Austin v. Town of Farmington, No. 15-2238 (2d Cir. 2016)
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Plaintiffs filed suit against the Town alleging claims under the Fair Housing Act (FHA), Title VIII of the Civil Rights Act of 1968, as amended 42 U.S.C. 3601 et seq. Plaintiff obtained limited variances from a land-use regulation prohibiting accessory structures on the lot of their newly purchased home, allowing plaintiffs to install a fence, pool, and deck designed to accommodate their son's disability. The Town Board’s resolutions allowing the variances required removal of the structures when, inter alia, the disabled child’s residency in the house terminated (Restoration Provision). The district court dismissed the complaint under FRCP 12(b)(6). The district court determined that it did not need to reach the issue of whether the Restoration Provisions were reasonable under the FHA because plaintiffs’ complaint did not allege facts sufficient to show either an intent to discriminate or to constitute disparate impact discrimination. The court concluded, however, that the reasonableness of the Town’s accommodations is in issue. The reasonableness issue here cannot be determined on the pleadings because the relevant factors are numerous and balancing them requires a full evidentiary record. Therefore, the court vacated the district court's dismissal as to this issue. The court affirmed as to the dismissal of plaintiffs' retaliation claim where the Restoration Provisions on their face simply restore the requirements applicable to all such properties in the area once the needs of plaintiff's disabled child are not an issue.
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15-2238-cv Austin v. Town of Farmington 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2015 (Argued: January 22, 2016 - - - - - - Decided: June 21, 2016) Docket No. 15-2238-cv - - - - - - - - - - - - - - - - - - - - - - - - - - COLLEEN & JOHN AUSTIN, Plaintiffs-Appellants, v. TOWN OF FARMINGTON, Defendant-Appellee. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, RAGGI, and DRONEY, Circuit Judges. Appeal from a grant by the United States District Court for 25 the Western District of New York (Michael A. Telesca, Judge) of a 26 Rule 12(b)(6) motion dismissing appellants’ complaint asserting 27 Fair Housing Act claims. 28 Town’s resolutions granting variances allowing appellants to 29 build auxiliary structures, e.g. an above-ground pool, fence, and 30 deck, violated the Act by requiring removal when their disabled 31 child left the property. 32 33 34 35 36 37 The principal issue is whether the We affirm in part and vacate in part. LAURIE MARIE LAMBRIX, Legal Assistance of Western New York, Inc., Rochester, NY, for Plaintiffs-Appellants. 1 1 2 3 4 5 6 7 ROBERT BRENNA JR.(Sheldon W. Boyce, Jr. and Donald G. Rehkopf, Jr., on the brief), Brenna Boyce, PLLC, Rochester, NY, for DefendantAppellee. WINTER, Circuit Judge: 8 Colleen and John Austin appeal from Judge Telesca’s 9 dismissal of their complaint pursuant to Fed. R. Civ. P. 10 12(b)(6). 11 Act (“FHA”), Title VIII of the Civil Rights Act of 1968, as 12 amended, 42 U.S.C. § 3601 et seq., against the Town of 13 Farmington. 14 limited variances from a land–use regulation prohibiting 15 accessory structures on the lot of their newly purchased home.1 16 The variances allowed appellants to install a fence, pool, and 17 deck designed to accommodate the needs of appellants’ disabled 18 son.2 19 required removal of the structures when, inter alia, the disabled 20 child’s residency in the house terminated. 21 these limitations as the “Restoration Provisions.” The complaint asserted claims under the Fair Housing The complaint alleged that appellants obtained The Town Board’s resolutions allowing the variances We shall refer to The 1 Typical zoning variances always “run with the land” and continue until properly revoked. 2 Anderson, New York Zoning Law and Practice § 23.53 [3d ed]. However, while we use the term “variance” in this opinion to refer to the Town’s resolutions, they were obviously not intended to run with the land. See J. App’x at 49 (stating that variance was “a temporary accommodation” of child’s special needs). 2 The FHA uses the term “handicap” rather than “disability.” See 42 U.S.C. § 3604(f)(3). The FHA definition of “handicap,” though, is virtually identical to the definition of “disability” in the Americans with Disabilities Act of 1990 (“ADA”), Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. § 12101 et seq. (2008)), and disability scholars tend to prefer the term “disability.” We will therefore treat the two terms interchangeably and use the term “disability” throughout this opinion. See Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 38 n.8 (2d Cir. 2015) (using terms interchangeably for similar reasons). 