2nd Circuit Finds Town Lacked Retaliatory Motive in Keeping Restoration Condition in Variance But Reverses Summary Judgement on Provision’s Reasonableness

Plaintiffs-Appellants brought an action seeking injunctive and declaratory relief against the Town.  Plaintiffs alleged that a variance permitting installation of above-ground pool with protective fencing due to their son’s disability, but required the pool and fence be removed upon sale of the home or when their disabled son was no longer in residence, violated the Fair Housing Act (FHA). Plaintiffs also alleged that the Town retaliated against them for making an FHA claim. The U.S. District Court for the Western District of New York granted Town’s motion to dismiss, and Plaintiffs appealed.

The Second Circuit found that a plain text reading of the statute included no per se rule against land-use regulators, including restoration provisions in zoning variances or other land-use accommodations. However, the reasonableness of a requested accommodation is based upon the cost and whether it poses an undue hardship or substantial burden on the rule maker. Thus, reasonableness could not be determined on the pleadings where balancing the relevant factors would require a full evidentiary record. Accordingly, the Court reversed the dismissal of the FHA reasonableness claim.

On the retaliation claim, Plaintiffs asserted that the lack of a justification for the restoration provisions, and the existence of smaller lots in the without a prohibition on accessory structures, was sufficient to allege a prima facie case of retaliation. However, the instant restoration provision simply reinstituted generally applicable requirements once modification was no longer necessary to meet the needs of Plaintiffs’ disabled child. The Court noted the Town’s purposes could be found in documents annexed to Plaintiffs’ own motion for summary judgment: “Town-wide differences in the applicability of various land-use regulations to various developments and lots preexisted appellants’ request for a variance, and the Auburn Meadows regulations applied to appellants’ neighbors as well as to them.”  Accordingly, the Court affirmed the dismissal of appellants’ retaliation claim.

The case was Austin v. Town of Farmington, 826 F.3d 622 (2d Cir. 2016).

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