09-2963-cv 

Quad Enterprises Co. v. Town of Southold 

1 UNITED STATES COURT OF APPEALS 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or 

after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and 

this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a 

party must cite either the federal appendix or an electronic database (with the notation “summary 

order”). A party citing a summary order must serve a copy of it on any party not represented by 

counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held 

at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of 

New York, on the 10th day of March, two thousand ten. 

PRESENT: 

 JOHN M. WALKER, JR., 

DEBRA ANN LIVINGSTON, 

 GERARD E. LYNCH, 

 Circuit Judges. 

_________________________________________________ 

 

QUAD ENTERPRISES CO., LLC, a successor in interest to Quad 

Enterprises Co., a partnership, CONSTANTINE KONTOKOSTA, in 

his capacity as a Member of Quad Enterprises Co., and JANE DOES 1-5, 

 Plaintiffs-Appellants, 

 -v.- No. 09-2963-cv 

TOWN OF SOUTHOLD, TOWN BOARD OF THE TOWN OF 

SOUTHOLD, ZONING BOARD OF APPEALS OF THE TOWN 

OF SOUTHOLD and PLANNING BOARD OF THE TOWN OF SOUTHOLD, 

 Defendants-Appellees. 

_________________________________________________ 

Nicholas Fortuna, Allyn & Fortuna LLP, New York, NY, 

for Plaintiffs-Appellants. 

Robert J. Hindman and Brendan T. Fitzpatrick, Ahmuty, 

Demers & McManus, Albertson, NY, for DefendantsAppellees. 

1
 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court be AFFIRMED. 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

 Plaintiffs-Appellants Quad Enterprises Co., LLC, Constantine Kontokosta, and 

Jane Does 1-5 (“Plaintiffs”) appeal from the July 2, 2009, judgment of the United States 

District Court for the Eastern District of New York (Seybert, J.), granting the motion for 

summary judgment of Defendants-Appellees Town of Southold, Town Board of the 

Town of Southold, Zoning Board of Appeals of the Town of Southold, and Planning 

Board of the Town of Southold (“Town”) and denying Plaintiffs’ motion for summary 

judgment. Plaintiffs argue that the district court erroneously found that they had failed to 

make out a prima facie case of discrimination under the Fair Housing Amendments Act 

and Americans with Disabilities Act and failed to raise a genuine issue of material fact as 

to whether the Town violated the Southold Town Code. We assume the parties’ 

familiarity with the underlying facts, procedural history, and specification of the issues on 

appeal. 

 We review a grant of summary judgment de novo, construing the evidence in the 

light most favorable to the nonmoving party. Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 

2003). Summary judgment is appropriate when “there is no genuine issue as to any 

material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(c). An issue of fact is “genuine” if “the evidence is such that a reasonable jury 

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986). 

 The Fair Housing Amendments Act (“FHAA”), in an amendment of the Fair 

Housing Act, 42 U.S.C. § 3601 et seq., provides that it is unlawful “[t]o discriminate in 

the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or 

renter because of a handicap.” Id. § 3604(f)(1). Discrimination includes “a refusal to 

make reasonable accommodations in rules, policies, practices, or services, when such 

accommodations may be necessary to afford [a handicapped] person equal opportunity to 

use and enjoy a dwelling.” Id. § 3604(f)(3)(B). The Americans with Disabilities Act 

(“ADA”), 42 U.S.C. § 12101 et seq., prohibits discrimination by public entities based on 

disability, providing that “no qualified individual with a disability shall, by reason of 

such disability, be excluded from participation in or be denied the benefits of the services, 

programs, or activities of a public entity, or be subjected to discrimination by any such 

entity.” 42 U.S.C. § 12132. Like the FHAA, the ADA requires entities to make 

reasonable accommodations for the disabled. Reg’l Econ. Cmty. Action Program, Inc. v. 

City of Middletown, 294 F.3d 35, 45 (2d Cir. 2002). Both statutes are applicable to 

municipal zoning decisions. Id. at 45-46 (citing Forest City Daly Hous., Inc. v. Town of 

N. Hempstead, 175 F.3d 144, 151 (2d Cir. 1999)). “To establish discrimination under 

either the FHAA or the ADA, plaintiffs have three available theories: (1) intentional 

discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a 

reasonable accommodation.” Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 573 

(2d Cir. 2003). 

