Posted by: Patricia Salkin | April 9, 2010

Zoning Code that Prevents Proposed Mulitfamily Housing for the Elderly Does Not Violate the Fair Housing Act Amendments or Americans with Disabilities Act

Plaintiffs alleged that the Town’s zoning code which prevents them from building multifamily housing for the elderly and thus limiting the access of the handicapped to desired types of housing violates both the Fair Housing Act Amendments (FHAA) or the Americans with Disabilities Act (ADA).  The Second Circuit Court of Appeals disagreed.

The Circuit Court explained that to establish discrimination under either the FHAA or ADA, plaintiffs must prove either that there was intentional discrimination (disparate treatment), that there was a disparate impact, or a failure to make a reasonable accommodation.  To prove disparate impact, the Plaintiff is required to provide evidence showing, “(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.”  While using this theory Plaintiffs are not required to show discriminatory intent, they must prove that the practice “actually or predictably results in…discrimination.” Additionally, there must be a causal connection between the policy at issue and the discriminatory effect.” While the plaintiffs identified a facially neutral policy (the zoning code), their assertion that the number of handicapped people in the Town is larger than the number of handicapped accessible units is insufficient to satisfy the second prong of the test since the zoning ordinance provisions only limit the number of building type of handicapped accessible units and whether the units can be built at all. Furthermore, the Court noted that age itself is not a protected category under the FHAA or ADA. 

The Court also commented that although the planned development was designed so that nearly all units would be handicapped accessible, the Plaintiffs had not proved with either statistical or qualitative evidence that handicapped seniors have a proportionally greater need or preference for this type of multifamily age-restricted housing than to non-handicapped seniors. Evidence that there is a shortage of handicapped accessible housing in the town is alone not sufficient to demonstrate that the neutral policy at issue (e.g. the zoning code) is the cause.

With respect to their disparate treatment allegation, the Court found that the Plaintiffs did not present evidence that animus against a protected group was a significant factor in the application of the Town’s zoning rules.

As to their reasonable accommodation claim, the Court noted that the Plaintiffs has to show that they will be likely denied an equal opportunity to use and enjoy housing in the community.  Here, they failed to show that permitting them to build the multi-family age-restricted development would be necessary to allow handicapped seniors an equal opportunity to use and enjoy housing in the community, and they failed to provide evidence that “the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects the disability.” Specifically, they “offered no evidence that the dense multifamily aspect of its proposed development, the characteristic for which it requested accommodations, bears a relationship to the handicapped-accessible nature of its units or will ameliorate the effects of its residents’ disability.  Nor have they shown that development of handicapped-accessible units is fiscally feasible at the lower densities required by the current zoning.”

 Quad Enterprises Co. LLC v Town of Southold, 2010 WL 80946 (C.A. 2 (N.Y.) 3/10/2010).

The opinion can be accessed at: http://www.leagle.com/unsecure/page.htm?shortname=infco20100310115


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