Budnick v. Town of Carefree

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

F. G. BUDNICK, a married man; 
TEMPO INC., a Michigan
corporation,
Plaintiffs-Appellants,
v.
TOWN OF CAREFREE, a body No. 06-15841
corporate; EDWARD C. MORGAN,
personally and in his official  D.C. No.
CV-02-01420-SMM
capacity as Mayor and Town
OPINION
Councilmember; BOB COADY; MIKE
EICHER; WAYNE FULCHER,
personally and in their official
capacities as Town
Councilmembers,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding

Argued and Submitted
February 13, 2008—San Francisco, California

Filed March 11, 2008

Before: William C. Canby, Jr., David R. Thompson, and
Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

2303
 BUDNICK v. TOWN OF CAREFREE 2307

COUNSEL

Elliot L. Bien, Bien & Summers LLP, Novato, California, for
the plaintiffs-appellants.

C. Brad Woodford, Moyes Storey Ltd., Phoenix, Arizona, for
the defendants-appellees.
2308 BUDNICK v. TOWN OF CAREFREE
OPINION

MILAN D. SMITH, JR., Circuit Judge:

Plaintiffs-Appellants, F.G. Budnick, and the development
company of which he is the chief executive officer, Tempo,
Inc. (collectively, Budnick), sued Defendants-Appellees, the
Town of Carefree and four Town Council members1 (collec-
tively, Carefree) after Carefree denied Budnick’s request for
a Special Use Permit (SUP) to build a multi-level continuing-
care retirement community in Carefree. Budnick claimed that
by denying the SUP, Carefree had violated the Fair Housing
Amendments Act of 1988 (FHAA), the Americans with Dis-
abilities Act (ADA), 42 U.S.C. § 1983, the Rehabilitation Act,
and Budnick’s rights to due process and equal protection
under the Fourteenth Amendment. The district court granted
summary judgment in Carefree’s favor on all claims. Budnick
now appeals the district court’s grant of summary judgment
on his FHAA claim.2 We affirm the decision of the district
court.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 2003, Budnick filed an application for Site Plan
Approval and a SUP with the Town of Carefree. Budnick
sought the SUP to build the Residences at Carefree (RAC),
1
Budnick sued Edward C. Morgan, the Mayor and a Town Council
member, and Bob Coady, Mike Eicher, and Wayne Fulcher, Town Coun-
cil members.
2
Though the district court’s grant of summary judgment applied to all
of Budnick’s claims, we address only the FHAA claim because Budnick
did not develop any arguments related to his other claims on appeal. See
Fed. R. App. P. 28(a)(9) (“[T]he argument . . . must contain . . . appel-
lant’s contentions and the reasons for them, with citations to the authori-
ties and parts of the record on which the appellant relies.”); Edwards v.
Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (stating that the
court does not ordinarily consider on appeal matters that “are not specifi-
cally and distinctly argued in an appellant’s opening brief”).
 BUDNICK v. TOWN OF CAREFREE 2309
which, according to Budnick, would be a “luxurious, age
restricted, senior retirement residential community” that
would “primarily serv[e] the active and independent discern-
ing senior populace.” The RAC was to be located on approxi-
mately forty-acres of property that was zoned for multiple-
family residences (zone R-3) and detached single-family resi-
dences (zones R1-10 and R1-35). The proposed RAC did not
comply with the applicable zoning ordinances because it
would provide “healthcare, meal, laundry, housekeeping” and
other services that constitute “special uses,” and it was to
include “attached dwelling units rather than detached” units
and a two-story apartment building that would exceed height
limitations in the zone. The RAC plans provided for a number
of other amenities, including swimming pools, interior and
exterior dining areas, a café, a library, a salon, and recreation
areas.

Budnick’s SUP application stated that the RAC would be
a “village-like community” consisting of upscale apartments
(83), exclusive casitas (60), and opulent single-family homes
(18). The RAC would also include an “ancillary healthcare
component” consisting of six assisted-care units (four beds
per unit) and four skilled-nursing units (six beds per unit).
Though the residents would not own their housing, Budnick’s
application explained that they would enter into life care con-
tracts upon entry and would be guaranteed housing and care
for the rest of their lives, including the provision of in-home
healthcare, assisted living, and skilled-nursing care “if and
when such assistance becomes necessary.” The application
also stated that potential residents would be evaluated before
acceptance and only individuals capable of independent living
upon entry into the community would be accepted.

