Bryant Woods Inn Inc v. Howard County MD

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRYANT WOODS INN, INCORPORATED,

Plaintiff-Appellant,

v.

HOWARD COUNTY, MARYLAND;

HOWARD COUNTY PLANNING BOARD,

Defendants-Appellees.

THE AMERICAN ASSOCIATION OF

No. 96-1244

RETIRED PERSONS; THE BAZELON

CENTER; ASSISTED LIVING FACILITIES

ASSOCIATION OF AMERICA; ASSISTED

LIVING LEGAL DEFENSE AND

EDUCATION FUND, INCORPORATED;

NATIONAL FAIR HOUSING ALLIANCE;

OXFORD HOUSE,

Amici Curiae.

BRYANT WOODS INN, INCORPORATED,

Plaintiff-Appellee,

v.

HOWARD COUNTY, MARYLAND;

HOWARD COUNTY PLANNING BOARD,

Defendants-Appellants.

THE AMERICAN ASSOCIATION OF

No. 96-1284

RETIRED PERSONS; THE BAZELON

CENTER; ASSISTED LIVING FACILITIES

ASSOCIATION OF AMERICA; ASSISTED

LIVING LEGAL DEFENSE AND

EDUCATION FUND, INCORPORATED;

NATIONAL FAIR HOUSING ALLIANCE;

OXFORD HOUSE,

Amici Curiae.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-95-595-S)

Argued: March 5, 1997

Decided: August 25, 1997

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-

2

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 violated 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, Bryant 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

3

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-

4

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 that "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 particular 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

5

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 property 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 corporation, Bryant Woods Inn, Inc., alleging that Howard County

intentionally discriminated against Bryant Woods Inn and failed to

6

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 found, 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 because 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., 319 U.S. 315 (1943), we should abstain in favor of the

state process. We believe that none of these defenses applies to the

circumstances before us.

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

7

also Gladstone, Realtors v. Village of Bellwood; 441 U.S. 91, 106

(1979); Jackson v. Okaloosa County, 21 F.3d 1531, 1541 n.16 (11th

Cir. 1994); Huntington Branch, N.A.A.C.P. v. Town of Huntington,

689 F.2d 391, 394 n.3 (2d Cir. 1982); House Judiciary Committee

Report on the Fair Housing Amendments Act of 1988, H.R. Rep. 100-

711, at 39 (1988), reprinted in, 1988 U.S.C.C.A.N. 2173, 2200 ("An

aggrieved person is not required to exhaust the administrative process

before filing a civil action. The Committee intends for the administra-

tive proceeding to be a primary, but not exclusive, method for persons

aggrieved by discriminatory housing practices to seek redress.").

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, 37 F.3d 1230, 1234 (7th Cir. 1994). In deciding whether an

issue is ripe, we decide whether the issue is substantively definitive

enough to be fit for judicial decision and whether hardship will result

from withholding court consideration. See Abbott Laboratories v.

Gardner, 387 U.S. 136, 148-49 (1967), modified on other grounds by

Califano v. Sanders, 430 U.S. 99, 104 (1977); Charter Fed. Sav. Bank

v. Office of Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992).

While the county must be afforded an opportunity to make a final

decision, the issue is sufficiently concrete for judicial resolution once

an accommodation is denied. Fair Housing Act claims are thus unlike

takings claims, which do not ripen until post-decisional procedures

are invoked without achieving a just compensation. See Williamson

County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 195

(1985). That difference is attributable to the fact constitutional injury

under the Just Compensation Clause does not arise"`unless or until

the state fails to provide an adequate postdeprivation remedy for the

property loss.'" Id. at 195 & n.14 (quoting Hudson v. Palmer, 468

U.S. 517, 532 n.12 (1984)) (emphasis added). Under the Fair Housing

Act, however, a violation occurs when the disabled resident is first

denied a reasonable accommodation, irrespective of the remedies

granted in subsequent proceedings. Bryant Woods Inn has alleged a

8

completed violation of the Fair Housing Act, which is consequently

ripe for review.

