IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10851

ELDERHAVEN, INC.

Plaintiff-Appellant,

versus

CITY OF LUBBOCK, TX, a Municipal Corporation;

CITY PLANNING AND ZONING COMMISSION,

a Political Subdivision of the

City of Lubbock, Texas;

ZONING BOARD OF ADJUSTMENT OF THE

CITY OF LUBBOCK, TEXAS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

October 11, 1996

Before GARWOOD, HIGGINBOTHAM, and BENAVIDES, Circuit Judges:

PATRICK E. HIGGINBOTHAM:

Today we affirm a summary judgment granted to a Texas

municipality dismissing claims of discrimination against

handicapped persons under the Fair Housing Act. We are persuaded

that the City in administer ing its zoning laws has reasonably

accommodated the needs of the company complaining here.

I

In the late 1980s and early 1990s, Art and Mary Griffin

founded Elderhaven, Inc., a corporation organized for the purpose2

of providing alternative living arrangements for elderly disabled

persons. In November of 1990, Elderhaven bought a house with an

address of 2510 Slide Road in a portion of the City of Lubbock

zoned R-1. Elderhaven planned to establish a shared living

residence for several elderly adults with mental or physical

disabilities. Lubbock law at the time limited the use of land

within the R-1 designation to single-family residences, and defined

family as (i) any number of persons related by blood, marriage, or

adoption, or (ii) any two unrelated persons living and cooking

together as a unit. Because its proposed use was not in accordance

with Lubbock zoning laws, Elderhaven began a dialogue with City

officials regarding its plans for the Slide Road structure and

regarding the City’s duty to comply with the Fair Housing Act, 42

U.S.C. § 3601-31. This interaction included an application for a

variance from the Lubbock Zoning Board of Adjustment, which was

denied, and finally resulted in the 1991 passage of Lubbock

Ordinance 9489.

Elderhaven’s focus is upon Ordinance 9489. The parties agree

that Ordinance 9489 amends the Code of Ordinances, City of Lubbock

so as to provide the following regulatory scheme of uses within the

R-1 zone. Any group of persons related by blood, marriage, or

adoption, whether disabled or non-disabled, may live together as a

single family in a residence. One or two persons, disabled or nondisabled, who are not related by blood, marriage, or adoption may

live and cook together as a single family unit. Three or four

persons disabled but not related by blood, adoption, or marriage,1 Originally, the Ordinance required a $25.00 permit fee

application. The parties agree that the City no longer collects

this fee.

3 may live together in a residence so long as they first obtain a

permit from the director of planning of the City of Lubbock.

Groups of five or more disabled persons may apply for a special

exception from the ZBA to the otherwise applicable limits on the

use of pl ots of land within the R-1 zone. Lubbock law prohibits

all other uses unless the landowner obtains a variance.

Ordinance 9489 outlines the requirements for a permit

applicable to a group of three or four unrelated and disabled

persons wishing to live together. An application for a permit must

include a rudimentary site plan i llustrating compliance with

minimum square footage requirements for bedrooms. No bedroom may

house more than two persons. The application must designate a

person labeled a “care-provider,” who will be responsible for

compliance with the Ordinance, and the “care-provider” must have a

“separate bedroom.” The relevant City of Lubbock authorities must

conduct a health inspection of the facility. A group living

arrangement for the disabled may not be located within 600 feet of

a nother group living arrangement already in place. 1 This

permitting process takes between 10 and 14 days to complete. Once

issued, a permit may be renewed annually so long as t he “careprovider” keeps the facility in compliance with the Ordinance.

Within its statutory context, the portion of the Ordinance

requiring groups of five or more disabled individuals to request a

special exception functions as follows. An application including2 Lubbock Code § 29-8(f)(1) provides a series of substantive

criteria for the ZBA’s use in deciding whether to grant a special

exception. On the basis of the record and legal materials

available t o us, it is unclear whether Ordinance 9489's special

exemption procedure supplants section 29-8(f)(1)’s substantive

criteria or supplements them. For the purposes of this appeal, we

will assume that an applicant must clear both hurdles to attain a

special exemption. We note, however, that it may be possible to

envision circumstances in which a strict and onerous application of

section 29- 8(f)(1) to a proposed facility for the disabled might

produce tension with the FHA’s mandate that municipalities

reasonably accommodate the needs of the disabled.

