Austin v. Town of Farmington

15-2238-cv
Austin v. Town of Farmington
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2015 5
6
(Argued: January 22, 2016 Decided: June 21, 2016) 7
8
Docket No. 15-2238-cv 9
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COLLEEN & JOHN AUSTIN, 12
Plaintiffs-Appellants, 13
14
v. 15
16
TOWN OF FARMINGTON, 17
Defendant-Appellee. 18
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B e f o r e: WINTER, RAGGI, and DRONEY, Circuit Judges. 22
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Appeal from a grant by the United States District Court for 24
the Western District of New York (Michael A. Telesca, Judge) of a 25
Rule 12(b)(6) motion dismissing appellants’ complaint asserting 26
Fair Housing Act claims. The principal issue is whether the 27
Town’s resolutions granting variances allowing appellants to 28
build auxiliary structures, e.g. an above-ground pool, fence, and 29
deck, violated the Act by requiring removal when their disabled 30
child left the property. We affirm in part and vacate in part. 31
32
LAURIE MARIE LAMBRIX, Legal 33
Assistance of Western New York, 34
Inc., Rochester, NY, for 35
Plaintiffs-Appellants. 36
37
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ROBERT BRENNA JR.(Sheldon W. Boyce, 1
Jr. and Donald G. Rehkopf, Jr., on 2
the brief), Brenna Boyce, PLLC, 3
Rochester, NY, for Defendant- 4
Appellee. 5
6
WINTER, Circuit Judge: 7
Colleen and John Austin appeal from Judge Telesca’s 8
dismissal of their complaint pursuant to Fed. R. Civ. P. 9
12(b)(6). The complaint asserted claims under the Fair Housing 10
Act (“FHA”), Title VIII of the Civil Rights Act of 1968, as 11
amended, 42 U.S.C. § 3601 et seq., against the Town of 12
Farmington. The complaint alleged that appellants obtained 13
limited variances from a land–use regulation prohibiting 14
accessory structures on the lot of their newly purchased home. 1
15
The variances allowed appellants to install a fence, pool, and 16
deck designed to accommodate the needs of appellants’ disabled 17
son. 2 The Town Board’s resolutions allowing the variances 18
required removal of the structures when, inter alia, the disabled 19
child’s residency in the house terminated. We shall refer to 20
these limitations as the “Restoration Provisions.” The 21
1 Typical zoning variances always “run with the land” and continue until
properly revoked. 2 Anderson, New York Zoning Law and Practice § 23.53 [3d ed].
However, while we use the term “variance” in this opinion to refer to the Town’s
resolutions, they were obviously not intended to run with the land. See J. App’x at 49
(stating that variance was “a temporary accommodation” of child’s special needs).
2 The FHA uses the term “handicap” rather than “disability.” See 42 U.S.C. §
3604(f)(3). The FHA definition of “handicap,” though, is virtually identical to the
definition of “disability” in the Americans with Disabilities Act of 1990 (“ADA”),
Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. § 12101 et seq.
(2008)), and disability scholars tend to prefer the term “disability.” We will
therefore treat the two terms interchangeably and use the term “disability” throughout
this opinion. See Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 38 n.8 (2d Cir.
2015) (using terms interchangeably for similar reasons).
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reasonableness under the Act of the requirement that the land-use 1
restrictions be restored after the child’s residency ended is at 2
the heart of the present dispute. Appellants also claim that the 3
Restoration Provisions constituted illegal retaliation for their 4
asserting FHA claims. See 42 U.S.C. § 3617. 5
The district court determined that it did not need to reach 6
the issue of whether the Restoration Provisions were reasonable 7
under the FHA because appellants’ complaint did not allege facts 8
sufficient to show either an intent to discriminate or to 9
constitute disparate impact discrimination. Because we conclude 10
that the reasonableness of the Town’s accommodations is in issue, 11
but a valid claim for retaliation has not been alleged, we affirm 12
in part and vacate in part. 13
BACKGROUND 14
In reviewing a district court’s Fed. R. Civ. P. 12(b)(6) 15
dismissal of a complaint, we of course accept all factual 16
allegations as true, and draw all reasonable inferences in the 17
plaintiff’s favor. See Chambers v. Time Warner, Inc., 282 F.3d 18
147, 152 (2d Cir. 2002). 3
19
3 Appellants moved for summary judgment in their favor in the district court and
accompanied that motion with a variety of documents, including records of various Town
agencies and offices. These records are integral to the complaint, San Leandro
Emergency Med. Grp. Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808-09 (2d
Cir. 1996), and we refer to them where needed in our discussion of the facts. We also
rely on appellants’ summary judgment papers to the extent they clarify the allegations
of the complaint with regard to costs of installation and removal of the structures,
facts that do not affect our disposition of this appeal.
