## Facts

- A property developer and his corporation sought site plan approval and a special use permit (SUP) from a town in Arizona to build a large, age-restricted senior residential project.
- The proposed development would include services and facilities (including assisted-living and skilled-nursing components) and building features that did not comply with existing zoning limits on use, height, density, and unit configuration.
- The proposal was initially presented as serving “active” and “independent” seniors; only later did the developer assert the project would serve disabled residents in certain units.
- The SUP process was discretionary and involved public hearings; residents and officials raised concerns about density, traffic, height, scale, and compatibility with the town’s planning objectives.
- The town denied the SUP, citing zoning and comprehensive-plan incompatibility and the project’s size and intensity.
- The developer sued under multiple theories, including the Fair Housing Amendments Act (FHAA); the district court granted summary judgment for the town and individual officials.
- On appeal, the developer pursued only the FHAA claim, so appellate review was limited to that claim.

## Issues

1. Whether denial of the SUP constituted intentional disability discrimination under the FHAA.
2. Whether the denial had an unlawful disparate impact on disabled persons under the FHAA.
3. Whether the town unlawfully refused a reasonable accommodation under the FHAA by denying the SUP.

## Decision

- The Ninth Circuit affirmed summary judgment for the defendants.
- The court held the developer failed to raise a triable issue that the SUP denial was “because of” disability.
- The record supported legitimate, nondiscriminatory land-use reasons for the denial, and the developer did not show pretext.
- The developer did not establish a disparate impact caused by a neutral policy or practice, supported by concrete evidence.
- The developer did not show that granting the requested zoning relief was necessary to afford disabled persons an equal housing opportunity, as required for a reasonable-accommodation claim.

## Legal Principles

- A plaintiff challenging a zoning or permitting decision under the FHAA must show a sufficient causal connection between the challenged action and discrimination based on disability.
- Intentional discrimination claims fail where the decisionmaker’s stated land-use reasons are legitimate and unrebutted by evidence of pretext tying the outcome to disability-based motive.
- Disparate impact liability requires identification of a neutral policy or practice and evidence that it causes a significant disproportionate adverse effect on disabled persons; a single permit denial, without more, is generally insufficient.
- A reasonable-accommodation claim requires a showing that the requested accommodation may be necessary to provide disabled persons an equal opportunity to use and enjoy housing; requests that mainly advance a preferred development plan do not meet the necessity requirement.

## Conclusion

The court upheld the town’s denial of a discretionary special use permit because the developer did not produce evidence that the decision was driven by disability discrimination, caused a proven disparate impact on disabled persons, or amounted to a refusal of an accommodation necessary to ensure equal housing opportunity under the FHAA.


Budnick v. Town of Carefree, 518 F.3d 1109 (9th Cir. 2008)