On October 13, 2003, the Town of Carefree Planning and
Zoning Commission held a hearing on Budnick’s application.
During this hearing, representatives of Budnick indicated that
RAC residents would be “active, vibrant members of the com-
munity.” Budnick made similar representations in a letter to
2310 BUDNICK v. TOWN OF CAREFREE
the Mayor and Town Council members on November 26,
2003; in that letter, Budnick emphasized that RAC “entry
[would be] restricted to healthy, active, independent seniors
who will be impossible to tell apart from many of their neigh-
bors throughout Carefree as they drive, walk, bike, shop,
attend, participate, volunteer, teach, learn and enjoy life . . . .”
(Emphasis added.) The letter further stated that the skilled
nursing component “will be held in reserve for temporary
acute needs.” (Emphasis added.) The Commission voted four
to one, with one abstention, to deny the SUP.

The Commission’s denial of the SUP was appealed to the
Town Council, which held a public hearing on the appeal on
December 2, 2003. At that meeting, the Town’s legal counsel
explained that under his reading of Arizona Revised Statute
§ 9-462.04,3 the Town Council needed a supermajority vote to
grant the SUP because at least 20% of the owners surrounding
the proposed community had filed written protests.4 Budnick
was informed of this supermajority requirement a few hours
before the meeting. The Town Council voted four to three to
deny the SUP.
3
Arizona Revised Statute § 9-462.04(H) provides, in relevant part:
If the owners of twenty per cent or more either of the area of the
lots included in a proposed change, or of those immediately adja-
cent in the rear or any side thereof extending one hundred fifty
feet therefrom, or of those directly opposite thereto extending one
hundred fifty feet from the street frontage of the opposite lots, file
a protest in writing against a proposed amendment, it shall not
become effective except by the favorable vote of three-fourths of
all members of the governing body of the municipality.
4
Carefree’s attorney explained that section 9-462.04(H) did not put time
constraints on or set forth procedures for the filing of written protests, but
explained that there was some uncertainty as to whether the 20% require-
ment had been met because Carefree’s zoning ordinance required written
protests to be submitted within seven days of a Planing & Zoning meeting.
He concluded, however, on the basis of letters from property owners, peti-
tions filed that morning, and “speaker slips,” that more than 20% of the
property owners opposed the RAC.
 BUDNICK v. TOWN OF CAREFREE 2311
On December 30, 2003, an attorney sent a letter on behalf
of those developing the RAC and, for the first time, asserted
that the RAC would serve “disabled residents” in the skilled-
nursing and assisted-living units. The letter stated that the
laundry, kitchen, healthcare, and restaurant facilities were
necessary to provide services to those disabled residents and
requested reasonable accommodation under 42 U.S.C.
§ 3604(f)(3)(B).

Carefree and Budnick met in January 2004, and Carefree
offered a variety of options to Budnick so that the RAC might
still be built, including: (1) helping Budnick to locate the proj-
ect on a piece of land to be sold by the State Land Department
that would be appropriately zoned; (2) reconsidering the
application if commercial features were moved across the
street to commercially zoned property; and (3) reconsidering
the application if commercial features were scaled back to a
size that would accommodate only the RAC’s disabled resi-
dents. Budnick did not accept any of these alternatives and
subsequently filed this lawsuit.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to hear this appeal under 28 U.S.C.
§ 1291. We review a district court’s grant of summary judg-
ment de novo. Hardage v. CBS Broad., Inc., 427 F.3d 1177,
1183 (9th Cir. 2005).

III. DISCUSSION

[1] The FHAA forbids discrimination in the sale or rental
of housing, which includes making unavailable or denying a
dwelling to a buyer or renter “because of a handicap of . . .
a person residing in or intending to reside in that dwelling
after it is sold, rented, or made available.” 42 U.S.C.
§ 3604(f)(1)(B).5 Title VII discrimination analysis is used to
5
The FHAA extended the Fair Housing Act’s protection against dis-
crimination in the sale or rental of housing to those with disabilities. Fair
2312 BUDNICK v. TOWN OF CAREFREE
examine claims under the FHAA; thus, a plaintiff may estab-
lish discrimination in violation of the FHAA under a theory
of disparate treatment or disparate impact. Gamble v. City of
Escondido, 104 F.3d 300, 304-05 (9th Cir. 1997) (citing Pfaff
v. U.S. Dep’t of Hous. & Urban Dev., 88 F.3d 739, 745 & n.1
(9th Cir. 1996) & Ring v. First Interstate Mortgage, Inc., 984
F.2d 924, 926 & n.2 (8th Cir. 1993)). Under § 3604(f)(3)(B)
of Title 42, a plaintiff may also sue on the theory that a local
municipality failed to make reasonable accommodations for
housing for the disabled. Id. at 305. Budnick asserted its dis-
crimination claim under all three of these theories. We con-
sider each theory in turn.

