Bryant Woods Inn Inc v. Howard County MD

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRYANT WOODS INN, INCORPORATED,
Plaintiff-Appellant,

v.

HOWARD COUNTY, MARYLAND;
HOWARD COUNTY PLANNING BOARD,
Defendants-Appellees.

THE AMERICAN ASSOCIATION OF
No. 96-1244
RETIRED PERSONS; THE BAZELON
CENTER; ASSISTED LIVING FACILITIES
ASSOCIATION OF AMERICA; ASSISTED
LIVING LEGAL DEFENSE AND
EDUCATION FUND, INCORPORATED;
NATIONAL FAIR HOUSING ALLIANCE;
OXFORD HOUSE,
Amici Curiae.
BRYANT WOODS INN, INCORPORATED,
Plaintiff-Appellee,

v.

HOWARD COUNTY, MARYLAND;
HOWARD COUNTY PLANNING BOARD,
Defendants-Appellants.

THE AMERICAN ASSOCIATION OF
No. 96-1284
RETIRED PERSONS; THE BAZELON
CENTER; ASSISTED LIVING FACILITIES
ASSOCIATION OF AMERICA; ASSISTED
LIVING LEGAL DEFENSE AND
EDUCATION FUND, INCORPORATED;
NATIONAL FAIR HOUSING ALLIANCE;
OXFORD HOUSE,
Amici Curiae.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-95-595-S)

Argued: March 5, 1997

Decided: August 25, 1997

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Wilkins and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Beth Pepper, STEIN & SCHONFELD, Baltimore, Mary-
land, for Appellant. Louis Paul Ruzzi, Senior Assistant County Attor-

2
ney, Paul Tebbetts Johnson, Deputy County Solicitor, Ellicott City,
Maryland, for Appellees. ON BRIEF: Barbara M. Cook, Howard
County Solicitor, Ellicott City, Maryland, for Appellees. Lois G. Wil-
liams, Ellen S. Winter, HOWREY & SIMON, Washington, D.C.;
John T. Relman, Christine R. Ladd, WASHINGTON LAWYERS
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS,
Washington, D.C., for Amici Curiae.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Bryant Woods Inn, Inc., a group home for handicapped persons,
seeks to expand from 8 residents to 15 residents. When Howard
County, Maryland, refused to waive its neutral zoning regulation to
allow this expansion, Bryant Woods Inn sued the county, contending
that it had violated the Fair Housing Act, 42 U.S.C.§ 3601 et seq.,
by refusing to make a reasonable accommodation. Because Bryant
Woods Inn has not shown that its proposed expansion relates to the
accommodation of disabled residents in seeking equality of housing
opportunities, we affirm the district court's summary judgment
entered in favor of the county.

I

Richard Colandrea, the owner and resident of an 11-bedroom house
in Columbia, Maryland, rents portions of his house to 8 elderly per-
sons who suffer from Alzheimers disease and other forms of dementia
and disability. Colandrea, together with his mother, operates the
licensed group home through a for-profit corporation, Bryant Woods
Inn, Inc. The applicable zoning regulations issued by Howard County,
where the house is located, permit this use of Colandrea's house as
a matter of right. See Howard County, Md., Zoning Regulations
§ 110.C.4.b.

Seeking to expand his group home from 8 to 15 disabled or elderly
residents, Colandrea filed an application with the appropriate Mary-
land state licensing agencies. The agencies denied Colandrea's

3
request, however, until Colandrea had obtained zoning approval for
the expansion from Howard County.

Colandrea filed an application with Howard County for a zoning
variance, locally called an amendment to the neighborhood's Final
Development Plan, to use his house as a "group care facility" limited
to 15 disabled residents who will benefit from "the opportunity to live
in a smaller, supervised home that provides some daily care in a struc-
tured social environment." The proposed expansion would include
two daytime employees and one employee at other times. Colandrea
proposed to provide existing off-street parking for five to six vehicles
for use by employees and occasional visitors. The application indi-
cates that the residents themselves generally do not drive and there-
fore the facility would not need to provide parking for eight vehicles
as required by the applicable zoning regulations, Howard County,
Md., Zoning Regulations § 133.D.7.f.

