Posted by: Patricia Salkin | September 19, 2016

2nd Circuit Court of Appeals Finds Town Lacked Retaliatory Motive in Refusing to Remove Restoration Condition in Variance But Reverses Summary Judgement on Reasonableness of Restoration Provision Regarding Above-Ground Pool Installed to Aid Disabled Individual

Homeowners, Colleen and John Austin, brought an action seeking injunctive and declaratory relief against the town, alleging that a variance that permitted installation of above-ground pool with protective fencing on basis of their son’s disability, but required that pool and fence be removed upon sale of the home or when their disabled son was no longer in residence, violated their rights under Fair Housing Act (FHA) to a reasonable modification. They also alleged that the town retaliated against them for asserting FHA claims. The United States District Court for the Western District of New York granted town’s motion to dismiss, and the homeowners appealed.

The court found a plain reading of the statute revealed that there was no per se rule against land-use regulators including restoration provisions in zoning variances or other land-use accommodations. However, the court noted that a requested accommodation is reasonable where the cost is modest and it does not pose an undue hardship or substantial burden on the rule maker. Thus, the reasonableness issue here could not be determined on the pleadings because there were several relevant factors and balancing them would require a full evidentiary record. Accordingly, the court reversed the dismissal of this claim.

Next, appellants argued that the lack of a proffered justification for the Restoration Provisions, and the existence elsewhere in the Town of lots smaller than appellants’ property without a prohibition on accessory structures, was sufficient to allege a prima facie case of retaliation. Here, however, the Restoration Provisions on their face simply restored the requirements applicable to all such properties in the area once the needs of appellants’ disabled child were not an issue. The court found that the Town’s purposes were reflected in the documents accompanying appellants’ own motion for summary judgment: Town-wide differences in the applicability of various land-use regulations to various developments and lots preexisted appellants’ request for a variance, and the Auburn Meadows regulations applied to appellants’ neighbors as well as to them. Accordingly, the court affirmed the dismissal of appellants’ retaliation claim.

Austin v. Town of Farmington, 826 F.3d 622 (2d Cir. CA 6/21/2016)


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