## Facts

- Colleen and John Austin owned a home in the Town of Farmington, New York, on a “patio lot” governed by an ordinance prohibiting “accessory structures,” including pools and fences.
- The Austins’ son had multiple serious disabilities, including cerebral palsy, and the Austins sought an above-ground pool for aquatic therapy and a fence for safety.
- The Austins requested zoning variances to build a pool, fence, and deck as disability-related accommodations.
- The Town granted the variances but labeled them a “temporary accommodation” and imposed a “Restoration Provision.”
- The Restoration Provision required the Austins, at their own expense, to remove the pool and fence and restore the property to ordinance compliance within 21 days after the child ceased residing at the property or upon sale of the home.
- The Austins constructed the pool and fence and later sued to challenge the Restoration Provision under the Fair Housing Act (FHA).

## Issues

1. Whether the complaint plausibly alleged that conditioning the variances on the Restoration Provision constituted a failure to make a reasonable accommodation under 42 U.S.C. § 3604(f)(3)(B).
2. Whether the complaint plausibly alleged FHA retaliation based on the Town’s inclusion of the Restoration Provision.

## Decision

- The Second Circuit affirmed in part and vacated in part the Rule 12(b)(6) dismissal.
- The court vacated dismissal of the FHA reasonable-accommodation claim and remanded, holding that reasonableness could not be resolved on the pleadings and required a developed evidentiary record.
- The court affirmed dismissal of the FHA retaliation claim, holding the Restoration Provision did not plausibly constitute retaliatory conduct.
- Certiorari was denied.

## Legal Principles

- Under the FHA, discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford” a disabled person equal opportunity to use and enjoy a dwelling. 42 U.S.C. § 3604(f)(3)(B).
- The “reasonableness” of a requested or provided accommodation is a fact-intensive, context-specific inquiry that commonly requires balancing multiple factors and is often unsuitable for resolution at the Rule 12(b)(6) stage.
- A plaintiff may state a failure-to-accommodate claim without pleading facts establishing discriminatory animus or disparate impact; the statutory failure-to-accommodate theory is itself a form of prohibited discrimination.
- A restoration condition that, on its face, returns property to generally applicable zoning requirements after the disability-related need ends does not, without more, plausibly support an inference of FHA retaliation.

## Conclusion

The Second Circuit held that the FHA reasonable-accommodation challenge to a zoning variance conditioned on removal of disability-related structures could not be dismissed at the pleading stage because reasonableness required factual development, but it upheld dismissal of the FHA retaliation claim where the condition plausibly functioned as a neutral return to baseline zoning rules once the disability-related need ended.


Austin v. Town of Farmington, 826 F.3d 622 (2d Cir. 2016), cert. denied, 137 S. Ct. 298 (2016)