Applicable regulations provide generally for approval of requests
"only if [the Planning Board] finds that: (1) the use is consistent with
the land use designation of the property . . . and compatible with
existing or proposed development in the vicinity,[and] (2) the use
will not adversely affect vicinal properties." Howard County, Md.,
Zoning Regulations § 125.D.2.c. More specifically, any group care
facility for more than 8 persons is deemed a nursing home, see id.
§ 103.A.55, and requires one parking space for every 2 beds, or at
least 8 spaces for the 15 residents anticipated in Colandrea's applica-
tion, see id. § 133.D.7.f. A residential group home with up to eight
residents is required to have only four parking spaces. See id.
§§ 133.D.1.c & 133.D.2.a.

The staff at the Howard County Department of Planning and Zon-
ing recommended denial of Colandrea's application because it lacked
the information necessary for a decision and the county received no
response to its requests for information. Colandrea did respond, how-
ever, after the staff recommended denial. The Howard County Plan-
ning Board decided to proceed with a hearing and to receive
Colandrea's response at the hearing.

The Howard County Planning Board conducted a full public hear-
ing on Colandrea's application in February 1994 at which persons tes-

4
tified both for and against the zoning change. Speaking for the
expansion were persons representing Colandrea, the Howard County
Office of Aging, and the county's Alzheimer Association, and speak-
ing against it were neighbors and three neighborhood associations, as
well as the Department of Planning and Zoning staff.

The board received information that only 3 of more than 32
licensed group homes in Howard County had more than 8 residents
and that the smaller homes seemed to be functioning"reasonably
well" so that "there is a viable position for a facility of up to 8
patients." It received letters from residents reporting that the Colan-
drea family had operated several businesses from their house which
"seem[ed] to include a junk hauling business and a rooming house."
One neighbor commented at the hearing:

This kind of thing, this institutional use needs to be in a dif-
ferent area. As it is now, I don't think anybody has a prob-
lem with it. It's this expansion and the construction and the
additional parking that's really going to throw it over. The
real reason that I think more than eight is needed .. . is the
pure economies of scale. I had heard the number quoted
twenty-five hundred dollars a month is what each resident
pays. Well if you multiply that by 12 months times 8 resi-
dents, you're talking about a quarter of a million dollars of
receipts in a year. That's a pretty good size in-home busi-
ness and we as the neighbors feel like we're struggling
against a business in this case.

Other neighbors expressed concern about traffic and congestion. One
board member added her own comments that when looking at the
property at about 9:30 in the morning and again at 4:30 in the after-
noon she observed "parking all over the place and also parking in the
driveway" and concluded that given the relatively small lot size in the
rest of the neighborhood, an expansion of the facility would be too
"intense to use on this particular lot" and would result in overflow
parking onto the residential street.

In a unanimous written opinion dated March 31, 1994, the Planning
Board denied Colandrea's request for a variance to enable him to
expand his facility. In its opinion it found as fact that the proposed

5
parking plan "accommodates between four and six vehicles on the
site," but "does not allow for easy circulation of the accommodated
vehicles and would likely result in fewer cars actually using on-site
parking, thus forcing overflow parking onto the street." The board
determined that this adverse effect would be aggravated by the
wedged shape of the property which gives it a narrow road frontage
available for on-street parking. It also found that"even the existing
use generates parking congestion on the street. This situation would
be exacerbated by Petitioner's proposed expansion." Observing that
current zoning requires provision for 8 off-street parking spaces for
a group home having 15 residents, the board decided not to waive the
minimum requirement because it would "undermine the basic purpose
of that requirement and the legitimate interest of the county in reduc-
ing the parking and traffic congestion associated with an intensified
land use in a residential setting, particularly where the existing use
already generates congestion." The board also found that denial of the
amendment would not limit housing opportunities for the disabled in
contravention of the Fair Housing Act. The board observed that more
than 30 assisted-living facilities with 8 or fewer residents exist in
Howard County to provide housing opportunity for the elderly and
disabled and concluded that 8 residents is a reasonable breakpoint for
economic viability and for requiring additional scrutiny of specific
impacts. Observing that only 3 group care facilities have 15 residents,
the board noted that each one of those facilities has between one and
three acres of property, whereas Colandrea's has roughly one-third an
acre.

