Case Information
*2 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- *3 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 violatеd 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, Bryаnt 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 *4 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- *5 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 thаt "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 pаrticular 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 *6 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 propеrty 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 corporatiоn, Bryant Woods Inn, Inc., alleging that Howard County intentionally discriminated against Bryant Woods Inn and failed to *7 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 fоund, 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 bеcause 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.,
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
*8
also Gladstone, Realtors v. Village of Bellwood;
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,
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 аpproval 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 *10 ("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).
Bryаnt 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,
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 "reаsonable 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,
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 fundamentаlly alter the
nature of the apartment complex. See Bronk v. Ineichen,
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 oppоrtunity than nonhandicapped persons. Davis, 442 *13 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,
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 sеeks 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
*14
minimum size may be essential to the success" of group homes,
Brandt v. Village of Chebanse,
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.
*15
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,
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 аllow 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-
*16
tral. The district court, relying on Hughes v. Rowe,
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 wаs frivolous, unreasonable, or without
foundation, even though not brought in subjective bad
faith." Christianburg,
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,
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED