persons are frequently intolerant to some foods, and they react adversely to some chemicals and to environmental agents, singly or in combination, at levels generally tolerated by the majority." The symptoms of MCSS include depression, irritability, mood swings, an inability to concentrate or think clearly, poor memory, fatigue, drowsiness, diarrhea, constipation, sneezing, runny or stuffy nose, wheezing, itching eyes and nose, skin rashes, headache, muscle and joint pain, frequent urination, pounding heart, muscle incoordination, swelling of various parts of the body and even schizophrenia.

Multiple Chemical Sensitivity and The Fair Housing Amendments Act

The Fair Housing Amendments Act ("FHA") makes it unlawful to discriminate against any person regarding the terms, conditions or privileges of sale or rental of a dwelling, or in providing services or facilities in connection with a dwelling because of a handicap. It is a violation of the FHA to refuse to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford handicapped persons equal opportunity to use and enjoy a dwelling.

In 1992, Housing and Urban Development officially recognized that individuals with MCSS are handicapped within the meaning of the Act. As a result, any community association that refuses to make reasonable accommodations to an individual with MCSS may be liable under the FHA.

For example, in Lebens v. County Creek Ass’n, a case emanating from the Eastern District of Virginia, a plaintiff lessee with MCSS alleged that the pesticide spraying throughout her townhouse community exacerbated her MCSS symptoms and prevented her from using and enjoying her dwelling and surrounding areas. To accommodate the plaintiff, the community agreed to adopt an integrated pest management program which eliminated blanket spraying and established a pesticide-free zone surrounding plaintiff ’s home. The settlement agreement also designated specific mechanical controls and horticultural practices; included a list of approved pesticides for limited, identified uses; and provided a seven- day notice requirement for any proposed construction or pesticide use.

New Jersey Pesticide Regulations- Notification Required

New Jersey is one of the most progressive States when is comes to pesticide regulations. Commercial applicators are highly regulated to ensure that pesticides are used in a safe manner. In many instances, the administrative code may require notification of the target community prior to the use of a pesticide. Furthermore, N.J.A.C. 7:30-9.15, which governs general notification requirements, mandates that no person should apply a pesticide "where a person not previously notified requests to be notified of such an application, or where conditions indicate that notification in addition to that specified in this subchapter is necessary to prevent a significant risk of harm, injury or damage." If notification is required, it shall be made and reasonable precautions taken, including the allowance of sufficient time for those notified to take appropriate precautions, before application may commence. Notice must include the date and time of the pesticide application, the brand name and EPA registration number of the pesticide which will be applied, the common chemical name of the active ingredients, the location or address of the application and the name and telephone number of a contact person to receive further information.

Conclusion

In light of the aforementioned regulations, there are a few simple steps a community association should follow in order to avoid injuring members of the community and risking costly legal action. First, a community association should hire a reputable, licensed landscaper. Second and most important, the association should know its members. A brief survey should be sent to the members of the community to determine if anyone suffers from MCSS. If so, appropriate measures must be taken to avoid harmful exposure to a pesticide or other chemical. Lastly, the association must provide appropriate notice to the members of the community prior to any pesticide application. By following these few simple rules, an association can protect itself and its members.

Todd D. Greene is an associate of Hill Wallack and member of the Administrative Law/Government Procurement Practice Group. His principal area of practice is in the areas of economic and business development with a particular emphasis on municipal law and government affairs.