2 1 reasonableness under the Act of the requirement that the land-use 2 restrictions be restored after the child’s residency ended is at 3 the heart of the present dispute. 4 Restoration Provisions constituted illegal retaliation for their 5 asserting FHA claims. 6 Appellants also claim that the See 42 U.S.C. § 3617. The district court determined that it did not need to reach 7 the issue of whether the Restoration Provisions were reasonable 8 under the FHA because appellants’ complaint did not allege facts 9 sufficient to show either an intent to discriminate or to 10 constitute disparate impact discrimination. 11 that the reasonableness of the Town’s accommodations is in issue, 12 but a valid claim for retaliation has not been alleged, we affirm 13 in part and vacate in part. Because we conclude 14 BACKGROUND 15 In reviewing a district court’s Fed. R. Civ. P. 12(b)(6) 16 dismissal of a complaint, we of course accept all factual 17 allegations as true, and draw all reasonable inferences in the 18 plaintiff’s favor. 19 147, 152 (2d Cir. 2002).3 See Chambers v. Time Warner, Inc., 282 F.3d 3 Appellants moved for summary judgment in their favor in the district court and accompanied that motion with a variety of documents, including records of various Town agencies and offices. These records are integral to the complaint, San Leandro Emergency Med. Grp. Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808-09 (2d Cir. 1996), and we refer to them where needed in our discussion of the facts. We also rely on appellants’ summary judgment papers to the extent they clarify the allegations of the complaint with regard to costs of installation and removal of the structures, facts that do not affect our disposition of this appeal. 3 1 The complaint alleges that, in 2009, Colleen and John Austin 2 decided to move from North Carolina to up-state New York, with 3 their two sons. 4 disabilities as a result of being born prematurely, including 5 cerebral palsy and global developmental delays. 6 and visually impaired. 7 Their older son, Cole, has multiple serious He is non-verbal Appellants sought to move to an area with good public 8 schools and chose the Town of Farmington. 9 interested in a newly-constructed home in the Town’s Auburn Appellants became 10 Meadows development. 11 order to keep their son safely within their yard and to build an 12 above-ground pool because of the benefits aquatic therapy affords 13 to children with cerebral palsy. 14 Appellants wanted to install a fence in Before purchasing the home, appellants learned that there 15 was a Town ordinance restricting “patio lots,” like that of the 16 house in question, in the subdivision. 17 question was passed as part of the rezoning and authorization 18 necessary to the Auburn Meadows development. 19 contained numerous provisions relating to open space, trails, 20 etc. 21 structures, such as pools and fences, “within the patio home 22 portion of the site” but allowed such structures on other 23 (larger) lots “within the rear yard portion of the site provided The restriction in The authorization The provision at issue here prohibited accessory 4 1 that such rear yards are screened from adjacent public rights-of- 2 ways.” 3 Appellants’ lot was subject to the full prohibition. Upon learning of the land-use restriction on the property, 4 Colleen Austin called the Farmington Town building department to 5 seek a variance. 6 appellants would have to request such a variance from the Town 7 Board. 8 able to secure the necessary permission. 9 The Code Enforcement Officer told her that Appellants bought the home confident that they would be In June 2012, after negotiations with appellants, the Town 10 Board passed a Resolution entitled “Granting a Temporary 11 Accommodation to install a Fence and an Above-Ground Swimming 12 Pool to the Owners of 1685 Lillybrook Court . . . in the Auburn 13 Meadows Subdivision . . . .”4 14 stated that the fence and swimming pool must “be wholly removed” 15 from the property “within 21 days” of the disabled child ceasing 16 to live on the property, of appellants ceasing to own the 17 property “whether by conveyance, death or any other reason,” or 18 of anyone being added as an additional owner of the property. 