A. Disparate Treatment

[2] When disparate treatment is claimed as a result of the
denial of a special use permit, the plaintiff must establish that:
(1) the “plaintiff is a member of a protected class”; (2) the
plaintiff “applied for a [special] use permit and was qualified
to receive it;” (3) the permit was denied despite plaintiff’s
qualification; and (4) “defendant approved a [special] use per-
mit for a similarly situated party during a period relatively
near the time” it denied plaintiff’s request. See id. at 305 (set-
ting forth the elements of a prima facie case for disparate
treatment claim based on a denial of a conditional use permit).
The burden then shifts to the defendant to articulate “a legiti-
mate, nondiscriminatory reason for its action.” Id. at 305; see
also Sanghvi v. City of Claremont, 328 F.3d 532, 536 n.3 (9th
Cir. 2003) (noting that McDonnell Douglas framework devel-
oped in the Title VII context extends to FHA and ADA
claims). The plaintiff must then prove by a preponderance of

Housing Amendments Act of 1988, Pub. L. No. 100-430, § 6(a), 102 Stat.
1619 (1988). Though the FHA and the FHAA use the term “handicap,” 42
U.S.C. § 3604, we use the preferred term, “disabled,” except when refer-
ring to the statutory language. See Giebeler v. M & B Assocs., 343 F.3d
1143, 1146 n.2 (9th Cir. 2003). We assign identical meanings to these
terms.
 BUDNICK v. TOWN OF CAREFREE 2313
the evidence that the defendant’s asserted reason is a pretext
for discrimination. Gamble, 104 F.3d at 305.

In lieu of satisfying the elements of a prima facie case, a
plaintiff may also “simply produce direct or circumstantial
evidence demonstrating that a discriminatory reason more
likely than not motivated” the challenged decision. McGinest
v. GTE Serv. Corp., 360 F.3d 1103, 1122-23 (9th Cir. 2004)
(“[I]t is not particularly significant whether [a plaintiff] relies
on the McDonnell Douglas presumption or, whether he relies
on direct or circumstantial evidence of discriminatory intent
to meet his [initial] burden”); see also Metoyer v. Chassman,
504 F.3d 919, 931 (9th Cir. 2007) (stating that a plaintiff
suing under 42 U.S.C. § 1981, like a plaintiff bringing a suit
for disparate treatment, may proceed under the McDonnell
Douglas framework or by producing direct or circumstantial
evidence showing that a discriminatory reason “more likely
than not” motivated the employer) (citing McGinest, 360 F.3d
at 1122); Lowe v. City of Monrovia, 775 F.2d 998, 1006 (9th
Cir. 1985), amended on other grounds by 784 F.2d 1407 (9th
Cir. 1986) (“[A] plaintiff can establish a prima facie case of
disparate treatment without satisfying the McDonnell Douglas
test.”).6 Under either method, however, the plaintiff must
counter the defendant’s explanation with some evidence sug-
gesting that the challenged action “was due in part or whole
to discriminatory intent.” McGinest, 360 F.3d at 1123.