Colandrea moved for reconsideration of the board's decision based
on his assurance that none of the disabled residents would park a car
and that his expansion would definitely be limited to 15 persons. No
further evidence was provided, however, and the board denied Colan-
drea's motion for reconsideration.

The Planning Board's decision and order became final because
Colandrea did not appeal to the Howard County Board of Appeals as
provided for in Howard County Code § 16.900(j)(2)(iii), or to the Cir-
cuit Court for Howard County. Instead, he filed this action through
his corporation, Bryant Woods Inn, Inc., alleging that Howard County
intentionally discriminated against Bryant Woods Inn and failed to

6
make a reasonable accommodation for the handicapped in violation
of the Fair Housing Act.

On cross-motions for summary judgment, the district court ruled
that plaintiffs had failed to present evidence on which a finder of fact
could base a conclusion of intentional discrimination. The court also
concluded that Howard County's refusal to make an accommodation
was justified because the requested accommodation would "funda-
mentally alter the nature of Howard County's system of land use reg-
ulation." Moreover, the court found, any accommodation was not
"necessary" under the Fair Housing Act because numerous other
group homes existed in Columbia, Maryland, having from 18 to 23%
vacancy rates. Finally, the court denied Howard County's request for
attorneys fees.

Both parties have appealed. On its appeal, Bryant Woods Inn
argues only that the county denied it reasonable accommodation,
abandoning its claim of intentional discrimination, and on its cross-
appeal, Howard County argues that the district court applied the
wrong legal standard in denying its application for attorneys fees.

II

Howard County raises three preliminary defenses that we must
address because they go to the appropriateness of our considering this
appeal at this time. The county contends (1) that Bryant Woods Inn
failed to exhaust its state administrative remedies, (2) that the issues
it now raises are not ripe for decision, and (3) that under Burford v.
Sun Oil Co., 319 U.S. 315 (1943), we should abstain in favor of the
state process. We believe that none of these defenses applies to the
circumstances before us.

On its exhaustion defense, Howard County contends that the Fed-
eral Housing Act requires Bryant Woods Inn to exhaust available
administrative remedies and that Bryant Woods Inn's failure to pur-
sue its statutorily-created right of appeal to the Howard County Board
of Appeals under Howard County Code § 16.900(j)(2)(iii) makes this
claim premature. But the Fair Housing Act provides otherwise. It per-
mits private enforcement of the Fair Housing Act"whether or not [an
administrative] complaint has been filed." 42 U.S.C. § 3613(a)(2); see

7
also Gladstone, Realtors v. Village of Bellwood; 441 U.S. 91, 106
(1979); Jackson v. Okaloosa County, 21 F.3d 1531, 1541 n.16 (11th
Cir. 1994); Huntington Branch, N.A.A.C.P. v. Town of Huntington,
689 F.2d 391, 394 n.3 (2d Cir. 1982); House Judiciary Committee
Report on the Fair Housing Amendments Act of 1988, H.R. Rep. 100-
711, at 39 (1988), reprinted in, 1988 U.S.C.C.A.N. 2173, 2200 ("An
aggrieved person is not required to exhaust the administrative process
before filing a civil action. The Committee intends for the administra-
tive proceeding to be a primary, but not exclusive, method for persons
aggrieved by discriminatory housing practices to seek redress.").