4 a s ite plan is submitted; the relevant Lubbock authorities must

conduct a health and fire inspection; all persons owning property

within 200 feet of the structure at issue are given notice; and the

ZBA holds a public hearing at which all persons may express an

opinion before making a decision on whether to grant a special

exemption. The Ordinance subjects a facility attempting to qualify

for a special exemption to all the requirements of the permitting

process described above except three: the minimum square footage

per bedroom, the limit of two persons per bedroom, and the

designation of a separate bedroom for the “care provider.” 2

Late in 1991, as Ordinance 9489 took e ffect, Elderhaven

applied for a special exe mption allowing it to house up to 12

elderly disabled individuals as its Slide Road residence. In early

1992, Lubbock authorized Elderhaven to house 10 persons at Slide

Road. Contending that Ordinance 9489 discriminated against persons

with disabilities, Elderhaven sue d the City in federal court

seeking declaratory and injunction re l ief. Two organizations

advocating rights for the disabled intervened as plaintiffs.

Discovery in the case included several depositions,5

affidavits, and interrogatories clarifying how the City administers

the Ordinance. Officials conducting fire and health inspections

provided evidence as to the purpose of those inspections; generally

stated, these inspections are designed to assure that the

facilities comply with certain minimal fire and health requirements

such as food and garbage sanitation, water supply, emergency exits,

and alarms. City officials use forms available for other purposes

to conduct their inspections.

In response to questions from plaintiffs’ counsel designed to

illustrate the inappropriateness of some of the Ordinance’s

criteria to a situation involving groups of persons having

minimally disabling handicaps, City officials testified at

depo sition that, in some cases, certain requirements of the

Ordinance would simply be waived or interpreted in such a way as to

minimize their importance. One City official testified, for

instance, that the requirement th at a “care-provider” have a

“separate bedroom” might be met in certain situat ions by

designating a house’s living room as that separate bedroom. When

confronted with a hypothetical involving four able-bodied deaf

persons desiring to live together in an R-1 district, another City

official suggested that one of the deaf residents could be

designa ted as the “care provider,” suggesting that in this

circumstance the “care provider” is nothing more than the person

the City considers to be on the hook for assuring full compliance3 Interrogatory answers from the City clarified that, in

general, the term “care provider” denotes simply the person the

City considers responsible for assuring compliance with any permit

or special exemption requirements.

6 with the applicable terms of the Ordinance. 3 Another City official

interpreted the term “separate bedroom” as, under certain

circumstances, allowing the care provider to live in a bedroom with

a disabled person. Most officials addressing the subject agreed

that the “care provider” need not actually live in the specified

room, if circumstances suggested that such a requirement would be

inappropriate.

In the midst of litigation in this case, Elderhaven bought a

second house at 4713 22nd Street, Lubbock. After one unsuccessful

attempt to obtain City permission to house additional elderly

disabled individuals at 22nd Street, Elderhaven applied fo r and

obtained a special exemption allowing it to house eig ht such

persons at this residence.

The district court granted summary judgment to the defendants.

Elderhaven pursued an appeal, but the intervenor-plaintiffs in the

litigation did not. On appeal, we vacated the district court’s

decision for reconsideration in light of City of Edmonds v. Oxford

House, Inc.

, 115 S. Ct. 1776 (1995). On remand, the district court

again granted summary judgment for the defendants, this time on two

separate grounds. First, the court found that Ordinance 9489

constituted a maximum occupancy restriction within the meaning of

42 U.S.C. § 3607(b)(1), despite City o f Edmonds ’ narrow

construction of that exception. Second, the district court found7

that Ordinance 9489 was a reasonable accommodation within the

meaning of 42 U.S.C. § 3604(f)(3). Elderhaven, joined in part by

the United States as amicus curiae, again appealed.

We hold that, on the basis of the record currently before us,

Elderhaven has not borne its burden of proving that the City of

Lubbock has failed to reasonably ac commodate the needs of the

disabled in its regulation of housing. We make no comment on the

correctness of the district cou rt’s decision regarding section

3607(b)(1)’s exception for maximum occupancy requirements, nor do

we intimate any view as to whether the Ordinance is susceptible to

illegal application by Lubbock officials.