19 The Resolution further stated that the fence and pool were to be 20 removed “at the expense of the Austin’s [sic] or of the new However, the Resolution also 4 The Town Board, established under New York Town Law § 60, has the authority to adopt, amend, and repeal zoning regulations. See N.Y. Mun. Home Rule Law § 10(1)(ii)(a); N.Y. Stat. Local Gov’ts § 10(6); Town of Farmington, N.Y. Zoning Code ch. 165 (1980). 5 1 owners of [the property].”5 2 appellants had the right to bring a legal challenge to the 3 Restoration Provisions. 4 The Resolution stated that During the summer of 2012, appellants installed the fence 5 and pool. 6 second variance, they added a deck to the pool. 7 Resolution contained the same Restoration Provision. 8 cost for installing the fence, pool, and deck, as well as 9 accompanying landscaping work, was over $27,000. After the Town granted appellants’ request for a The second The total Appellants have 10 been quoted a price of $6,630 to remove the fence, pool, and deck 11 and repair the damage to the yard. 12 On June 11, 2014, appellants filed the present action 13 challenging the Restoration Provisions and seeking declaratory 14 and injunctive relief against their enforcement. 15 alleged two claims based on the FHA: 16 Town’s denial of “a reasonable modification pursuant to 42 U.S.C. 17 Section 3604(f)(3)(A),” and (ii) retaliation by the Town “for 18 asserting their rights under federal law in violation of 42 19 U.S.C. Section 3617.” 5 Appellants (i) discrimination by the The Resolution stated that if the fence and pool were not removed during the specified time period, “the Town [would] be able to bring [an] action to enforce the removal of the fence and the above-ground swimming pool and whoever is the owner of 1685 Lillybrook Court at that time shall be liable for all of the Town’s expenses in bringing such legal action, including, but not limited to, costs and reasonable attorney’s fees.” 6 1 On June 8, 2015, the district court dismissed appellants’ 2 complaint pursuant to the Town’s Fed. R. Civ. P. 12(b)(6) motion. 3 The court concluded that there were “simply no facts alleged that 4 evince a discriminatory intent in requiring that plaintiffs 5 restore their property to its original condition once the need 6 for the modifications is no longer present.” 7 Farmington, 113 F. Supp. 3d 650, 655 (W.D.N.Y. 2015). Further, 8 the court held that “[p]laintiffs fail[ed] to support, beyond 9 their conclusory assertions, that requiring them to bear the cost 10 of removal of the fence and pool is in some way based upon their 11 son’s disability when the initial grant of a variance to build 12 the pool along with a fence was granted knowing that plaintiffs’ 13 son was disabled.” 14 have not sufficiently alleged a violation of the FHA under the 15 disparate-impact analysis . . . . 16 showing that the restoration requirement does not apply to non- 17 disabled individuals.” 18 Austin v. Town of Finally, the court stated that “plaintiffs Here, there has been no DISCUSSION 19 As noted, we review de novo a district court’s dismissal of 20 a complaint pursuant to Rule 12(b)(6). 21 152. 22 to state a claim to relief that is plausible on its face.” 23 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). See Chambers, 282 F.3d at To survive dismissal, a complaint must plead “enough facts 7 Bell 1 In 1988, Congress amended the Fair Housing Act of 1968 to 2 extend its coverage to housing discrimination based on an 3 individual’s disability. 4 Section 3604(f)(3) provides: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 42 U.S.C. § 3604(f)(3). 30 (B) requires that the denial of modifications or accommodations 31 be the result of a discriminatory animus toward the disabled. 32 Both require only that the requested modification or 33 accommodation be reasonable and that the denial(s) result, in the 34 case of Section 3604(f)(3)(A), in diminishing the disabled 35 person’s full enjoyment of the premises or, in the case of 36 Section 3604(f)(3)(B), in so diminishing that person’s use and For purposes of this subsection, discrimination includes -(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. (B) 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; or . . . . Neither Subsection (A) nor Subsection 8 1 enjoyment of the premises as to constitute a denial of equal 2 opportunity. 3 The Town does not challenge the applicability of the FHA to 4 the ordinance prohibiting accessory structures on patio lots in 5 the Auburn Meadows development. 