Howard County also contends that Bryant Woods Inn's claim is not
"ripe" because Bryant Woods Inn did not complete the administrative
process by appealing to the Howard County Board of Appeals. The
county argues that Bryant Woods Inn's claim was not ripe until the
county was "afforded an opportunity to make such an accommodation
pursuant to its own lawful procedures -- unless it is clear that the
result of such procedures is foredoomed." United States v. Village of
Palatine, 37 F.3d 1230, 1234 (7th Cir. 1994). In deciding whether an
issue is ripe, we decide whether the issue is substantively definitive
enough to be fit for judicial decision and whether hardship will result
from withholding court consideration. See Abbott Laboratories v.
Gardner, 387 U.S. 136, 148-49 (1967), modified on other grounds by
Califano v. Sanders, 430 U.S. 99, 104 (1977); Charter Fed. Sav. Bank
v. Office of Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992).
While the county must be afforded an opportunity to make a final
decision, the issue is sufficiently concrete for judicial resolution once
an accommodation is denied. Fair Housing Act claims are thus unlike
takings claims, which do not ripen until post-decisional procedures
are invoked without achieving a just compensation. See Williamson
County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 195
(1985). That difference is attributable to the fact constitutional injury
under the Just Compensation Clause does not arise"`unless or until
the state fails to provide an adequate postdeprivation remedy for the
property loss.'" Id. at 195 & n.14 (quoting Hudson v. Palmer, 468
U.S. 517, 532 n.12 (1984)) (emphasis added). Under the Fair Housing
Act, however, a violation occurs when the disabled resident is first
denied a reasonable accommodation, irrespective of the remedies
granted in subsequent proceedings. Bryant Woods Inn has alleged a

8
completed violation of the Fair Housing Act, which is consequently
ripe for review.

Finally, Howard County urges us to abstain under the principles of
Burford v. Sun Oil Co., 319 U.S. 315 (1943), and its progeny. The
county argues that this case is analogous to "the routine land-use dis-
putes that inevitably and constantly arise among developers, local res-
idents, and municipal officials [which are] simply not the business of
the federal courts." Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810,
828 (4th Cir. 1995) (quoting Gardner v. City of Baltimore, 969 F.2d
63, 67 (4th Cir. 1992)); see also Pomponio v. Fauquier County Bd.
of Supervisors, 21 F.3d 1319, 1328 (4th Cir. 1994) (en banc)
("[When] plaintiffs' federal claims stem solely from construction of
state or local land use or zoning law, not involving the constitutional
validity of the same and absent exceptional circumstances . . . the dis-
trict courts should abstain under the Burford doctrine to avoid inter-
ference with [local] . . . land use policy." (emphasis added)). This
argument, however, fails to recognize that unlike our Burford cases,
Bryant Woods Inn does not contest the interpretation of local law, but
argues that a federal antidiscrimination statute requires the county to
make accommodation to its properly interpreted zoning ordinance.
Hence, we are not in danger of misapplying local laws because of the
impossibility of unraveling the skein of federal claims and the inter-
pretation of local law.

III

Howard County zoning regulations allow any resident family to
house up to eight handicapped or elderly persons in its principal resi-
dence, provided state approval is obtained. See Howard County, Md.,
Zoning Regulations § 110.C.4.b. Group care facilities for more than
eight persons are defined as nursing homes for which zoning approval
is required. In connection with its application to change the zoning to
house 15 handicapped or elderly residents, Bryant Woods Inn was
unable to satisfy Howard County's traffic and parking requirements
and therefore sought a waiver of the requirements on the ground that
its residents would not need additional parking. Howard County
denied the request. Bryant Woods Inn contends that Howard County's
refusal to change its zoning for the Colandrea property to accommo-
date expansion from 8 to 15 residents violates the Fair Housing Act

9
("FHA"), as amended by the Fair Housing Amendments Act of 1988,
Pub. L. No. 100-430, 102 Stat. 1619 (adding handicap and familial
status to list of impermissible bases of discrimination). The FHA,
enacted pursuant to United States policy to provide for "fair housing
throughout the United States," 42 U.S.C. § 3601, makes it unlawful,
inter alia, to discriminate in the sale or rental of housing or otherwise
to make housing unavailable to a buyer or renter because of that
buyer's or renter's handicap or the handicap of certain persons associ-
ated with the buyer or renter. 42 U.S.C. § 3604(f). Discrimination is
defined to include "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." 42 U.S.C. § 3604(f)(3)(B).