II

42 U.S.C. § 3604(f)(1) makes unlawful discrimination against

the disabled in housing. 42 U.S.C. § 3604(f)(3)(B) defines

discrimination as “a refusal to make reasonable accommodations in

rules, policies, practices, or services, when such accommodations

may be necessary to afford such person equal opportunity to use and

e njoy a dwelling.” The question is thus whether Lubbock’s

ordinance, as it operates in the context of Lubbock’s overall

zoning law, constitutes a reasonable accommodation of the housing

needs of the disabled.

Initially, we reject the suggestion of certain courts that a

Fair Housing Act defendant bears the burden of proof on the

question of reasonableness. S ee Hovsons, In c. v. Township of

Brick

, 89 F.3d 1096, 1103 (3d Cir. 1996). The text of the Fair8

Housing Act provides no hint that Congress sought to change the

normal rule that a plaintiff bears the burden of proving a

violation of law by a preponderance of the evidence. Our case law

under section 504 of the Rehabilitation Act, 29 U.S.C. § 794,

supports the imposition of the burden of proof on Elderha ven.

McGregor v. Louisiana State University Board of Supervisors

, 3 F.3d

850, 859 n.11 (5th Cir. 1993), cert. denied

, 510 U.S. 1131 (1994).

Elderhaven has not borne its burden to raise a genuine issue

of fact as to whether the City has applied Ordinance 9489 in a

manner that fails to reasonably a ccommodate the needs of the

disabled. We assume that the plaintiffs are correct that a

reasonable accommodation is one that does not place an undue burden

upon the targeted government entity, despite its indeterminacy. We

need not disagree with the plaintiffs that the terms of Ordinance

9489, if applied rig idly and in a manner blind to the varying

circumstances attending the needs of persons with disa bilities,

might constitute a violation of the Fair Housing Act. The example

of the plaintiff illustrates their po int of a permitting

requirement and health inspection as applied to a group of three or

four deaf persons wishing to live tog ether in an R-1 zone. Even

here, how ever, the fact that the residents are deaf may give the

City a legitimate cause for concern in terms of safety, as, for

instance, unmodified smoke alarms could not warn occupants of the

danger of fire. We might also imagine a permitting process causing

delays that inhibit the disabled from competing in Lubbock’s tight

rental market. Our task, however, is to decide concrete disputes.9

It is not to imagine.

The undisputed evidence in the record reflects th e City’s

willingness to interpret its ordinance flexibly and in accordance

with the circumstances of each case. Such flexibility may be an

essential component of a process designed to provide reasonable

accommodation and to operate in the marginal circumstances of the

market. The record reflects, for instance, that the City no longer

collects the permit application fee specifically requ ired by the

text of the ordinance.

We assume that plaintiffs are correct that a municipality may

violate the Fair Housing Act by placing unduly burdensome

conditions upon a proposed residence for the disabled. S ee, e.g.

,

Marbrunak, Inc. v. City of Stow

, 974 F.2d 43, 45 & n.1 (6th Cir.

1992). The City’s permitting process as it has functioned in the

pas t is relatively rapid, and its inspections and building

requirements are not unusually burdensome. The City’s interest in

these inspections and the permitting process in general is apparent

from the face of the Ordinance’s preamble, which states, “WHEREAS,

it has been the experience of the City of Lubbock that unregulated

and unlicensed homes for handicapped persons may not necessarily

provide adequately for the health and safety of th e residents.”

Again, the permitting process and the inspections might be wholly

inappropriate for certain situations, but the record illustrates

the City’s willingness to adjust under these circumstances.

The City has granted almost all of the permit and special

exemption applications it has received. Elderhaven’s arguments10

depend almost entirely on unrealized fear of possible application

of the Ordinance. As yet, Elderhaven’s only real concrete

c omplaint is that it sought permission from the City to house 20

residents, and the City permitted only 18. We recognize that the

economics of group living arrangements often require a critical

mass of residents in order to make feasible the type of alternative

living arrang ements that the Fair Housing Act was designed to

encourage. Elderhaven has never alleged, much less proven, that 20

is that critical number.

We iterate that our decision in this case is limited to the

record before us, and we have relied on the City’s past record of

flexible interpretation and its current intention to continue this

policy. In sum, our question is whether the City of Lubbock has

reasonably accommodated handicapped persons in its zoning

decisions. The ordinance sets a framework for decision-making, but

is only part of a pro cess. Whatever might have been, Elderhaven

has failed to raise a genuine issue of material fact as to a

violation of its rights under the Fair Housing Act.

AFFIRMED.