Budnick cannot satisfy all the elements of a prima facie
case for disparate treatment and has not pointed to direct or
circumstantial evidence of discriminatory intent. Nor can
Budnick rebut the non-discriminatory reasons Carefree has
proffered to explain why it denied the SUP.
6
Sanghvi is not inapposite, as Carefree suggests. In Sanghvi, we stated
that there was no dispute as to whether a prima facie showing was
required in that particular FHA case. See 328 F.3d at 536 n.4. We did not
state that direct or circumstantial evidence demonstrating discriminatory
intent would never be sufficient.
2314 BUDNICK v. TOWN OF CAREFREE
[3] Though we agree with the district court that Budnick
can meet the second and third elements of the prima facie
case, we do not agree that Budnick has raised a genuine dis-
pute of fact with respect to the first element: whether the RAC
would house individuals with disabilities. Budnick suggests
that the RAC would naturally house disabled individuals
because the senior citizen residents of the RAC would have
entered into life care contracts and would inevitably experi-
ence disabilities as they age. We hold that potential RAC resi-
dents do not presently qualify as disabled under the FHAA
simply because some of them will become disabled as they
age. To hold that they can currently be considered disabled
under the FHAA would mean, in effect, that every senior citi-
zen (indeed, every person) desiring to rent or buy housing
could assert a present claim of discrimination based on inevi-
table disability due solely to the passage of time. Such a hold-
ing would also disregard the reality that even if many
individuals become disabled as they age, many do not, and
that being old is not, per se, equivalent to being disabled.

Bragdon v. Abbott, 524 U.S. 624 (1998), does not require
a different construction of the FHAA. In Bragdon, the Court
held that a person with HIV that had not progressed to the
symptomatic phase was disabled within the meaning of the
ADA. The Bragdon court noted, however, that, at that time,
HIV followed “a predictable . . . and unalterable course.” Id.
at 637 (“In light of the immediacy with which the virus begins
to damage the infected persons’s white blood cells and the
severity of the disease, we hold it is an impairment from the
moment of infection . . . . HIV infection must be regarded as
a physiological disorder with a constant and detrimental effect
on the infected person’s hemic and lymphatic systems from
the moment of infection.”). In contrast, the consequences of
aging are entirely unpredictable, and are sometimes treatable.

Moreover, the undisputed facts confirm that Budnick
repeatedly informed Carefree that the RAC’s residents would
be healthy and active, and that Budnick did not claim, prior
 BUDNICK v. TOWN OF CAREFREE 2315
to Carefree’s denial of the SUP, that the RAC would house
disabled residents. See 42 U.S.C. § 3604(f)(1)(B) (discrimina-
tion under FHAA must be “because of a handicap of . . . a
person residing in or intending to reside in that dwelling after
it is sold, rented, or made available” (emphasis added)); id.
§ 3602(h)(1)-(3) (defining “handicap” as “a physical or men-
tal impairment which substantially limits one or more of such
person’s major life activities; a record of having such an
impairment; or being regarded as having such an impair-
ment”); cf. Gamble, 104 F.3d at 303-04 (noting that the struc-
ture at issue was to house fifteen “physically disabled
elderly”); Collings v. Longview Fibre Co., 63 F.3d 828, 834
(9th Cir. 1995) (noting, in an ADA case, that there was no
showing the employer had any knowledge of the employee’s
alleged disability and that the employee was fired because of
it).

Budnick’s SUP application stated that the RAC would “pri-
marily serv[e] the active and independent discerning senior
populace,” that the potential residents would be “evaluated”
before acceptance, and that only individuals capable of inde-
pendent living upon entry would be accepted as residents. In
a letter dated November 26, 2003, Budnick made emphatic
representations about the residents that would live at the
RAC; Budnick wrote that “entry [would be] restricted to
healthy, active, independent seniors who will be impossible to
tell apart from many of their neighbors throughout Carefree
as they drive, walk, bike, shop, attend, participate, volunteer,
teach, learn and enjoy life . . . .” (Emphasis added.) It is not
significant that Carefree was aware that healthcare service
would be available to all RAC residents after entry; the mere
availability of healthcare in no way suggests that the RAC’s
residents would be disabled within the meaning of the FHAA.

The fact that the RAC was to provide assisted-living and
skilled-nursing units does not alter our analysis. Not only did
Budnick represent in its SUP application that only individuals
capable of independent living would be accepted, but Budnick
2316 BUDNICK v. TOWN OF CAREFREE
also stated in its November letter, just before the December
Town Council meeting, that the skilled-nursing component
“will be held in reserve for temporary acute needs.” Budnick
did not assert that the assisted-living and skilled-nursing units
would house the disabled until its December 30, 2003 letter,
which Budnick sent after the Town Council had already
denied the SUP.