Finally, Howard County urges us to abstain under the principles of

Burford v. Sun Oil Co., 319 U.S. 315 (1943), and its progeny. The

county argues that this case is analogous to "the routine land-use dis-

putes that inevitably and constantly arise among developers, local res-

idents, and municipal officials [which are] simply not the business of

the federal courts." Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810,

828 (4th Cir. 1995) (quoting Gardner v. City of Baltimore, 969 F.2d

63, 67 (4th Cir. 1992)); see also Pomponio v. Fauquier County Bd.

of Supervisors, 21 F.3d 1319, 1328 (4th Cir. 1994) (en banc)

("[When] plaintiffs' federal claims stem solely from construction of

state or local land use or zoning law, not involving the constitutional

validity of the same and absent exceptional circumstances . . . the dis-

trict courts should abstain under the Burford doctrine to avoid inter-

ference with [local] . . . land use policy." (emphasis added)). This

argument, however, fails to recognize that unlike our Burford cases,

Bryant Woods Inn does not contest the interpretation of local law, but

argues that a federal antidiscrimination statute requires the county to

make accommodation to its properly interpreted zoning ordinance.

Hence, we are not in danger of misapplying local laws because of the

impossibility of unraveling the skein of federal claims and the inter-

pretation of local law.

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 approval

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

9

("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).

Bryant 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, 89 F.3d 1096,

1101 (3d Cir. 1996); Shapiro v. Cadman Towers, Inc., 51 F.3d 328,

334 (2d Cir. 1995); United States v. California Mobile Home Park

Management Co., 29 F.3d 1413, 1416-17 (9th Cir. 1994); Smith &

Lee Assoc., Inc. v. City of Taylor, 13 F.3d 920, 930 (6th Cir. 1993).

Land use planning and the adoption of land use restrictions consti-

tute some of the most important functions performed by local govern-

ment. See, e.g., FERC v. Mississippi, 456 U.S. 742, 768 n.30 (1982)

("regulation of land use is perhaps the quintessential state activity");

Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J.,

dissenting) ("[zoning] may indeed be the most essential function per-

formed by local government"). Local land use restrictions seek to pre-

10

vent the problems arising from the proverbial "pig in the parlor

instead of the barnyard," Village of Euclid v. Ambler Realty Co., 272

U.S. 365, 388 (1926), and to preserve "the character of neighbor-

hoods, securing `zones where family values, youth values, and the

blessings of quiet seclusion and clean air make the area a sanctuary

for people,'" City of Edmonds v. Oxford House, Inc., 514 U.S. 725,

732-33 (1995) (quoting Village of Belle Terre , 416 U.S. at 9). In

Euclid, the Court upheld the constitutionality of local land use restric-

tions, observing that "apartment houses which in a different environ-

ment would be not only entirely unobjectionable but highly desirable,

come very near to being nuisances" in residential neighborhoods of

detached houses. Euclid, 272 U.S. at 395.

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 "reasonable 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, 98 F.3d 175, 178 (5th Cir.

1996). But see Hovsons, 89 F.3d at 1103 (placing the burden of prov-

ing that a proposed accommodation is not reasonable on the defen-

dant).

11

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 fundamentally alter the

nature of the apartment complex. See Bronk v. Ineichen, 54 F.3d 425,

429 (7th Cir. 1995).

The "necessary" element -- the FHA provision mandating reason-

able accommodations which are necessary to afford an equal opportu-

nity -- requires the demonstration of a direct linkage between the

proposed accommodation and the "equal opportunity" to be provided

to the handicapped person. This requirement has attributes of a causa-

tion requirement. And if the proposed accommodation provides no

direct amelioration of a disability's effect, it cannot be said to be

"necessary." See Bronk, 54 F.3d at 429.

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 opportunity than nonhandicapped persons. Davis, 442

12

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,

115 F.3d 1173, 1178 (4th Cir. 1997) (recognizing res judicata effect

of factual findings of administrative agency). Thus, Bryant Woods

Inn has failed, as a matter of law, to establish in this case that its

requested accommodation is reasonable.

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 seeks 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

13

minimum size may be essential to the success" of group homes,

Brandt v. Village of Chebanse, 82 F.3d 172, 174 (7th Cir. 1996), the

Inn has introduced no evidence that group homes are not financially

viable with eight residents. On the contrary, the record before the

board shows that almost 30 such homes operate viably in Howard

County with 8 or fewer residents. Moreover, while it is uncontested

that group homes are often therapeutically valuable in providing

patients with a higher quality of life and thereby helping to avoid the

functional decline which is frequently consequent to institutionaliza-

tion in a traditional nursing home, see Erdman v. City of Fort

Atkinson, 84 F.3d 960, 963 (7th Cir. 1996) (noting therapeutic value

of group homes), Bryant Woods Inn has also presented no evidence

in this case that expansion from 8 to 15 residents would be therapeuti-

cally meaningful. Thus, nothing in the record that we can find sug-

gests that a group home of 15 residents, as opposed to one of 8, is

necessary to accommodate individuals with handicaps. If Bryant

Woods Inn's position were taken to its limit, it would be entitled to

construct a 10-story building housing 75 residents, on the rationale

that the residents had handicaps.

