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 administering 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 purpose
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 non-
disabled, 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,
2
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 plots 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 illustrating 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
another 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 the “care-
provider” 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 including
1
Originally, the Ordinance required a $25.00 permit fee
application. The parties agree that the City no longer collects
this fee.
3
a site 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 effect, Elderhaven
applied for a special exemption 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 sued the City in federal court
seeking declaratory and injunction relief. Two organizations
advocating rights for the disabled intervened as plaintiffs.
Discovery in the case included several depositions,
2
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 to 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.
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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
deposition 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 that a “care-provider” have a
“separate bedroom” might be met in certain situations 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
designated 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 compliance
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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 for and
obtained a special exemption allowing it to house eight 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 of Edmonds’ narrow
construction of that exception. Second, the district court found
3
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
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 accommodate the needs of the
disabled in its regulation of housing. We make no comment on the
correctness of the district court’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
enjoy 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. See Hovsons, Inc. v. Township of
Brick, 89 F.3d 1096, 1103 (3d Cir. 1996). The text of the Fair
7
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 Elderhaven.
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 accommodate 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 rigidly and in a manner blind to the varying
circumstances attending the needs of persons with disabilities,
might constitute a violation of the Fair Housing Act. The example
of the plaintiff illustrates their point of a permitting
requirement and health inspection as applied to a group of three or
four deaf persons wishing to live together in an R-1 zone. Even
here, however, 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.
8
It is not to imagine.
The undisputed evidence in the record reflects the 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 required 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. See, 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
past 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 the 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 arguments
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depend almost entirely on unrealized fear of possible application
of the Ordinance. As yet, Elderhaven’s only real concrete
complaint 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 arrangements 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 process. 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.
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