Bryant Woods Inn contends that Howard County violated the statu-
tory duty imposed by 42 U.S.C. § 3604(f) to make "reasonable
accommodations" when it refused Colandrea's application to expand
the use of his house from 8 to 15 disabled residents. To resolve this
claim we must recognize and resolve the tension between Howard
County's right to control land uses through neutral regulation and its
duty to make reasonable accommodations for the handicapped under
the FHA. In considering this tension, Congress adopted the concept
of "reasonable accommodation," as developed in Rehabilitation Act
cases such as Southeastern Community College v. Davis, 442 U.S.
397 (1979). See H.R. Rep. 100-711, at 18, 25, 28 (1988), reprinted
in 1988 U.S.C.C.A.N. 2173, 2179, 2186 & n.66. Accordingly, we
may look to Rehabilitation Act cases to assist us in interpreting the
FHA. See, e.g., Hovsons, Inc. v. Township of Brick, 89 F.3d 1096,
1101 (3d Cir. 1996); Shapiro v. Cadman Towers, Inc., 51 F.3d 328,
334 (2d Cir. 1995); United States v. California Mobile Home Park
Management Co., 29 F.3d 1413, 1416-17 (9th Cir. 1994); Smith &
Lee Assoc., Inc. v. City of Taylor, 13 F.3d 920, 930 (6th Cir. 1993).

Land use planning and the adoption of land use restrictions consti-
tute some of the most important functions performed by local govern-
ment. See, e.g., FERC v. Mississippi, 456 U.S. 742, 768 n.30 (1982)
("regulation of land use is perhaps the quintessential state activity");
Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J.,
dissenting) ("[zoning] may indeed be the most essential function per-
formed by local government"). Local land use restrictions seek to pre-

10
vent the problems arising from the proverbial "pig in the parlor
instead of the barnyard," Village of Euclid v. Ambler Realty Co., 272
U.S. 365, 388 (1926), and to preserve "the character of neighbor-
hoods, securing `zones where family values, youth values, and the
blessings of quiet seclusion and clean air make the area a sanctuary
for people,'" City of Edmonds v. Oxford House, Inc., 514 U.S. 725,
732-33 (1995) (quoting Village of Belle Terre , 416 U.S. at 9). In
Euclid, the Court upheld the constitutionality of local land use restric-
tions, observing that "apartment houses which in a different environ-
ment would be not only entirely unobjectionable but highly desirable,
come very near to being nuisances" in residential neighborhoods of
detached houses. Euclid, 272 U.S. at 395.

In enacting the FHA, Congress clearly did not contemplate aban-
doning the deference that courts have traditionally shown to such
local zoning codes. And the FHA does not provide a"blanket waiver
of all facially neutral zoning policies and rules, regardless of the
facts," Oxford House, Inc. v. City of Virginia Beach, 825 F. Supp.
1251, 1261 (E.D. Va. 1993), which would give the disabled "carte
blanche to determine where and how they would live regardless of
zoning ordinances to the contrary," Thorton v. City of Allegan, 863 F.
Supp. 504, 510 (W.D. Mich. 1993). Seeking to recognize local
authorities' ability to regulate land use and without unnecessarily
undermining the benign purposes of such neutral regulations, Con-
gress required only that local government make "reasonable accom-
modation" to afford persons with handicaps "equal opportunity to use
4821 126 1 and enjoy" housing in those communities. 42 U.S.C.

§§ 3604(f)(3)(B).