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The complaint alleges that, in 2009, Colleen and John Austin 1
decided to move from North Carolina to up-state New York, with 2
their two sons. Their older son, Cole, has multiple serious 3
disabilities as a result of being born prematurely, including 4
cerebral palsy and global developmental delays. He is non-verbal 5
and visually impaired. 6
Appellants sought to move to an area with good public 7
schools and chose the Town of Farmington. Appellants became 8
interested in a newly-constructed home in the Town’s Auburn 9
Meadows development. Appellants wanted to install a fence in 10
order to keep their son safely within their yard and to build an 11
above-ground pool because of the benefits aquatic therapy affords 12
to children with cerebral palsy. 13
Before purchasing the home, appellants learned that there 14
was a Town ordinance restricting “patio lots,” like that of the 15
house in question, in the subdivision. The restriction in 16
question was passed as part of the rezoning and authorization 17
necessary to the Auburn Meadows development. The authorization 18
contained numerous provisions relating to open space, trails, 19
etc. The provision at issue here prohibited accessory 20
structures, such as pools and fences, “within the patio home 21
portion of the site” but allowed such structures on other 22
(larger) lots “within the rear yard portion of the site provided 23
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that such rear yards are screened from adjacent public rights-of- 1
ways.” Appellants’ lot was subject to the full prohibition. 2
Upon learning of the land-use restriction on the property, 3
Colleen Austin called the Farmington Town building department to 4
seek a variance. The Code Enforcement Officer told her that 5
appellants would have to request such a variance from the Town 6
Board. Appellants bought the home confident that they would be 7
able to secure the necessary permission. 8
In June 2012, after negotiations with appellants, the Town 9
Board passed a Resolution entitled “Granting a Temporary 10
Accommodation to install a Fence and an Above-Ground Swimming 11
Pool to the Owners of 1685 Lillybrook Court . . . in the Auburn 12
Meadows Subdivision . . . .” 4 However, the Resolution also 13
stated that the fence and swimming pool must “be wholly removed” 14
from the property “within 21 days” of the disabled child ceasing 15
to live on the property, of appellants ceasing to own the 16
property “whether by conveyance, death or any other reason,” or 17
of anyone being added as an additional owner of the property. 18
The Resolution further stated that the fence and pool were to be 19
removed “at the expense of the Austin’s [sic] or of the new 20
4 The Town Board, established under New York Town Law § 60, has the authority to
adopt, amend, and repeal zoning regulations. See N.Y. Mun. Home Rule Law §
10(1)(ii)(a); N.Y. Stat. Local Gov’ts § 10(6); Town of Farmington, N.Y. Zoning Code
ch. 165 (1980).
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owners of [the property].” 5 The Resolution stated that 1
appellants had the right to bring a legal challenge to the 2
Restoration Provisions. 3
During the summer of 2012, appellants installed the fence 4
and pool. After the Town granted appellants’ request for a 5
second variance, they added a deck to the pool. The second 6
Resolution contained the same Restoration Provision. The total 7
cost for installing the fence, pool, and deck, as well as 8
accompanying landscaping work, was over $27,000. Appellants have 9
been quoted a price of $6,630 to remove the fence, pool, and deck 10
and repair the damage to the yard. 11
On June 11, 2014, appellants filed the present action 12
challenging the Restoration Provisions and seeking declaratory 13
and injunctive relief against their enforcement. Appellants 14
alleged two claims based on the FHA: (i) discrimination by the 15
Town’s denial of “a reasonable modification pursuant to 42 U.S.C. 16
Section 3604(f)(3)(A),” and (ii) retaliation by the Town “for 17
asserting their rights under federal law in violation of 42 18
U.S.C. Section 3617.” 19
5 The Resolution stated that if the fence and pool were not removed during the
specified time period, “the Town [would] be able to bring [an] action to enforce the
removal of the fence and the above-ground swimming pool and whoever is the owner of
1685 Lillybrook Court at that time shall be liable for all of the Town’s expenses in
bringing such legal action, including, but not limited to, costs and reasonable
attorney’s fees.”
