## Facts

- Elderhaven, Inc. bought a house in Lubbock, Texas, located in an R-1 single-family residential zone, intending to operate a shared residence for elderly adults with mental or physical disabilities.
- The preexisting zoning definition of “family” allowed (i) any number of related persons or (ii) up to two unrelated persons living and cooking together, which did not permit Elderhaven’s proposed multi-resident group home as of right.
- After a variance request was denied, the City enacted Ordinance 9489 to address housing for disabled persons in R-1 zones.
- Ordinance 9489 permitted: (i) any number of related persons (disabled or not); (ii) one or two unrelated persons (disabled or not); (iii) three or four unrelated disabled persons with an administrative permit; and (iv) five or more unrelated disabled persons through a special exception granted by the Zoning Board of Adjustment.
- Elderhaven applied for a special exception to house 20 disabled residents; the City granted a special exception for 18 residents.
- Elderhaven provided no evidence that operating at 18 residents (rather than 20) was economically infeasible or otherwise necessary to provide disabled residents equal housing opportunity.
- Elderhaven sued under the Fair Housing Act (FHA), alleging discrimination based on handicap and failure to provide a reasonable accommodation; the district court granted summary judgment to the City.

## Issues

1. Whether Ordinance 9489 and the City’s approval of 18 residents (instead of 20) failed to provide a reasonable accommodation “necessary” to afford handicapped persons equal opportunity under 42 U.S.C. § 3604(f)(3)(B).
2. Whether Ordinance 9489 constituted unlawful disparate treatment or facial discrimination against handicapped persons in single-family zones.
3. Whether the ordinance had an unjustified disparate impact on handicapped persons.

## Decision

- The Fifth Circuit affirmed summary judgment for the City and related municipal defendants.
- The court held that the City’s zoning modifications and approval process for disabled group residences amounted to a reasonable accommodation under the FHA.
- The court held Elderhaven failed to show that permitting 20 residents rather than 18 was necessary to afford disabled residents equal opportunity to use and enjoy housing.
- The court rejected claims of disparate treatment/facial discrimination because the ordinance increased, rather than reduced, opportunities for disabled group living in R-1 districts.
- The court found no evidentiary basis for disparate impact, particularly given the ordinance’s expansion of permissible housing options for disabled residents.

## Legal Principles

- FHA “discrimination” includes a refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford handicapped persons equal opportunity to use and enjoy a dwelling. 42 U.S.C. § 3604(f)(3)(B).
- A plaintiff seeking a reasonable accommodation must produce evidence that the requested change is necessary to achieve equal housing opportunity; a preference for a more profitable or desirable arrangement is insufficient.
- A zoning scheme that creates an approval pathway for disabled group homes in single-family zones, and affords them greater flexibility than comparable non-disabled uses, may support a finding of reasonable accommodation and undercut facial discrimination and disparate impact theories at summary judgment.

## Conclusion

The Fifth Circuit upheld Lubbock’s ordinance and its application because the City had affirmatively adjusted single-family zoning rules to permit disabled group residences, and Elderhaven failed to prove that an additional two residents was a necessary accommodation required by the FHA.


Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175 (5th Cir. 1996)