2
 Plaintiffs first argue that they have successfully made out a prima facie case of 

discrimination under the disparate impact theory. We analyze claims of disparate impact 

under the FHAA and ADA under a modified version of the burden-shifting analysis 

usually applied to employment discrimination cases under Title VII of the Civil Rights 

Act of 1964. Id. at 575; Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 

926, 934 (2d Cir. 1988); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

In order to establish a prima facie case of disparate impact, the plaintiff must provide 

evidence showing “(1) the occurrence of certain outwardly neutral practices, and (2) a 

significantly adverse or disproportionate impact on persons of a particular type produced 

by the defendant’s facially neutral acts or practices.” Tsombanidis, 352 F.3d at 575 

(quoting Reg’l Econ. Cmty. Action Program, 294 F.3d at 52-53) (internal quotation marks 

omitted) (emphasis omitted). Although the plaintiff need not show discriminatory intent 

under this theory, it must prove that the practice “actually or predictably results in . . . 

discrimination.” Id. (quoting Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 90 

(2d Cir. 2000)) (internal quotation marks omitted) (alteration in original). Moreover, 

there must be a causal connection between the policy at issue and the discriminatory 

effect. Id. 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

 In this case, Plaintiffs have identified a facially neutral policy: the zoning code of 

Southold and its application to requests for grants of rezoning. Specifically, Plaintiffs 

identify the density restrictions and building type restrictions of the zoning code and 

allege that these restrictions prevent them from building a multifamily development for 

the elderly, thus limiting the access of the handicapped to desired types of housing. 

Plaintiffs rely principally on evidence that the number of handicapped people in the 

Town of Southold is larger than the number of handicapped-accessible housing units. 

This evidence, however, is insufficient to show that the zoning restrictions cause 

disproportionate impact. 

 As the district court noted, density and multifamily dwelling restrictions limit 

only the number and building type of handicapped-accessible units that may be built, not 

whether Plaintiffs may build handicapped-accessible units at all. What Plaintiffs are 

being prevented from building, moreover, is a multifamily age-restricted development. 

Plaintiffs needed to show that this particular restriction causes a disproportionately 

adverse impact on handicapped individuals. Because the proposed housing is limited to 

seniors, the relevant protected population is seniors with handicaps and the appropriate, 

similarly situated comparison group is the non-handicapped senior community; age itself 

is not a protected category under the FHAA or ADA. Id. at 576-77 (stating that evidence

of disparate impact should compare “members of a protected group that are affected by 

the neutral policy and . . . similarly situated persons who are unaffected”). 

Notwithstanding that the planned development was so designed that federal regulations 

would require nearly all units to be handicapped-accessible, Plaintiffs have provided 

neither statistical nor qualitative evidence that handicapped seniors have a proportionally 

greater need or preference for this type of multifamily age-restricted unit than do nonhandicapped seniors. Moreover, as we noted in Tsombanidis, the comparison should 

“identif[y] the handicap and allow[] for a causal analysis between the claim of 

discrimination based on the handicap . . . and the facially neutral policy.” Id. at 577. 

3
Simply proffering evidence that there is a shortage of handicapped-accessible housing in 

the Town of Southold compared to its handicapped population does not show that the 

neutral policy at issue is the cause. See Budnick v. Town of Carefree, 518 F.3d 1109, 

1119 (9th Cir. 2008) (“[T]he absence of a certain type of facility alone is not actionable; 

in other words, proof of a void in the community is insufficient proof of disparate 

impact.”). 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

Plaintiffs also argue that they have successfully made out a prima facie case of 

discrimination under the theory of disparate treatment under the FHAA. “To establish a 

prima facie case of discrimination under the FHA[A] and the ADA, the plaintiffs must 

present evidence that ‘animus against the protected group was a significant factor in the 

position taken by the municipal decision-makers themselves or by those to whom the 

decision-makers were knowingly responsive.’” Reg’l Econ. Cmty. Action Program, 294 

F.3d at 49 (quoting LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995)) 

(emphasis omitted). Once plaintiffs make out a prima facie case, then defendants must 

provide a legitimate, nondiscriminatory reason for their decision. Id. Finally, the burden 

returns to plaintiffs to prove that they were intentionally discriminated against on a 

prohibited ground, which may occur via a substantial showing that defendants’ proffered 

explanation was false or pretextual. See id. Factors that may be considered in evaluating 

an intentional discrimination claim include “(1) the discriminatory impact of the 

governmental decision; (2) the decision’s historical background; (3) the specific sequence 

of events leading up to the challenged decision; (4) departures from the normal 

procedural sequences; and (5) departures from normal substantive criteria.” 