6 accompanying the 1998 Amendments to the FHA specifically stated 7 that the Act was intended “to prohibit the application of special 8 requirements through land-use regulations, restrictive covenants, 9 and conditional or special use permits that have the effect of 10 limiting the ability of such individuals [disabled persons] to 11 live in the residence of their choice in the community.” 12 Rep. No. 100-711, at 24 (1988), reprinted in 1988 U.S.C.C.A.N. 13 2173, 2185; see, e.g., City of Edmonds v. Oxford House, Inc., 514 14 U.S. 725, 729-30 (1995) (applying FHA provisions to a city zoning 15 code). 16 Indeed, the House Report H.R. Appellants argue that the Restoration Provisions violate 17 Subsection (A). 18 landlords to require restoration of interiors as a condition to a 19 modification supports an inference that all other restoration 20 requirements are per se unreasonable under the FHA. 21 They argue that (A)’s provision allowing However, a plain reading of the statute reveals that there 22 is no per se rule against land-use regulators including 23 restoration provisions in zoning variances or other land-use 24 accommodations. Subsections (A) and (B) must be read as a whole, 9 1 Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) (”[W]hen 2 construing the plain text of a statutory enactment, we do not 3 construe each phrase literally or in isolation [but rather] 4 attempt to ascertain how a reasonable reader would understand the 5 statutory text, considered as a whole.”), and when that is done, 6 it is clear that the subsection that governs the present appeal 7 is (B). 8 install modifications to the premises, but their request for a 9 variance from the patio lot restrictions was a request, in the It is true that appellants were seeking the right to 10 language of (B), for an “accommodation[] in rules [or] policies.” 11 42 U.S.C. § 3604(f)(3)(B). 12 either directly or by negative inference, outlawing restoration 13 provisions. 14 limited to housing providers while (B), which does not mention 15 restoration, also applies to private or public entities that do 16 not own but promulgate rules or policies governing various areas 17 of land. 18 and rule makers. 19 of Farmington is clearly not a housing provider but, rather, is 20 only a land-use regulator.6 Subsection (B) contains nothing, In short, it is clear that (A)’s mandates are Of course, some entities may be both housing providers However, in the present circumstances, the Town 21 Appellants rely heavily upon a “Joint Statement of the 22 Department of Housing and Urban Development and the Department of 6 We note that the Supreme Court has held that municipalities may be considered both regulators and housing providers. Edmonds, 514 U.S. at 729-30. 10 1 Justice” regarding “Reasonable Modifications under the Fair House 2 Act.”7 3 Development and the Department of Justice, Reasonable 4 Modifications Under the Fair Housing Act (Mar. 5, 2008), 5 www.hud.gov/offices/fheo/disabilities/reasonable_modifications_ma 6 r08.pdf (“Joint Statement on Reasonable Modifications”). 7 reliance is misplaced. 8 Modifications is inapplicable because the instant appeal concerns 9 an accommodation, not a modification. Joint Statement of the Department of Housing and Urban This The Joint Statement on Reasonable Nonetheless, the 10 document’s description of the relationship between Subsections 11 (A) and (B) remains informative, and is described as follows: 12 13 14 15 16 17 18 19 20 21 22 Id. at 6 (emphasis in original). 23 Department of Housing and Urban Development and the Department of [A] reasonable modification is a structural change made to the premises whereas a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service. A person with a disability may need either a reasonable accommodation or a reasonable modification, or both, in order to have an equal opportunity to use and enjoy a dwelling . . . 7 See also Joint Statement of the We note that the Joint Statement on Reasonable Modifications is a policy statement, rather than an authoritative interpretation of Section 3604. Therefore, it does not carry the force of law and is not accorded Chevron deference. See Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (“[I]nterpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law[,] do not warrant Chevron-style deference.”); see also Barnhart v. Walton, 535 U.S. 212, 221-22 (2002). It does, however, still qualify for the lower deference accorded by the Supreme Court’s ruling in Skidmore v. Swift & Co., which gives deference to interpretive rules according to their persuasiveness, evaluated under a four factor test. 323 U.S. 134, 140 (1944) (evaluating persuasiveness of interpretive rules according to (1) the thoroughness of the agency's investigation; (2) the validity the agency’s reasoning; (3) the consistency of the agency’s interpretation over time; and (4) other persuasive powers of the agency). 