United States District Court, W.D. New York
For Colleen Austin, John Austin, Plaintiffs: Laurie Marie Lambrix, Monroe County Legal Assistance Center, Rochester, NY.
For Town of Farmington, Defendant: Sheldon W. Boyce, LEAD ATTORNEY, Brenna, Brenna & Boyce, PLLC, Rochester, NY.
DECISION and ORDER
MICHAEL A. TELESCA, United States District Judge.
Plaintiffs Colleen and John Austin (" plaintiffs" ) commenced this action for declaratory and injunctive relief against defendant Town of Farmington (" defendant" ) alleging discrimination in granting a variance which permits the installation of an above-ground pool with protective fencing on the basis of their son's disability which they claim contains the onerous requirement that the pool along with the protective fence are required to be removed upon
the sale of their home or when their disabled son is no longer in residence. This requirement of removal, they claim, violates the reasonable modifications requirement to be made under these circumstances as provided by the Federal Fair Housing Act (" FHA" ), Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. § 3601 et seq.
Before the Court are defendant's motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and plaintiffs' cross motion for summary judgment. For the reasons set forth below, the Court denies plaintiffs' motion for summary judgment and grants defendant's motion to dismiss the complaint in its entirety.
Unless otherwise noted, the following facts are taken from plaintiffs' complaint and the documents incorporated therein which the parties relied upon in their submissions.
Plaintiffs, a married couple with two children, moved from North Carolina to the town of Farmington in the vicinity of Rochester, New York in early 2010. Their older son, Cole, now ten years old, is severely disabled with cerebral palsy, and their younger son has been diagnosed with autism. Upon moving to Farmington, plaintiffs purchased a newly-constructed home located in the Auburn Meadows subdivision. Because the Town zoning ordinance applicable to their lot provided that no " accessory structures" were permitted to be installed on the premises, they successfully obtained a variance to the ordinance from the Town Board, which permitted them to erect a fence and an above-ground pool for the safety and rehabilitation of their disabled son.
Their appeal for a variance was presented to the Farmington Town Board, which passed a resolution " Granting a Temporary Accommodation to install a Fence and an Above-Ground Swimming Pool to the Owners of 1685 Lillybrook Court (or " the property" ) in the Auburn Meadows Subdivision, Town of Farmington, Ontario County" (the " resolution" ). The resolution, recognizing the " requirements and ideals of the [FHA,] . . . approve[d,] as a temporary accommodation for Cole Austin's special needs[,] . . . the installation of a fence and an above-ground swimming pool" subject to several conditions listed therein among which is the condition that the " fence and the above-ground swimming pool . . . be wholly removed from 1685 Lillybrook Court within 21 days of" Cole ceasing to use the home as his primary residence or plaintiffs " ceasing to be the owners . . . either by conveyance, death or any other reason." Resolution, ¶ 7(A)-(B). The removal must occur " at the expense of [plaintiffs] or of the new owners" of the premises. Resolution, ¶ 8.
Plaintiffs commenced this action, pursuant to the FHA, for injunctive and declaratory relief enjoining defendant from requiring that plaintiffs remove the fence and swimming pool when they cease to own the property or their son is no longer residing there. Plaintiffs specifically allege that the restoration provision of the resolution constitutes discrimination on the basis of their son's disability by violating their right to a reasonable modification ...