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On June 8, 2015, the district court dismissed appellants’ 1
complaint pursuant to the Town’s Fed. R. Civ. P. 12(b)(6) motion. 2
The court concluded that there were “simply no facts alleged that 3
evince a discriminatory intent in requiring that plaintiffs 4
restore their property to its original condition once the need 5
for the modifications is no longer present.” Austin v. Town of 6
Farmington, 113 F. Supp. 3d 650, 655 (W.D.N.Y. 2015). Further, 7
the court held that “[p]laintiffs fail[ed] to support, beyond 8
their conclusory assertions, that requiring them to bear the cost 9
of removal of the fence and pool is in some way based upon their 10
son’s disability when the initial grant of a variance to build 11
the pool along with a fence was granted knowing that plaintiffs’ 12
son was disabled.” Finally, the court stated that “plaintiffs 13
have not sufficiently alleged a violation of the FHA under the 14
disparate-impact analysis . . . . Here, there has been no 15
showing that the restoration requirement does not apply to non- 16
disabled individuals.” 17
DISCUSSION 18
As noted, we review de novo a district court’s dismissal of 19
a complaint pursuant to Rule 12(b)(6). See Chambers, 282 F.3d at 20
152. To survive dismissal, a complaint must plead “enough facts 21
to state a claim to relief that is plausible on its face.” Bell 22
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 23
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In 1988, Congress amended the Fair Housing Act of 1968 to 1
extend its coverage to housing discrimination based on an 2
individual’s disability. 3
Section 3604(f)(3) provides: 4
For purposes of this subsection, 5
discrimination includes -- 6
7
(A) a refusal to permit, at the expense of 8
the handicapped person, reasonable 9
modifications of existing premises occupied 10
or to be occupied by such person if such 11
modifications may be necessary to afford such 12
person full enjoyment of the premises except 13
that, in the case of a rental, the landlord 14
may where it is reasonable to do so condition 15
permission for a modification on the renter 16
agreeing to restore the interior of the 17
premises to the condition that existed before 18
the modification, reasonable wear and tear 19
excepted. 20
21
(B) a refusal to make reasonable 22
accommodations in rules, policies, practices, 23
or services, when such accommodations may be 24
necessary to afford such person equal 25
opportunity to use and enjoy a dwelling; or 26
. . . . 27
28
42 U.S.C. § 3604(f)(3). Neither Subsection (A) nor Subsection 29
(B) requires that the denial of modifications or accommodations 30
be the result of a discriminatory animus toward the disabled. 31
Both require only that the requested modification or 32
accommodation be reasonable and that the denial(s) result, in the 33
case of Section 3604(f)(3)(A), in diminishing the disabled 34
person’s full enjoyment of the premises or, in the case of 35
Section 3604(f)(3)(B), in so diminishing that person’s use and 36
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enjoyment of the premises as to constitute a denial of equal 1
opportunity. 2
The Town does not challenge the applicability of the FHA to 3
the ordinance prohibiting accessory structures on patio lots in 4
the Auburn Meadows development. Indeed, the House Report 5
accompanying the 1998 Amendments to the FHA specifically stated 6
that the Act was intended “to prohibit the application of special 7
requirements through land-use regulations, restrictive covenants, 8
and conditional or special use permits that have the effect of 9
limiting the ability of such individuals [disabled persons] to 10
live in the residence of their choice in the community.” H.R. 11
Rep. No. 100-711, at 24 (1988), reprinted in 1988 U.S.C.C.A.N. 12
2173, 2185; see, e.g., City of Edmonds v. Oxford House, Inc., 514 13
U.S. 725, 729-30 (1995) (applying FHA provisions to a city zoning 14
code). 15
Appellants argue that the Restoration Provisions violate 16
Subsection (A). They argue that (A)’s provision allowing 17
landlords to require restoration of interiors as a condition to a 18
modification supports an inference that all other restoration 19
