9th Cir: Senior Citizens Are Not Automatically Considered "Disabled"

With a name like Carefree, Arizona, who wouldn't want to spend the golden years there?  That appears to have been what was on the mind of one F.G. Budnick, a developer, when he decided he wanted to build the "Residences at Carefree," which he described as a "luxurious, age restricted, senior retirement residential community," in the small town north of Phoenix. 

But alas, it was not to be: the Town of Carefree didn't want him, or at least didn't want his proposed development, so the Planning and Zoning Commission denied the application for a Special Use Permit, which would have allowed the Residences to operate in a residential zone.

Budnick, however, would not be denied.  The future senior residents of the Residences would be "healthy, active, independent seniors who will be impossible to tell apart from" other Carefree residents, he asserted, and an appeal was lodged with the Town Council.  But like the Planning Commission, the Council denied the SUP.

Budnick then changed course: the Residence would serve disabled people, and the Town of Carefree was violating federal law by discriminating against the disabled if it denied his permit.  The parties met, but could not find a middle ground.

Budnick filed suit in federal court, alleging the denial of the SUP was a violation of the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3604, the Americans With Disabilities Act, due process and equal protection, and our old friend 42 U.S.C. § 1983 (violation of federal rights under color of state law).  The district court granted Carefree summary judgments on all of Budnick's claims.

In Budnick v. Town of Carefree, No. 06-15841 (Mar. 11, 2008), the Ninth Circuit affirmed.  The court held that Budnick could not establish a prima facie case of discrimination against the disabled for two reasons.

First, the court held that he did not raise triable issues of fact whether the Residence would house "disabled" people.  As the court put it, "Budnick suggests that the [Residence] would naturally house disabled individuals because the senior citizen residents of the [Residence] would have entered into life care contracts and would inevitably experience disabilities as they age."  Slip op. at 2314.  The court rejected the argument, holding:

We hold that potential [Residence] residents do not presently qualify as disabled under the FHAA simply because some of them will become disabled as they age.  To hold that they can currently be considered disabled under the FHAA would mean, in effect, that every senior citizen (indeed, every person) desiring to rent or buy housing could assert a present claim of discrimination based on inevitable disability due solely to the passage of time.  Such a holding would also disregard the reality that even if many individuals become disabled as they age, many do not, and that being old is not, per se, equivalent to being disabled.

Slip op. at 2314 (emphasis original).  In other words, the FHAA does not cover people who may become disabled, but only those who presently are.

Second, the court held that Carefree had valid, nondiscriminatory reasons for denying the SUP, and that a few statements by witnesses at the public hearings that the Residence would turn Carefree into a place where "people came to die," could not be attributed to the Town, and there was no evidence to show that the SUP was denied due to such beliefs.  Slip op. at 2319.

Download the opinion here.

Appellate practice notes:  The panel was comprised of Circuit Judges William C. Canby (born 1931), David R. Thompson (born 1930), and Milan D. Smith (born 1942).  It was an interesting oral argument, trying to convince three Ninth Circuit judges, all of whom presumably would be eligible to reside in the Residence at Carefree were it ever to open, that being elderly makes you "disabled."  The first question asked at orals:

Before we get to that, there's an underlying issue here that's really quite interesting to me.  It seems to me you are saying that -- at least the literature that was given to the city -- says these are going to be able-bodied people, at least 95 percent.  But we're making the claim for disability, and the reason people are disabled is that because they're human beings, and when you get old, you get disabled.  Is that the argument?

Judge Smith, the youngest member of the panel, authored the opinion.  The oral argument recording is posted here (6mb wav).