The FHA thus requires an accommodation for persons with handi-
caps if the accommodation is (1) reasonable and (2) necessary (3) to
afford handicapped persons equal opportunity to use and enjoy hous-
ing. See 42 U.S.C. § 3604(f)(3). Because the FHA's text evidences no
intent to alter normal burdens, the plaintiff bears the burden of prov-
ing each of these three elements by a preponderance of the evidence.
See Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175, 178 (5th Cir.
1996). But see Hovsons, 89 F.3d at 1103 (placing the burden of prov-
ing that a proposed accommodation is not reasonable on the defen-
dant).

11
In determining whether the reasonableness requirement has been
met, a court may consider as factors the extent to which the accom-
modation would undermine the legitimate purposes and effects of
existing zoning regulations and the benefits that the accommodation
would provide to the handicapped. It may also consider whether alter-
natives exist to accomplish the benefits more efficiently. And in mea-
suring the effects of an accommodation, the court may look not only
to its functional and administrative aspects, but also to its costs. "Rea-
sonable accommodations" do not require accommodations which
impose "undue financial and administrative burdens," Davis, 442 U.S.
at 412, or "changes, adjustments, or modifications to existing pro-
grams that would be substantial, or that would constitute fundamental
alterations in the nature of the program," Alexander v. Choate, 469
U.S. 287, 301 n.20 (1985) (internal quotations omitted). Thus, for
example, even though a prohibition of pets in apartments is common,
facially neutral, and indeed reasonable, the FHA requires a relaxation
of it to accommodate a hearing dog for a deaf person because such
an accommodation does not unduly burden or fundamentally alter the
nature of the apartment complex. See Bronk v. Ineichen, 54 F.3d 425,
429 (7th Cir. 1995).

The "necessary" element -- the FHA provision mandating reason-
able accommodations which are necessary to afford an equal opportu-
nity -- requires the demonstration of a direct linkage between the
proposed accommodation and the "equal opportunity" to be provided
to the handicapped person. This requirement has attributes of a causa-
tion requirement. And if the proposed accommodation provides no
direct amelioration of a disability's effect, it cannot be said to be
"necessary." See Bronk, 54 F.3d at 429.

And finally, the "equal opportunity" requirement mandates not only
the level of benefit that must be sought by a reasonable accommoda-
tion but also provides a limitation on what is required. The FHA does
not require accommodations that increase a benefit to a handicapped
person above that provided to a nonhandicapped person with respect
to matters unrelated to the handicap. As the Court in Davis noted, the
requirement of even-handed treatment of handicapped persons does
not include affirmative action by which handicapped persons would
have a greater opportunity than nonhandicapped persons. Davis, 442

12
U.S. at 410-11. Congress only prescribed an equal opportunity. See
42 U.S.C. § 3604(f)(3)(B).

With this background in hand, we determine whether Bryant
Woods Inn's request to expand its facility from 8 to 15 residents is
a reasonable accommodation required by the FHA.

Bryant Woods Inn argues in this case that its requested zoning vari-
ance is reasonable because the expansion of its group home would not
increase traffic congestion since its residents do not drive. Unrefuted
testimony, however, was presented to the Howard County Planning
Board by a member who observed vehicles parked "all over the place
and also in the driveway" even under Bryant Woods Inn's current
level of occupancy. The board also received unrefuted evidence that
Bryant Woods Inn's wedge-shaped parcel affords minimal frontage
and that the parcel is less than one-third of the size of other Howard
County group homes which have 15 residents. Following a full public
hearing where the board heard the evidence of all parties, the board
found that "even the existing use generates parking congestion on the
street. This situation would be exacerbated by Petitioner's proposed
expansion." Bryant Woods Inn elected not to appeal the board's deci-
sion and is now bound by its findings on this point. Cf. Jones v. SEC,
115 F.3d 1173, 1178 (4th Cir. 1997) (recognizing res judicata effect
of factual findings of administrative agency). Thus, Bryant Woods
Inn has failed, as a matter of law, to establish in this case that its
requested accommodation is reasonable.