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.

14

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, 469 U.S. at 309 (applying the Rehabilitation Act). In

Alexander, the State of Tennessee modified its Medicare program --

to save taxpayer dollars -- by adopting a reduction in the compensa-

ble in-hospital care from 20 to 14 days per year. Handicapped claim-

ants argued that the change would adversely affect 27.4% of their

group while affecting only 7.8% of nonhandicapped persons. In con-

cluding that Tennessee's facially neutral change in benefits did not

discriminate against the handicapped in violation of the Rehabilitation

Act, the Supreme Court stated, "The state has made the same benefit

-- 14 days of coverage -- equally accessible to both handicapped and

nonhandicapped persons, and the State is not required to assure the

handicapped `adequate health care' by providing them with more

coverage than the nonhandicapped." Alexander, 469 U.S. at 309

(emphasis added). The Court noted that the administrative cost of

implementing a special regime for the handicapped"would be well

beyond" the reasonable accommodations required. Id. at 308. We

conclude that the same reasoning is applicable to the FHA.

In short, Bryant Woods Inn has failed to satisfy any of the three

requirements imposed by the FHA for accommodation of the handi-

capped persons.

IV

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 allow 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-

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tral. The district court, relying on Hughes v. Rowe, 449 U.S. 5 (1980)

(per curiam) (construing 42 U.S.C. § 1988), and Christianburg Gar-

ment Co. v. EEOC, 434 U.S. 412 (1978) (construing § 706(k) of Title

VII of the Civil Rights Act of 1964), stated:

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 was frivolous, unreasonable, or without

foundation, even though not brought in subjective bad

faith." Christianburg, 434 U.S. at 417, 421.

Howard County argues that the recent Supreme Court decision in

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), instructs that a fee-

shifting statute that permits the award of attorneys fees to a prevailing

party should be applied similarly to plaintiffs and defendants. That

case addressed an application for attorneys fees under the Copyright

Act where the Act made provision for attorneys fees to the prevailing

party, in the discretion of the district court, using language substan-

tially similar to that contained in the FHA. Compare 17 U.S.C. § 505

with 42 U.S.C. § 3613(c). The Supreme Court concluded that "pre-

vailing plaintiffs and prevailing defendants are to be treated alike, but

attorneys fees are to be awarded to prevailing parties only as a matter

of the court's discretion." Fogerty, 510 U.S. at 534.

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, 510 U.S. at

522-23. Acknowledging the distinction, however, Howard County

argues that for the purpose of applying the distinction, the FHA is

more similar to the Copyright Act than the Civil Rights Act of 1964

because the FHA applies "to a land use or zoning decision." While the

decision in this case involves the refusal to waive a zoning regulation,

it is not accurate to consider this a land use planning case. Instead,

this is an FHA case. The FHA prohibits discrimination because of

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"race, color, religion, sex, familial status, or national origin," as well

as handicap. See 42 U.S.C. § 3604. We conclude that these proscrip-

tions of the FHA draw on the same policies attending Title VII of the

Civil Rights Act and that the district court was correct in applying the

Christianburg standard in considering an application for attorneys

fees under 42 U.S.C. § 3613(c)(2).

In disposing of the petition for attorneys fees, the district court con-

sidered the merit of Bryant Woods Inn's claims, observing that they

were "not without foundation." The court noted that Bryant Woods

Inn "cited numerous cases decided under the Fair Housing Act as

authority for its litigation position." Although Bryant Woods Inn did

not prevail, the district court concluded that "a reasonable legal basis

existed for [Bryant Woods Inn's] initiation and pursuit of its action"

and accordingly denied Howard County's claim for attorneys fees.

We hold that the district court applied the correct legal standard to

its consideration of Howard County's petition for attorneys fees and

that it did not abuse its discretion in denying them in this case.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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