requirements are per se unreasonable under the FHA. 20
However, a plain reading of the statute reveals that there 21
is no per se rule against land-use regulators including 22
restoration provisions in zoning variances or other land-use 23
accommodations. Subsections (A) and (B) must be read as a whole, 24
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Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) (”[W]hen 1
construing the plain text of a statutory enactment, we do not 2
construe each phrase literally or in isolation [but rather] 3
attempt to ascertain how a reasonable reader would understand the 4
statutory text, considered as a whole.”), and when that is done, 5
it is clear that the subsection that governs the present appeal 6
is (B). It is true that appellants were seeking the right to 7
install modifications to the premises, but their request for a 8
variance from the patio lot restrictions was a request, in the 9
language of (B), for an “accommodation[] in rules [or] policies.” 10
42 U.S.C. § 3604(f)(3)(B). Subsection (B) contains nothing, 11
either directly or by negative inference, outlawing restoration 12
provisions. In short, it is clear that (A)’s mandates are 13
limited to housing providers while (B), which does not mention 14
restoration, also applies to private or public entities that do 15
not own but promulgate rules or policies governing various areas 16
of land. Of course, some entities may be both housing providers 17
and rule makers. However, in the present circumstances, the Town 18
of Farmington is clearly not a housing provider but, rather, is 19
only a land-use regulator. 6
20
Appellants rely heavily upon a “Joint Statement of the 21
Department of Housing and Urban Development and the Department of 22
6 We note that the Supreme Court has held that municipalities may be considered
both regulators and housing providers. Edmonds, 514 U.S. at 729-30.
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Justice” regarding “Reasonable Modifications under the Fair House 1
Act.” 7 Joint Statement of the Department of Housing and Urban 2
Development and the Department of Justice, Reasonable 3
Modifications Under the Fair Housing Act (Mar. 5, 2008), 4
www.hud.gov/offices/fheo/disabilities/reasonable_modifications_ma 5
r08.pdf (“Joint Statement on Reasonable Modifications”). This 6
reliance is misplaced. The Joint Statement on Reasonable 7
Modifications is inapplicable because the instant appeal concerns 8
an accommodation, not a modification. Nonetheless, the 9
document’s description of the relationship between Subsections 10
(A) and (B) remains informative, and is described as follows: 11
[A] reasonable modification is a structural 12
change made to the premises whereas a 13
reasonable accommodation is a change, 14
exception, or adjustment to a rule, policy, 15
practice, or service. A person with a 16
disability may need either a reasonable 17
accommodation or a reasonable modification, 18
or both, in order to have an equal 19
opportunity to use and enjoy a dwelling . . . 20
21
Id. at 6 (emphasis in original). See also Joint Statement of the 22
Department of Housing and Urban Development and the Department of 23
7 We note that the Joint Statement on Reasonable Modifications is a policy
statement, rather than an authoritative interpretation of Section 3604. Therefore, it
does not carry the force of law and is not accorded Chevron deference. See
Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (“[I]nterpretations contained in
policy statements, agency manuals, and enforcement guidelines, all of which lack the
force of law[,] do not warrant Chevron-style deference.”); see also Barnhart v.
Walton, 535 U.S. 212, 221-22 (2002). It does, however, still qualify for the lower
deference accorded by the Supreme Court’s ruling in Skidmore v. Swift & Co., which
gives deference to interpretive rules according to their persuasiveness, evaluated
under a four factor test. 323 U.S. 134, 140 (1944) (evaluating persuasiveness of
interpretive rules according to (1) the thoroughness of the agency's investigation;
(2) the validity the agency’s reasoning; (3) the consistency of the agency’s
interpretation over time; and (4) other persuasive powers of the agency).