Tsombanidis, 352 F.3d at 580 (internal quotation marks omitted). When those factors are 

weighed, taking particularly into account the lack of provable discriminatory impact of 

the policy, we conclude for substantially the reasons stated by the district court that 

Plaintiffs have not shown animus as a significant factor in the Town’s application of 

zoning rules. 

 Plaintiffs also appeal the determination of the district court that they failed to 

make out a prima facie case of discrimination based on a failure to reasonably 

accommodate. “A municipality discriminates in violation of the FHA[A] [or] the ADA . . 

. if it refuses to make changes to ‘traditional rules or practices if necessary to permit a 

person with handicaps an equal opportunity to use and enjoy a dwelling.’” Reg’l Econ. 

Cmty. Action Program, Inc., 294 F.3d at 53 (quoting Shapiro v. Cadman Towers, Inc., 51 

F.3d 328, 333 (2d Cir. 1995)). In order to prove a reasonable accommodation claim 

under these statutes, a plaintiff must show that he will likely be denied an equal 

opportunity to enjoy the housing of his choice absent the accommodation. See 

Tsombanidis, 352 F.3d at 578. “A defendant must incur reasonable costs and take 

modest, affirmative steps to accommodate the handicapped as long as the 

accommodations sought do not pose an undue hardship or a substantial burden.” Id. 

 In this case, Plaintiffs have failed to show that permitting them to build a 

multifamily age-restricted development is or may be necessary to allow handicapped 

seniors an equal opportunity to use and enjoy housing in the community. See Smith & 

Lee Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 795 (6th Cir. 1996) (“[T]he

4
5

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

 

[FHAA] prohibits local governments from applying land use regulations in a manner that 

will exclude people with disabilities entirely from zoning neighborhoods, particularly 

residential neighborhoods, or that will give disabled people less opportunity to live in 

certain neighborhoods than people without disabilities.” (quoting Bryant Woods Inn, Inc. 

v. Howard County, Md., 911 F. Supp. 918, 946 (D. Md. 1996))). In order to fulfill this 

element, Plaintiffs needed to provide evidence that “the desired accommodation will 

affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of 

the disability.” Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995). As discussed above, 

Plaintiffs have offered no evidence that the dense multifamily aspect of its proposed 

development, the characteristic for which it requested accommodation, 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 handicappedaccessible units is fiscally unfeasible at the lower densities required by the current 

zoning. Therefore, we need not consider whether the requested accommodation is 

reasonable.1

 

 Finally, Plaintiffs contend that Section 280-157 of the Southold Town Code 

obligated the Town to hold a public hearing on their petition for a zoning change and that 

the Town violated the Code in failing to do so. Plaintiffs read the provision to indicate 

that any action taken on a petition for amendment triggers the requirement of a public 

hearing. The language unambiguously does not support this reading. The provision 

states that the Town may amend the zoning code from time to time by proceeding in the 

given manner. This is not a rule requiring that all decisions on amendment be made via a 

given procedure, but rather one that controls how a positive decision is made: for a 

change to be made under these requirements, the Board must first have made a written 

request to the Town Planning Board to get a report and then set a time and place for the 

requisite public hearing, with at least 10 days notice. The Town here did not violate that 

order when no change was made; it requested a report and then determined that the 

amendment would not move forward. In such a situation, the language of the provision 

does not require a public hearing. 

All arguments not otherwise discussed in this summary order are found to be 

moot or without merit. 

 For the foregoing reasons, the judgment of the district court is hereby affirmed. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk 

 

1

 This Court has not yet determined which party bears the burden in proving whether the 

accommodation is reasonable. However, we need not reach that issue in this appeal.