District Court Holds Requirement to Remove Pool Did Not Violate Fair Housing Act

Plaintiffs, whose son is considered disabled under Title VIII of the Civil Rights Act of 1968 (more commonly known as the Fair Housing Act (“FHA”)), brought suit seeking injunctive relief and a declaratory judgment against the Town of Farmington. The focus of their claims is the Town’s allegedly discriminatory conduct in granting a variance for an above-ground swimming pool with protective fencing, but further requiring that both the pool and fence be removed upon sale of the home or when the disabled son no longer resides there. Plaintiffs assert this requirement burdens them in violation of the reasonable modifications requirement of the FHA.

In order for Plaintiffs to successfully show a violation of the relevant section of the FHA, §3604, Plaintiffs must establish disparate treatment, i.e. that their son's disability was at least partly the basis for the Town’s decision or that the Town's action had a disparate impact or effect on disabled individuals.  Here, the Court found that the Plaintiffs made only conclusory assertions that the burden of removing the pool and fencing was based on their son’s disability.  Plaintiffs also failed to demonstrate that the decision to make the initial grant of the variance was made by officials who knew of the son’s disability. The Court held that such conclusory statements, absent actual allegations in the complaint regarding the Defendant’s intent to discriminate or facts sufficient to constitute disparate-impact under the FHA were wholly insufficient to support a claim. Accordingly, the Court granted the Defendant’s motion to dismiss.

The case was Austin v Town of Farmington, 2015 WL 3604671 (W.D.N.Y.).

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