The more serious inadequacy of Bryant Woods Inn's position,
however, appears in connection with its effort to show that its zoning
change is "necessary." Howard County's existing zoning regulations
do not prohibit group housing for individuals with handicaps. Indeed,
the regulations permit such group housing. See Howard County, Md.,
Zoning Regulations § 110.C.4.b. Bryant Woods Inn houses 8 handi-
capped persons, and some 30 other facilities in Howard County simi-
larly do so.

The zoning variance that Bryant Woods Inn seeks is not aimed at
permitting handicapped persons to live in group homes in residential
communities -- that, as we have noted, is already permitted -- but
at expanding its group home size from 8 to 15 persons. While "some

13
minimum size may be essential to the success" of group homes,
Brandt v. Village of Chebanse, 82 F.3d 172, 174 (7th Cir. 1996), the
Inn has introduced no evidence that group homes are not financially
viable with eight residents. On the contrary, the record before the
board shows that almost 30 such homes operate viably in Howard
County with 8 or fewer residents. Moreover, while it is uncontested
that group homes are often therapeutically valuable in providing
patients with a higher quality of life and thereby helping to avoid the
functional decline which is frequently consequent to institutionaliza-
tion in a traditional nursing home, see Erdman v. City of Fort
Atkinson, 84 F.3d 960, 963 (7th Cir. 1996) (noting therapeutic value
of group homes), Bryant Woods Inn has also presented no evidence
in this case that expansion from 8 to 15 residents would be therapeuti-
cally meaningful. Thus, nothing in the record that we can find sug-
gests that a group home of 15 residents, as opposed to one of 8, is
necessary to accommodate individuals with handicaps. If Bryant
Woods Inn's position were taken to its limit, it would be entitled to
construct a 10-story building housing 75 residents, on the rationale
that the residents had handicaps.

The only suggestion in the record of advantage from the proposed
expansion is that it will financially assist Bryant Woods Inn as a for-
profit corporation. But the proper inquiry is not whether "a particular
profit-making company needs such an accommodation, but, rather do
such businesses as a whole need this accommodation. Otherwise, by
unreasonably inflating costs, one business would get such an accom-
modation while another, better run, did not." Smith & Lee Assoc., 13
F.3d at 931-32 (finding no need to accommodate expansion of a six-
person group home).

A handicapped person desiring to live in a group home in a resi-
dential community in Howard County can do so now at Bryant
Woods Inn under existing zoning regulations, and, if no vacancy
exists, can do so at the numerous other group homes at which vacan-
cies exist. The unrefuted evidence is that the vacancy rate was
between 18 to 23% within Howard County. We hold that in these cir-
cumstances, Bryant Woods Inn's demand that it be allowed to expand
its facility from 8 to 15 residents is not "necessary," as used in the
FHA, to accommodate handicapped persons.

14
Were we to require Howard County to grant a zoning variance to
allow Bryant Woods Inn to expand its group home from 8 to 15 resi-
dents without providing adequate parking and not to require the
county to grant a similar waiver for group homes not involving handi-
capped persons, the benefit would advantage Bryant Woods Inn on a
matter unrelated to the amelioration of the effects of a handicap. This
would provide not an equal opportunity to Bryant Woods Inn's resi-
dents but a financial advantage to Bryant Woods Inn. Yet, the FHA
only requires an "equal opportunity," not a superior advantage. Cf.
Alexander, 469 U.S. at 309 (applying the Rehabilitation Act). In
Alexander, the State of Tennessee modified its Medicare program --
to save taxpayer dollars -- by adopting a reduction in the compensa-
ble in-hospital care from 20 to 14 days per year. Handicapped claim-
ants argued that the change would adversely affect 27.4% of their
group while affecting only 7.8% of nonhandicapped persons. In con-
cluding that Tennessee's facially neutral change in benefits did not
discriminate against the handicapped in violation of the Rehabilitation
Act, the Supreme Court stated, "The state has made the same benefit
-- 14 days of coverage -- equally accessible to both handicapped and
nonhandicapped persons, and the State is not required to assure the
handicapped `adequate health care' by providing them with more
coverage than the nonhandicapped." Alexander, 469 U.S. at 309
(emphasis added). The Court noted that the administrative cost of
implementing a special regime for the handicapped"would be well
beyond" the reasonable accommodations required. Id. at 308. We
conclude that the same reasoning is applicable to the FHA.

