In Budnick v. Town of Carefree, (— F.3d —, 2008 WL 638385, C.A.9 (Ariz.), March 11, 2008), the United States Court of Appeals considered a developer’s claim that a city’s refusal to grant him a permit to build a retirement community in an area not zoned for that purpose constituted discrimination in violation of the Fair Housing Amendments Act of 1988 (“FHAA”).
The court ruled that because the developer failed to establish that the city’s action resulted in disparate treatment, disparate impact, or a failure to make reasonable accommodations for the disabled, the permit denial did not constitute illegal discrimination.
Facts
F.G. Budnick (“Budnick”) was a developer who sought to build a retirement residential community in Carefree, Arizona (“City”). Because it was to be built on property not zoned for that use, he had to request a special use permit (“SUP”) from the City. Both the City’s planning commission and its City council voted against issuing the permit. Budnick sued, claiming that the because his project was intended to benefit senior citizens, and senior citizens often become disabled, the denial constituted illegal housing discrimination against the disabled. The district court granted summary judgment to the City, and Budnick appealed.
Decision
The FHAA forbids discrimination in the sale or rental of housing on the basis of disability. To establish such discrimination by a local government, a plaintiff must show disparate treatment, disparate impact, or a failure to make reasonable accommodations for housing for the disabled.
Budnick’s claim that the denial was disparate treatment against the disabled because some senior citizens who would have lived in the development would have become disabled would have led to the absurd conclusion that every senior citizen, indeed every person, could claim discrimination based on inevitable disability due solely to the passage of time, the court reasoned. Moreover, the City provided a legitimate, nondiscriminatory reason for the denial: maintaining the character of its residential neighborhoods by adhering to its zoning ordinances.
Budnick also failed to establish disparate impact, the court ruled. Disparate impact is established through statistical analysis, the court said, and Budnick offered no evidence, statistical or otherwise, to show that the City’s permitting decisions had a disproportionate impact on the disabled.
Finally, the denial could not be considered a failure to make reasonable accommodation for housing for the disabled because Budnick did not offer evidence that the project was necessary to house disabled people, or that without his development, the disabled would be denied an equal opportunity to find housing. In fact, Budnick offered no specific evidence on how his development would have provided to meet the needs of disabled people.
Having failed to show disparate treatment, disparate impact, or a failure to provide reasonable accommodations, Budnick could not establish that the denial of his permit was housing discrimination against the disabled in violation of the FHAA. The district court was therefore correct to grant summary judgment for the City and its ruling was affirmed.