The Town of Carefree denied Budnick’s request for a special use permit to build a multi-level continuing care retirement community proposed as a “luxurious, age restricted, senior retirement residential community” designed to service active and independent seniors on a 40-acre tract because the proposal did not comply with application zoning ordinances. The proposed project was for a “village-like community” consisting of 83 upscale apartments, 60 exclusive casitas, 18 opulent single family homes, six assisted care units (total of 24 beds) and four skilled nursing units (total of 24 beds). Budnick’s application explained that only residents capable of independent living would be allowed to enter the community, but once accepted, a lifetime continuum of services would be available if needed. After the planning commission denied the special use permit, Budnick appealed to the Town Council, who, after a hearing, also denied the special use permit. Budnick’s lawyer then sent a letter to the town asserting that the community would serve “disabled residents” in the skilled nursing and assisted living units. The Town subsequently met with Budnick and offered three alternatives as to how his project could be built in the Town. None of these were acceptable to Budnick who then filed a lawsuit alleging that the denial amounted to a violation of the Federal Fair Housing Act Amendments of 1988(FHAA). The District Court granted summary judgment for the Town and Budnick appealed to the Ninth Circuit.
The Ninth Circuit, in affirming the District Court, determined that Budnick could not satisfy all of the elements of a prima facie case for disparate treatment. Budnick could not satisfy even the first element, to show that the project would house individuals with disabilities. The Court noted that the potential residents would not presently qualify as disabled under the FHAA, and to hold otherwise, “would mean in effect, that every senior citizen (indeed, every person) desiring to rent or buy housing could assert a present claim of discrimination based on inevitable disability due solely to the passage of time.” The Court continued, that “being old, is not per se, equivalent to being disabled” noting that “the consequences of aging are entirely unpredictable, and are sometimes treatable.” Budnick was not able to satisfy the fourth element of a prima facie case as he presented no evidence that the town approved a special use permit for a similarly situated party during a period relatively near the time it denied his request.
Budnick’s suggestion that discrimination could be inferred because the town’s general plan stated that Carefree was designed to cater to a retirement lifestyle was also without merit, as many commissioners thought his plan was a good idea if it was located somewhere else within the town. Although there were some negative comments made by members of the public at the public hearing, the Court found no evidence in the record to suggest that these comments motivated the commissioners to vote against the special use permit, and the Court declined to make such an inference just because the comments were made. The Court further refused to infer intent to discriminate against the elderly from the fact that the Town amending its zoning ordinance a few month after the denial, to require special use permits for this type of project in commercially zoned areas, especially since the Court concluded that “being old is not the equivalent of having a disability.
Turning to the issue of disparate impact, the Court noted that Budnick presented no evidence, statistical or otherwise, to demonstrate that the Town’s permit practices have a disproportionate impact on the disabled, nor was there a triable issue of fact presented as to impact of the Town’s permit practices on the disabled. Budnick’s argument that the type of housing project he proposed was completely absent in the Town is insufficient proof of disparate impact.
As to Budnick’s argument that the Town’s actions refused to make the required reasonable accommodation under the FHAA, the Court reiterated that the Budnick (actually the potential residents of this proposed community) do not suffer from a handicap as defined by the FHAA. The Court maintained that they request for a special use permit was not a request for a reasonable accommodation, but, even if it was, Budnick did not establish that his housing project was necessary to house disabled seniors (“in other words, that ‘but for the accommodation, [the disabled] will likely be denied an opportunity to enjoy the housing of their choice.”
Budnick v. Town of Carefree, 2008 WL 838385 (C.A. 9 (Ariz.) 3/11/2008).
The opinion can also be accessed at: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D0BF1F1E0D56C89288257408007EBE73/$file/0615841.pdf?openelement
Hat Tip to Robert Thomas, author of the inverse condemnation blog for bringing this case to my attention. See his case description at: http://www.inversecondemnation.com/inversecondemnation/2008/03/9th-cir-no-fair.html
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