11 1 Justice, Reasonable Accommodations Under the Fair Housing Act 2 (May 17, 2004), 3 www.hud.gov/offices/fheo/library/huddojstatement.pdf (“Joint 4 Statement on Reasonable Accommodations”), at 6 (defining 5 “reasonable accommodation”). 6 present matter, appellants sought an exception –- variance –- to 7 the Town’s ordinance prohibiting accessory structures on patio 8 lots in the Auburn Meadows development, which exception would 9 allow them to make physical modifications to their property –- Applying this framework to the 10 i.e., install a fence, pool, and deck. 11 729-30 (applying Section 3604(f)(3)(B) to a city zoning code). 12 See Edmonds, 514 U.S. at Viewing the Town’s Resolutions as accommodations governed by 13 Subsection (B), we now turn to appellants’ challenge to the 14 Restoration Provisions. 15 district court concluded, seemingly as a matter of law, that the 16 Town’s “refusal to remove the restoration condition [did] not 17 constitute a refusal to make a reasonable accommodation for 18 plaintiffs’ disabled son in its zoning policy.” 19 of Farmington, 113 F. Supp. at 655. 20 that appellants failed to state a claim under the FHA because 21 they alleged neither an intent to discriminate, nor facts 22 sufficient to constitute disparate-impact discrimination. 23 id. at 655-56. 24 appellants were not excluded from purchasing or using the housing In dismissing appellants’ complaint, the Austin v. Town The court also determined See Because of these failures, and the fact that 12 1 of their choice because of the restoration requirement, the court 2 granted appellees’ motion to dismiss the complaint. 3 Id. at 656. The language of Section 3604(f)(3)(A), (B) compels a 4 different conclusion. 5 discrimination, in the present context, as refusing a reasonable 6 accommodation allowing appellants to make reasonable 7 modifications to their property to afford their disabled child an 8 equal opportunity to enjoy fully the use of the property. 9 unlawful act, therefore, is the refusal to make a reasonable The subsections define unlawful The 10 accommodation without regard to the state of mind underlying the 11 refusal. 12 Appellants do not challenge the accommodation made by the 13 Town to the extent it allowed them, as they requested, to build a 14 fence, install a pool, and add a deck to the pool. 15 challenge is simply to the portion of the Town’s Resolutions 16 requiring the removal of these modifications. 17 short, does not want the variance to “run with the land” -- to be 18 taken advantage of by later occupants without a disability -- 19 while appellants want to avoid the cost of removal and to capture 20 any increase in the value of the property caused by the 21 modifications and/or by permanently freeing the lot in question 22 from the restrictions applicable to the neighborhood in question. 23 Pl.’s Br. 7. 13 Their The Town, in 1 It is certainly true, as the district court reasoned, that 2 the Restoration Provisions did not directly deprive the disabled 3 child of his rights under the FHA. 4 trier of fact might find that a restoration requirement in some 5 circumstances so burdens a party wanting to modify a property to 6 accommodate a disabled person that it amounts to a refusal of a 7 reasonable accommodation. 8 3d 234, 257 (S.D.N.Y. 2014) (asserting that “a refusal of a 9 request for a reasonable accommodation can be both actual or 10 constructive,” such as where request for accommodation is met 11 with indeterminate delay instead of outright denial (internal 12 quotation mark omitted)). 13 the authority imposing a restoration requirement believed in good 14 faith that it was fully accommodating the disabled individual. 15 The issue of whether the failure of the Town to allow the However, we believe that a See Logan v. Matveevskii, 57 F. Supp. This would violate the FHA even though 16 modifications to continue in place after the child left the 17 property was reasonable therefore can neither be avoided nor 18 decided as a matter of law on the pleadings. 