[4] Budnick also cannot satisfy the fourth element of the
prima facie case. In Gamble, the plaintiff-landowners sued the
defendant-city after the city denied a building permit to con-
struct a complex that would house some physically disabled
elderly adults. Gamble, 104 F.3d at 303. We noted that the
landowners could not meet the fourth element because the
record did not inform the court of the dates on which permits
for other large structures (e.g., an apartment complex, a
mobile home park, a multi-story church) in the vicinity were
granted or “whether other factors, such as the composition of
the city council or the related zoning ordinances, had changed
since the prior permits were granted.” Id. at 305. Similarly,
here, Budnick has not set forth evidence to create a triable
issue of fact as to whether Carefree has approved a SUP “for
a similarly situated party during a period relatively near the
time” it denied Budnick a SUP. Id.

Budnick asserts that “there were many other ‘commercial’
structures and uses in those neighborhoods,” but admits that
it has not provided “the dates on which the 14 nonresidential
structures and uses had wound up in Carefree’s residential
districts.” Moreover, Budnick does not contest the district
court’s factual determinations that the parties to those nonresi-
dential structures were not similarly situated because two of
the properties were to be located on properties zoned differ-
ently from those at issue here, a number of the structures were
put in place before Carefree was founded, and the three
churches identified were contemplated in Carefree’s general
plan.
 BUDNICK v. TOWN OF CAREFREE 2317
Carefree has set forth at least two reasons for denying the
SUP: (1) to achieve its zoning goals, and (2) to preserve the
character of the neighborhood. Both of these reasons were
reflected in the comments of the zoning commissioners and
Town Council members when they explained their votes
against the SUP, and both of these reasons are legitimate and
nondiscriminatory. In Gamble, we held that concern for the
residential character of the neighborhood is a legitimate and
nondiscriminatory goal. 104 F.3d at 306. Though Budnick
made an effort to ensure that the RAC would aesthetically
blend in with its surrounding neighborhood, Budnick never-
theless required a SUP because certain aspects of the RAC did
not meet all of the requirements of the residential zones on
which it would have been located. And, a city’s interest in
achieving its zoning goals has long been recognized as a legit-
imate governmental interest. See id. at 307 (citing Vill. of
Euclid v. Ambler Realty Co., 272 U.S. 365, 386-88 (1926))
(“Zoning concerns are recognized as legitimate governmental
goals.”); see generally Penn. Cent. Transp. Co. v. City of New
York, 438 U.S. 104, 129 (1978) (“[T]his Court has recog-
nized, in a number of settings, that States and cities may enact
land-use restrictions or controls to enhance the quality of life
by preserving the character and desirable aesthetic features of
a city.”) (collecting cases).

Budnick points to numerous pieces of evidence that, in its
view, raise a triable issue of fact as to whether Carefree’s rea-
sons for denying the SUP were a pretext for discrimination
against the disabled or are sufficient, in lieu of establishing a
prima facie case, to demonstrate that a discriminatory reason
more likely than not motivated Carefree’s decision to deny
Budnick a SUP. Even viewing the evidence in the light most
favorable to Budnick, it does not support the conclusion that
discrimination played a role in Carefree’s decision.

Budnick suggests that “Carefree repeatedly rejected hous-
ing tailored for seniors with disabilities in residential neigh-
borhoods,” but Budnick admits that in both of the two cited
2318 BUDNICK v. TOWN OF CAREFREE
instances, Carefree steered the projects into areas that were
not zoned residential. Thus, this evidence demonstrates only
that Carefree has consistently been concerned with maintain-
ing the residential character of its neighborhood by adhering
to its zoning ordinances.

Budnick again points to the presence of other commercial
uses in Carefree’s residential areas as evidence supporting
discrimination. This evidence is not persuasive, however,
because, as explained above, these other uses were distin-
guishable from those contemplated in the RAC.

[5] Budnick suggests that discrimination can be inferred
from the fact that Carefree’s “General Plan” stated that Care-
free was designed to cater to a retirement lifestyle. Nothing in
the record suggests that the Planning and Zoning Commission
or Town Council did not generally support RAC’s location in
Carefree; in fact, multiple commissioners and Town Council
members stated that they thought the RAC was a good idea
if located somewhere else in Carefree. Indeed, Carefree
offered to assist Budnick in locating the RAC elsewhere in
Carefree. Budnick suggests that the “frivolous” nature of the
accommodations itself suggests a discriminatory intent. Given
that Carefree offered three different options to Budnick on
how the RAC might still be able to locate in Carefree, includ-
ing reconsidering the application if commercial features were
scaled back to a size that would accommodate only the RAC’s
disabled residents, we cannot infer a discriminatory intent.

There is also nothing suspect about the fact that Carefree
characterized the RAC as “commercial.” While the RAC was
residential in some respects, when viewed as a whole, it was
clearly a for-profit endeavor with commercial elements.

The comments of neighbors also do not show any discrimi-
natory motive on Carefree’s part. Budnick claims that neigh-
bors’ comments at zoning hearings, for example, that they
were concerned about the presence of ambulances, or that
 BUDNICK v. TOWN OF CAREFREE 2319
Carefree would be a place people came to die, evidence dis-
criminatory intent. Carefree’s zoning ordinance required the
holding of a public hearing to determine whether granting the
SUP would “serve the public health, safety, and welfare” and
to allow the neighbors to comment on the RAC. Indeed, per-
mitting town councils, planning commissions, and the like to
hear the views of concerned citizens and other interested par-
ties about proposed projects is the essence of all zoning hear-
ings. There is no evidence in the record to suggest that the
cited comments or similar ones, which were a small part of
the total comments, motivated the commissioners or Town
Council members to vote against the SUP, and we decline to
make such an inference based solely on the fact that the com-
ments were made. See MetroPCS, Inc. v. City and County of
San Francisco, 400 F.3d 715, 736-37 (9th Cir. 2005) (declin-
ing to conclude that city board’s decision to deny a condi-
tional use permit was influenced by certain public comments
just because board stated that it “reviewed and considered” all
public comments, “which is exactly what a local zoning board
is supposed to do at a public hearing”).

Likewise, Carefree’s adoption of a supermajority voting
rule shortly before the meeting does not suggest any discrimi-
natory motive. Regardless of whether the technical applica-
tion of the cited Arizona statute was correct, Carefree’s legal
counsel offered a reasonable explanation for why he decided
to implement what he viewed as the statutory requirement and
gave Budnick notice that the supermajority required would be
in effect. There is no evidence to suggest that Carefree
applied the supermajority requirement for any reason other
than to attempt to comply with section 9-462.04(H) of Ari-
zona law.

Finally, we cannot infer a discriminatory intent from the
fact that Carefree amended its zoning ordinance a few months
after denying Budnick the SUP so that Continuing-Care
Retirement Communities (CCRCs) such as the RAC would
also need a SUP to locate in commercially-zoned areas. We
2320 BUDNICK v. TOWN OF CAREFREE
decline to read into this requirement an intent to discriminate
against the disabled, particularly in light of our conclusion
that being old is not the equivalent of having a disability.

B. Disparate Impact

[6] “To establish a prima facie case of disparate impact
under the FHA, ‘a plaintiff must show at least that the defen-
dant’s action had a discriminatory effect.’ ” Pfaff, 88 F.3d at
745 (quoting Keith v. Volpe, 858 F.2d 467, 482 (9th Cir.
1988)). In Pfaff, this court borrowed from Age Discrimination
in Employment Act cases and stated that a FHA plaintiff must
establish “ ‘(1) the occurrence of certain outwardly neutral . . .
practices, and (2) a significantly adverse or disproportionate
impact on persons of a particular [type] produced by the
[defendant’s] facially neutral acts or practices.’ ” Id. at 746
(quoting Palmer v. United States, 794 F.2d 534, 538 (9th Cir.
1986)) (alterations in original). A plaintiff need not establish
discriminatory intent but the discriminatory impact must be
proven; an inference of discriminatory impact is not suffi-
cient. Id. Statistical analysis is admissible to establish dispa-
rate impact. Id.; see Palmer, 794 F.2d at 539 (finding
statistical evidence submitted by Palmer insufficient to estab-
lish that facially neutral Forest Service policies had a discrim-
inatory impact on older employees). A defendant may rebut
a plaintiff’s proof of disparate impact by “supply[ing] a
legally sufficient, nondiscriminatory reason.” Affordable
Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1194 (9th
Cir. 2006) (quoting Pfaff, 88 F.3d at 746-47).