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Justice, Reasonable Accommodations Under the Fair Housing Act 1
(May 17, 2004), 2
www.hud.gov/offices/fheo/library/huddojstatement.pdf (“Joint 3
Statement on Reasonable Accommodations”), at 6 (defining 4
“reasonable accommodation”). Applying this framework to the 5
present matter, appellants sought an exception –- variance –- to 6
the Town’s ordinance prohibiting accessory structures on patio 7
lots in the Auburn Meadows development, which exception would 8
allow them to make physical modifications to their property –- 9
i.e., install a fence, pool, and deck. See Edmonds, 514 U.S. at 10
729-30 (applying Section 3604(f)(3)(B) to a city zoning code). 11
Viewing the Town’s Resolutions as accommodations governed by 12
Subsection (B), we now turn to appellants’ challenge to the 13
Restoration Provisions. In dismissing appellants’ complaint, the 14
district court concluded, seemingly as a matter of law, that the 15
Town’s “refusal to remove the restoration condition [did] not 16
constitute a refusal to make a reasonable accommodation for 17
plaintiffs’ disabled son in its zoning policy.” Austin v. Town 18
of Farmington, 113 F. Supp. at 655. The court also determined 19
that appellants failed to state a claim under the FHA because 20
they alleged neither an intent to discriminate, nor facts 21
sufficient to constitute disparate-impact discrimination. See 22
id. at 655-56. Because of these failures, and the fact that 23
appellants were not excluded from purchasing or using the housing 24
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of their choice because of the restoration requirement, the court 1
granted appellees’ motion to dismiss the complaint. Id. at 656. 2
The language of Section 3604(f)(3)(A), (B) compels a 3
different conclusion. The subsections define unlawful 4
discrimination, in the present context, as refusing a reasonable 5
accommodation allowing appellants to make reasonable 6
modifications to their property to afford their disabled child an 7
equal opportunity to enjoy fully the use of the property. The 8
unlawful act, therefore, is the refusal to make a reasonable 9
accommodation without regard to the state of mind underlying the 10
refusal. 11
Appellants do not challenge the accommodation made by the 12
Town to the extent it allowed them, as they requested, to build a 13
fence, install a pool, and add a deck to the pool. Their 14
challenge is simply to the portion of the Town’s Resolutions 15
requiring the removal of these modifications. The Town, in 16
short, does not want the variance to “run with the land” -- to be 17
taken advantage of by later occupants without a disability -- 18
while appellants want to avoid the cost of removal and to capture 19
any increase in the value of the property caused by the 20
modifications and/or by permanently freeing the lot in question 21
from the restrictions applicable to the neighborhood in question. 22
Pl.’s Br. 7. 23
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It is certainly true, as the district court reasoned, that 1
the Restoration Provisions did not directly deprive the disabled 2
child of his rights under the FHA. However, we believe that a 3
trier of fact might find that a restoration requirement in some 4
circumstances so burdens a party wanting to modify a property to 5
accommodate a disabled person that it amounts to a refusal of a 6
reasonable accommodation. See Logan v. Matveevskii, 57 F. Supp. 7
3d 234, 257 (S.D.N.Y. 2014) (asserting that “a refusal of a 8
request for a reasonable accommodation can be both actual or 9
constructive,” such as where request for accommodation is met 10
with indeterminate delay instead of outright denial (internal 11
quotation mark omitted)). This would violate the FHA even though 12
the authority imposing a restoration requirement believed in good 13
faith that it was fully accommodating the disabled individual. 14
The issue of whether the failure of the Town to allow the 15
modifications to continue in place after the child left the 16
property was reasonable therefore can neither be avoided nor 17
decided as a matter of law on the pleadings. See, e.g., 18
Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 578 (2d Cir. 19
2003); see also Hollis v. Chestnut Bend Homeowners Ass’n, 760 20
F.3d 531, 541 (6th Cir. 2014) (“[T]he crux of a reasonable- 21
accommodation . . . claim typically will be the question of 22
reasonableness.”). Whether the Town’s Resolutions are reasonable 23