19 Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 578 (2d Cir. 20 2003); see also Hollis v. Chestnut Bend Homeowners Ass’n, 760 21 F.3d 531, 541 (6th Cir. 2014) (“[T]he crux of a reasonable- 22 accommodation . . . claim typically will be the question of 23 reasonableness.”). 24 in light of appellants’ needs requires a complex balancing of See, e.g., Whether the Town’s Resolutions are reasonable 14 1 factors. 2 requiring a case-by-case determination.” 3 of Brick, 89 F.3d 1096, 1104 (3d Cir. 1996) (quoting United 4 States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 5 (9th Cir. 1994)). 6 Reasonableness analysis is “highly fact-specific, Hovsons, Inc. v. Twp. The reasonableness issue here cannot be determined on the 7 pleadings because the relevant factors are numerous and balancing 8 them requires a full evidentiary record. 9 accommodation is reasonable where the cost is modest and it does A requested 10 not pose an undue hardship or substantial burden on the rule 11 maker. 12 Cir. 2014); see also Joint Statement on Reasonable Accommodations 13 at 7 (explaining that accommodation is not reasonable “if it 14 would impose an undue financial and administrative burden on the 15 [rule maker] or it would fundamentally alter the nature of the 16 [rule maker’s] operations”). 17 regulations, relevant factors may include the purposes of the 18 restriction, the strength of the Town’s interest in the land-use 19 regulation at issue, the need for uniformity, the effect of 20 allowing later landowners without a disability to enjoy the lack 21 of a restriction on pools, decks, and fences, while all their 22 neighbors are subject to it, the likelihood that a permanent 23 variance will cause other landowners subject to the regulation to See Olson v. Stark Homes, Inc., 759 F.3d 140, 156 (2d Applied to the context of land-use 15 1 seek similar variances, etc.8 2 the cost of removal –- again, whether out of pocket or in a 3 reduced sale price.9 4 undoubtedly a host of relevant factors looking in both directions 5 to be considered. 6 statements that may seem to address other of the multitude of 7 land-use regulations, e.g. historic landmarking, etc. 8 9 Balanced against those factors is We say no more because there are Moreover, we do not want to make gratuitous However, we affirm the dismissal of appellants’ retaliation claim. “A claim has facial plausibility when the plaintiff 10 pleads factual content that allows the court to draw the 11 reasonable inference that the defendant is liable for the 12 misconduct alleged.” 13 (2009). 14 Ashcroft v. Iqbal, 556 U.S. 662, 678 Unlike a claim under Subsection 3604(f)(3), a retaliation 15 claim does require a showing of a particular state of mind, i.e., 16 a retaliatory motive. 17 v. City of Middletown, 294 F.3d 35, 53-55 (2d Cir. 2002); see 18 also Zhu v. Countrywide Realty Co., 165 F. Supp. 2d 1181, 1198 19 (D. Kan. 2001) (“[I]n order to make out a prima facie case under 20 Section 3617, [a] plaintiff must demonstrate that intentional 21 discrimination motivated defendants’ conduct, at least in 8 See Reg’l Econ. Cmty. Action Program, Inc. The requisite reasonableness analysis is, in this matter, under Subsection (B). 9 Sometimes, of course, the freedom from an otherwise generally applicable restriction may greatly enhance the value of a particular piece of property. 16 1 part.”). 2 motive is in the complaint. 3 that the lack of a proffered justification for the Restoration 4 Provisions and the existence elsewhere in the Town of lots 5 smaller than appellants’ property without a prohibition on 6 accessory structures is sufficient to allege a prima facie case 7 of retaliation. 8 their face simply restore the requirements applicable to all such 9 properties in the area once the needs of appellants’ disabled No non-conclusory allegation of fact showing such a In their brief, appellants argue We disagree. The Restoration Provisions on 10 child are not an issue. 11 in the documents accompanying appellants’ own motion for summary 12 judgment. 13 land-use regulations to various developments and lots preexisted 14 appellants’ request for a variance, and the Auburn Meadows 15 regulations apply to appellants’ neighbors as well as to them. 16 There is, therefore, no allegation supporting the existence of a 17 retaliatory motive. 18 19 Their purposes are obvious and reflected Town-wide differences in the applicability of various CONCLUSION For the foregoing reasons, the judgment granting the Town’s 20 motion to dismiss is affirmed in part and vacated in part. 21 party should bear its own costs. 22 23 24 17 Each
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