[7] Budnick has set forth no evidence, statistical or other-
wise, from which we can conclude that Carefree’s permit
practices have a disproportionate impact on the disabled or
that there is a triable issue of fact as to the impact of Care-
free’s permit practices on the disabled. We have previously
recognized the necessity of statistical evidence in disparate
impact cases. See, e.g., Pottenger v. Potlatch Corp., 329 F.3d
740, 749 (9th Cir. 2003) (“Summary judgment is appropriate
 BUDNICK v. TOWN OF CAREFREE 2321
when statistics do not support a disparate impact analysis.”)
(citation omitted). Though Budnick submitted national statis-
tics to prove that the size of the proposal was necessary for
the RAC to be financially viable, these statistics are not rele-
vant to whether Carefree’s permitting practices have a dispa-
rate impact on the disabled as compared to any other group
of people. See Mountain Side Mobile Estates P’ship v. Sec. of
Housing and Urban Dev., 56 F.3d 1243, 1253 (10th Cir.
1995) (“In this case, the appropriate comparables must focus
on the local housing market and local family statistics. The
farther removed from local statistics the plaintiffs venture, the
weaker their evidence becomes.”)

In Gamble, we held that the plaintiff had not established a
prima facie case of disparate impact under the FHA because
he “presented no statistics or other proof demonstrating that
the City’s permit practices have a significantly adverse or dis-
proportionate impact on the physically disabled or elderly.”
104 F.3d at 306. Budnick attempts to distinguish Gamble by
arguing that the housing Budnick sought to provide was com-
pletely absent in Carefree. This distinction is not persuasive.
In Gamble, we held that the absence of a certain type of facil-
ity alone is not actionable; in other words, proof of a void in
the community is insufficient proof of disparate impact. Id. at
306.

C. Reasonable Accommodation

[8] A municipality commits discrimination under the
FHAA if it refuses “to make reasonable accommodations in
rules, policies, practices, or services, when such accommoda-
tions may be necessary to afford [the physically disabled]
equal opportunity to use and enjoy a dwelling.” Gamble, 104
F.3d at 307 (alteration in original); see 42 U.S.C.
§ 3604(f)(3)(B). To establish a claim of discrimination on a
theory of failure to reasonably accommodate, “a plaintiff must
demonstrate that (1) he suffers from a handicap as defined by
the FHAA; (2) defendants knew or reasonably should have
2322 BUDNICK v. TOWN OF CAREFREE
known of the plaintiff’s handicap; (3) accommodation of the
handicap ‘may be necessary’ to afford plaintiff an equal
opportunity to use and enjoy the dwelling; and (4) defendants
refused to make such accommodation.” Giebeler v. M & B
Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003) (quoting United
States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374,
1380 (9th Cir. 1997)).

[9] For the reasons we have already discussed above, see
Section III.A. supra, the undisputed facts do not support that
the plaintiff (here, the potential RAC residents) suffer “from
a handicap as defined by the FHAA.” The undisputed facts
also do not support that Carefree should have known that the
RAC would house disabled individuals, particularly in light of
the many representations that Budnick made to Carefree about
the RAC residents, including that “entry [would be] restricted
to healthy, active, independent seniors.” (Emphasis added.)

Assuming, arguendo, that the SUP application was itself
sufficient to request a reasonable accommodation, even
though it did not explicitly do so, we nevertheless conclude
that Budnick also cannot meet the third prima facie element.
Budnick has not set forth sufficient evidence to establish that
the RAC’s amenities were necessary to house disabled
seniors; in other words, that “but for the accommodation, [the
disabled] will likely be denied an equal opportunity to enjoy
the housing of their choice.” Cal. Mobile Home Park Mgmt.,
107 F.3d at 1380 (quoting Smith & Lee Assocs. v. City of Tay-
lor, 102 F.3d 781, 795 (6th Cir. 1996)). To the extent Budnick
suggests that the amenities requiring accommodation are
“necessary to house the physically disabled,” this suggestion
is primarily based on Budnick’s view that all of the RAC’s
residents may one day be disabled and, therefore, the ameni-
ties must have the capacity to serve all of the RAC’s potential
residents. Not only have we rejected this initial premise, but
Budnick has also only summarily concluded that the RAC’s
amenities are necessary for the disabled and has not delin-
eated for the court why each of the RAC’s amenities are nec-
 BUDNICK v. TOWN OF CAREFREE 2323
essary in the first place. As a result, we need not discuss the
reasonableness of the accommodations Carefree offered to
Budnick after it denied Budnick’s application for the SUP.

IV. CONCLUSION

For these reasons, we AFFIRM the district court’s grant of
summary judgment.