in light of appellants’ needs requires a complex balancing of 24
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factors. Reasonableness analysis is “highly fact-specific, 1
requiring a case-by-case determination.” Hovsons, Inc. v. Twp. 2
of Brick, 89 F.3d 1096, 1104 (3d Cir. 1996) (quoting United 3
States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 4
(9th Cir. 1994)). 5
The reasonableness issue here cannot be determined on the 6
pleadings because the relevant factors are numerous and balancing 7
them requires a full evidentiary record. A requested 8
accommodation is reasonable where the cost is modest and it does 9
not pose an undue hardship or substantial burden on the rule 10
maker. See Olson v. Stark Homes, Inc., 759 F.3d 140, 156 (2d 11
Cir. 2014); see also Joint Statement on Reasonable Accommodations 12
at 7 (explaining that accommodation is not reasonable “if it 13
would impose an undue financial and administrative burden on the 14
[rule maker] or it would fundamentally alter the nature of the 15
[rule maker’s] operations”). Applied to the context of land-use 16
regulations, relevant factors may include the purposes of the 17
restriction, the strength of the Town’s interest in the land-use 18
regulation at issue, the need for uniformity, the effect of 19
allowing later landowners without a disability to enjoy the lack 20
of a restriction on pools, decks, and fences, while all their 21
neighbors are subject to it, the likelihood that a permanent 22
variance will cause other landowners subject to the regulation to 23
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seek similar variances, etc. 8 Balanced against those factors is 1
the cost of removal –- again, whether out of pocket or in a 2
reduced sale price. 9 We say no more because there are 3
undoubtedly a host of relevant factors looking in both directions 4
to be considered. Moreover, we do not want to make gratuitous 5
statements that may seem to address other of the multitude of 6
land-use regulations, e.g. historic landmarking, etc. 7
However, we affirm the dismissal of appellants’ retaliation 8
claim. “A claim has facial plausibility when the plaintiff 9
pleads factual content that allows the court to draw the 10
reasonable inference that the defendant is liable for the 11
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12
(2009). 13
Unlike a claim under Subsection 3604(f)(3), a retaliation 14
claim does require a showing of a particular state of mind, i.e., 15
a retaliatory motive. See Reg’l Econ. Cmty. Action Program, Inc. 16
v. City of Middletown, 294 F.3d 35, 53-55 (2d Cir. 2002); see 17
also Zhu v. Countrywide Realty Co., 165 F. Supp. 2d 1181, 1198 18
(D. Kan. 2001) (“[I]n order to make out a prima facie case under 19
Section 3617, [a] plaintiff must demonstrate that intentional 20
discrimination motivated defendants’ conduct, at least in 21
8 The requisite reasonableness analysis is, in this matter, under Subsection
(B).
9 Sometimes, of course, the freedom from an otherwise generally applicable
restriction may greatly enhance the value of a particular piece of property.
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part.”). No non-conclusory allegation of fact showing such a 1
motive is in the complaint. In their brief, appellants argue 2
that the lack of a proffered justification for the Restoration 3
Provisions and the existence elsewhere in the Town of lots 4
smaller than appellants’ property without a prohibition on 5
accessory structures is sufficient to allege a prima facie case 6
of retaliation. We disagree. The Restoration Provisions on 7
their face simply restore the requirements applicable to all such 8
properties in the area once the needs of appellants’ disabled 9
child are not an issue. Their purposes are obvious and reflected 10
in the documents accompanying appellants’ own motion for summary 11
judgment. Town-wide differences in the applicability of various 12
land-use regulations to various developments and lots preexisted 13
appellants’ request for a variance, and the Auburn Meadows 14
regulations apply to appellants’ neighbors as well as to them. 15
There is, therefore, no allegation supporting the existence of a 16
retaliatory motive. 17
CONCLUSION 18
For the foregoing reasons, the judgment granting the Town’s 19
motion to dismiss is affirmed in part and vacated in part. Each 20
party should bear its own costs. 21
22
23
24
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