09-2963-cv Quad Enterprises Co. v. Town of Southold



### UNITED STATES COURT OF APPEALS 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 

### FOR THE SECO ND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential e ffect. 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 summ ary 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 serv e a copy of it on any party not represented by counsel.

At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl St reet, in the City of New York, on the 10 th day of March, two thousand ten.

PRESENT: JOHN M. WALKER, JR., DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges

.

_________________________________________________ QUAD ENTERPRISES CO., LLC, a succe sso r 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

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_________________________________________________ Nicholas Fortuna, Allyn & Fo rtuna LLP, New Yo rk, NY, for Plain tiffs-Appellants.

Robert J. Hindman and Brendan T. Fitzpatrick, Ahmuty, Demers & McManus, Albertson, NY, forDefendantsAppellees.

1UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of th e 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 Enterprise s Co., LLC, Constantine Kontokosta, and Jane Does 1-5 (“Plaintiffs”) appeal from the July 2, 2009, judgm ent of the United States District Court for the Eastern Di stric t of New York (Seybert, J. ), granting the motion for summary judgment of Defenda nts-Appellees T own of Southold, Town Board of the Town of Southold, Zoning Board of Appeal s of the Town of Southold, and Planning Board of the Town of Southold (“Town”) and denying Plaintiffs’ m otion for summary judgment. Plaintiffs argue that the district court erroneously found that they had failed to make out a prima facie case of discriminati on under the Fair Housing Am endments Act and Americans with Disabilities Act and failed to raise a genuine issue of m aterial fact as to whether the Town violated the Southol d Town Code . We assume the parties’ familiarity with the underlying facts, procedur a l history, and specification of the issues on appeal.

We review a grant of summary judgment de novo , constru ing the evidence in the light most favorable to the nonm oving 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 judgm ent as a matter of law.” Fed. R. Civ. P. 56(c). An issue of fact is “genuine” if “the evidence is such that a reasonab le 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 s eq. , provides that it is unlawful “[t]o discriminate in the sale or rental, or to otherwise make una vailable or deny, a dwelling to any buyer or renter because of a handicap.” Id. § 3604(f)(1). Discrim ination includes “a refusal to make reasonable accommodations in rules, po lic ies, 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 A meri cans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. , prohibits discrim ination by public entities based on disability, providing that “no qua lif ied individual with a disa bility shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a pub lic entity, or be subjected to discrim ination by any such entity.” 42 U.S.C. § 12132. Like the FHAA, the ADA requires entities to m ake reasonable accommodations for the disabled. R eg’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 discrim ination under either the FHAA or the ADA, pl aintiffs have three availabl e 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).

2Plaintiffs first argue that they have successf ully made out a prima facie case of discrimination under the disparate impact theor y. W e analyze claims of disparate impact under the FHAA and ADA under a modified vers ion of the burden-shifting analysis usually applied to employment discriminati on 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 o ccu rrence of certain outwardly neutral practices, and (2) a significantly adverse or dispropor tionate im pact on persons of a particular type produced by the defendant’s facially neu tral acts or practices.” Tsombanidis , 352 F.3d at 575 (quoting Reg’l Econ. Cmty. Action Program , 294 F.3d at 52-53) (internal quotation m arks omitted) (emphasis omitted ). Alth ough 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. Presiden t & Fellows of Yale Coll. , 237 F.3d 81, 90 (2d Cir. 2000)) (internal quotati on m arks omitted) (alterati on in original). Moreover, there must be a causal connection between th e policy at issue and the discrim inatory 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. Specif ically, Plaintiffs identify the density restrictions and buildi ng type restrictions of the zoning code and allege that these restrictions prevent them f

rom building a multifamily development for the elderly, thus limiting the access of the handicapped to desired types of housing. Plaintiffs rely principally on eviden ce that the number of handicapped people in the Town of Southold is larger than the nu m ber 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 handicap ped-acc essible units that may be built, not whether Plaintiffs may build handicapped-accessi ble units at all. What Plaintiffs are being prevented from building, moreover, is a multifamily age-restricted development. Plaintiffs needed to show that this part icular restriction cause s a disproportionately adverse impact on handicapped individuals. Because the proposed hous ing is lim ited to seniors, the relevant protect ed 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 si tu ated persons who are unaffected”). Notwithstanding that the planned development was so designed that federal regulations would require nearly all units to be handi capped-accessible, Plaintiffs have provided neither statistical nor qualitative evidence that handicapped seniors have a proportionally greater need or preference for this type of m ultifamily 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.

3Simply proffering evidence that there is a s hortage of handicapped- accessible housing in the Town of Southold compared to its ha ndicapped 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 co mmunity is insufficient proof of di sparate 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 successfu lly made out a prima facie case of discrimination under the theory of disparate treatment under the FHAA. “To establish a prima facie case of discrimina tion 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 them selves or by those to whom the decision-makers were knowingly responsive.’” Reg’l Econ. Cmty. Action Program , 294 F.3d at 49 (quoting LeBlanc-Stern berg 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 discrim inated against on a prohibited ground, which may occur via a substa ntial showing that defendants’ proffered explanation was false or pretextual. See id. Factors that m ay be considered in evaluating an intentional discrimination claim include “(1) the discrim inatory impact of the governmental decision; (2) the decision’s histor ical 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 (intern al quotation mark s omitted). When those factors are weighed, taking particularly into account the lack of prova ble discriminatory impact of the policy, we conclude for substantially the reasons stated by the district cou rt that Plaintiffs have not shown animus as a signi f icant 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 discrimi nation 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 ‘traditiona l ru les or practices if necessary to permit a person with handicaps an equal opportunity to use and enjoy a dwelling.’” Reg’l E con. 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 plainti ff must show that he will likely be denied an equal opportunity to enjoy the housing of his ch oice absent the accommodation. See Tsombanidis , 352 F.3d at 578. “A defendant must incur reasonable costs and take modest, affirmative steps to accommoda te the handicapped as long as the accommodations sought do not pose an undue hard ship or a substantial b urden.” Id.

In this case, Plaintiffs have failed to show that perm itting them to build a multifamily age-restricted development is or m ay 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

45 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 appl ying land use regulations in a manner that will exclude people with disabilities enti rely 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 ord er to fulfill this element, Plaintiffs needed to provide ev iden ce that “the desired accommodation will affirmatively enhance a disabled plaintif f’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 wh ich 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 developm ent of handicappedaccessible units is fiscally unfeasible at th e lo wer densities required by the current zoning. Therefore, we need not consid er whether the requested accomm odation is reasonable. 1

Finally, Plaintiffs contend that Sec tion 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 s o. Plaintif fs read the provision to indicate that any action taken on a petition for amen dm ent triggers the requirement of a public hearing. The language unambiguously does not support this reading. The provision states that the Town may am end the zoning code from time to time by proceeding in the given manner. This is not a rule requiring that all decisions on am endment be made via a given procedure, but rather one that controls how a posit ive decision is m ade: for a change to be made under these requirements , the Board must first have m ade 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. Th e T own here did not violate that order when no change was made; it requested a repo rt and then determined that the amendment would not move forw ard. In such a situation, th e 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 affirm ed.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 This Court has not yet determined which pa rty bears the burden in proving whether the accommodation is reasonable. However, we need not reach that issue in this appeal.