In short, Bryant Woods Inn has failed to satisfy any of the three
requirements imposed by the FHA for accommodation of the handi-
capped persons.

IV

On its cross-appeal, Howard County contends that the district court
erred in refusing to award it, as the prevailing party, attorneys fees
under 42 U.S.C. § 3613(c)(2), which provides that "the court, in its
discretion, may allow the prevailing party . . . reasonable attorneys
fees and costs." The district court concluded that because the FHA is
a civil rights statute, prevailing defendants are to be treated differently
from prevailing plaintiffs, even though the statutory language is neu-

15
tral. The district court, relying on Hughes v. Rowe, 449 U.S. 5 (1980)
(per curiam) (construing 42 U.S.C. § 1988), and Christianburg Gar-
ment Co. v. EEOC, 434 U.S. 412 (1978) (construing § 706(k) of Title
VII of the Civil Rights Act of 1964), stated:

According to these Supreme Court decisions, a plaintiff who
prevails under a civil rights statute that contains a fee-
shifting provision "ordinarily is to be awarded attorneys fees
in all but special circumstances," whereas a prevailing
defendant may receive fees "only upon a finding that the
plaintiff's action was frivolous, unreasonable, or without
foundation, even though not brought in subjective bad
faith." Christianburg, 434 U.S. at 417, 421.

Howard County argues that the recent Supreme Court decision in
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), instructs that a fee-
shifting statute that permits the award of attorneys fees to a prevailing
party should be applied similarly to plaintiffs and defendants. That
case addressed an application for attorneys fees under the Copyright
Act where the Act made provision for attorneys fees to the prevailing
party, in the discretion of the district court, using language substan-
tially similar to that contained in the FHA. Compare 17 U.S.C. § 505
with 42 U.S.C. § 3613(c). The Supreme Court concluded that "pre-
vailing plaintiffs and prevailing defendants are to be treated alike, but
attorneys fees are to be awarded to prevailing parties only as a matter
of the court's discretion." Fogerty, 510 U.S. at 534.

The difficulty with Howard County's argument is that the Fogerty
Court itself recognized a policy for treating plaintiffs and defendants
differently when awarding attorneys fees under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e-5(k). It observed that the same policy
did not apply in awarding fees under the Federal Copyright Act even
though both acts utilize similar language. See Fogerty, 510 U.S. at
522-23. Acknowledging the distinction, however, Howard County
argues that for the purpose of applying the distinction, the FHA is
more similar to the Copyright Act than the Civil Rights Act of 1964
because the FHA applies "to a land use or zoning decision." While the
decision in this case involves the refusal to waive a zoning regulation,
it is not accurate to consider this a land use planning case. Instead,
this is an FHA case. The FHA prohibits discrimination because of

16
"race, color, religion, sex, familial status, or national origin," as well
as handicap. See 42 U.S.C. § 3604. We conclude that these proscrip-
tions of the FHA draw on the same policies attending Title VII of the
Civil Rights Act and that the district court was correct in applying the
Christianburg standard in considering an application for attorneys
fees under 42 U.S.C. § 3613(c)(2).

In disposing of the petition for attorneys fees, the district court con-
sidered the merit of Bryant Woods Inn's claims, observing that they
were "not without foundation." The court noted that Bryant Woods
Inn "cited numerous cases decided under the Fair Housing Act as
authority for its litigation position." Although Bryant Woods Inn did
not prevail, the district court concluded that "a reasonable legal basis
existed for [Bryant Woods Inn's] initiation and pursuit of its action"
and accordingly denied Howard County's claim for attorneys fees.

We hold that the district court applied the correct legal standard to
its consideration of Howard County's petition for attorneys fees and
that it did not abuse its discretion in denying them in this case.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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