Estvanko v. City of Perry, Georgia et al

Filing 36

ORDER denying 29 Motion to Alter Judgment; granting 32 Motion for Summary Judgment. Judgment is to be entered in favor of Defendants on all claims. Ordered by Judge C. Ashley Royal on 5/6/11 (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GARY ESTVANKO,
Plaintiff,
v.
CITY OF PERRY, et. al.
Defendant.

:
:
:
:
:
:
:
:
:
:

Civil Action No.
5:09-CV- 137(CAR)

ORDER ON MOTION TO ALTER OR AMEND
& MOTION FOR SUMMARY JUDGMENT
Currently before the Court are Plaintiff Gary Estvanko’s Motion to Alter or Amend Judgment
and the Motion for Summary Judgment filed by Defendants City of Perry, et. al. (herein “the City”).
This case arises out of the City’s refusal to allow Plaintiff to use his property as a group home for foster
children. Plaintiff contends that enforcement of the City’s zoning ordinance prohibiting his home from
operating in the R-1 Residential District violates provisions of the Fair Housing Act (“FHA”), 42
U.S.C. §3601, et. seq., which require that all persons be provided equal access to housing – regardless
of their “familial status.”
In a prior Order [Doc. 28], this Court found that the City’s zoning ordinance was drafted
neutrally and did not violate the FHA on its face. The Court accordingly granted judgment in favor of
the City on that claim. Plaintiff has now filed a Motion to Alter or Amend that judgment pursuant to
Rule 59(e). The City responded to Plaintiff’s Motion and filed a Motion for Summary Judgment on
the remaining claims. Both motions have been fully briefed and considered, and for the reasons

discussed below, the Court finds that Defendants are entitled to judgment on all claims. Thus,
Plaintiff’s Motion to Alter of Amend Judgment [Doc. 29] is DENIED, and Defendants’ Motion for
Summary Judgment [Doc. 32] is GRANTED.
FINDINGS OF FACT 1
Plaintiff Gary Estvanko operates a children’s home in Centerville, Georgia and is a partner in
another home in Bremen, Georgia. (Estvanko Dep. pp. 10-11). In 2000, Plaintiff purchased property
near the City of Perry in Houston County with the intent to operate yet another children’s home.
(Estvanko Dep. p. 19). The new facility would potentially house up to twenty-four children currently
in the care of the Georgia Department of Family and Child Services. (Estvanko Dep. pp. 47). In
exchange for operating this home, Plaintiff expected to be paid by the State of Georgia up to $185 per
day for each child. (Estvanko Dep. p. 13). Per state regulations, Plaintiff would not live at the home,
but would delegate care of the children to paid staff members. (Estvanko Dep. pp. 32, 37, 53, 93, 94,
97). The property was never intended to be Plaintiff’s residence or home. (Estvanko Dep. p. 37).
When construction on the home began, it was located outside of the City within the jurisdiction
of Houston County. (Estvanko Dep. p. 19). While in the county, the property was zoned for agricultural

1

Plaintiff did not respond to the City’s Statement of “Material Facts Not in Dispute” [Doc. 32]
or include any statement of facts in his brief in response. The Court thus adopts the City’s statements
of fact as undisputed. See M.D.Ga. L.R. 56 (“All material facts contained in the moving party’s
statement which are not specifically controverted by specific citation to the record shall be deemed to
have been admitted, unless otherwise inappropriate.”); see also Mann v. Taser Intern., Inc., 588 F.3d
1291, 1303 (11th Cir. 2009) (holding that district court properly deemed defendant's statement of
material facts admitted when plaintiff failed to comply with the local rule); BMU, Inc. v. Cumulus
Media, Inc., 366 Fed. Appx. 47, 49 (11th Cir. 2010) (affirming grant of summary judgment when
respondent failed to file a response to movant’s statement of undisputed facts).
2

use. (Estvanko Dep. p. 21). As the project progressed, Plaintiff began having trouble with the building
inspectors for Houston County. (Estvanko Dep. pp. 21-23). Plaintiff then discovered that the soil
located on the property would not be conducive to providing well water and decided to request
annexation by the City so that City water could be accessed. (Estvanko Dep. p. 23). On his application
for annexation, Plaintiff stated that the house being built on the property would be used as a residence.
(Estvanko Dep. p. 24). On December 7, 2004, the City annexed the property and allowed Plaintiff to
access the City water system. (Estvanko Dep. pp. 27-28). The property was zoned, like every other
property adjacent to it, as R-1 Residential. (Beecham Aff ¶ 9). The R-1 Residential zoning district is
the most restrictive district in the City and allows only single family residences. (Beecham Aff. ¶ 10).
Other districts, such as commercial, institutional, and R-3 Multi-Family Residential, allow multi-family
dwellings and/or businesses. (Beecham Aff. ¶ 13).
After the property was annexed into the City, Plaintiff was able to finish construction without
any more problems thanks to more cooperative inspectors. (Estvanko Dep. pp. 26-27). In July of 2007,
Plaintiff sent a letter to the Perry City Council informing them that he and his wife wished to “open our
home up to foster children.” (Estvanko Dep. pp. 30, 36, 40). In this letter, Plaintiff asked for approval
from the council to operate a “foster home.” (Estvanko Dep. p. 36). A “foster home” is a home where
a family would house one or two foster children. (Estvanko Dep. p. 40). By Plaintiff’s own admission,
his home would actually be a “group home,” not a “foster home.” (Estvanko Dep. p. 40). After
conferring with the City’s legal counsel, the Director of Planning and Zoning, Mike Beecham, informed
Plaintiff that the City had no rules concerning “foster homes” and that foster children are not treated
any differently than children living with their biological parents. (Estvanko Dep. p. 39).

3

Shortly after the July 2007 exchange, Mike Beecham received a call from the Georgia
Department of Family and Child Services informing him of the true nature of Plaintiff’s enterprise.
(Beecham Dep. p. 30). It was during this conversation that Mr. Beecham learned that the house located
on the property would not be used as a single-family residence where the owner would reside and care
for a foster child, but instead would be operated as a “group home” with a paid staff that would need
to come and go around the clock. (Beecham Dep. p. 30).
Upon learning this information, Mr. Beecham informed Plaintiff that the proposed use of his
property was not suitable for the R-1 Residential district. (Beecham Dep. p. 30-31). Mr. Beecham
suggested to Plaintiff that his use was more suitable for the recently created Institutional District and
that Plaintiff should apply for a re-zoning of his property. (Beecham Dep. p. 30-31). Plaintiff heeded
this advice and applied for a rezoning of the property from R-1 Residential to Institutional. (Estvanko
Dep. p. 46). Plaintiff’s request was presented to the City’s Planning Commission which makes
recommendations to the City Council. The City Counsel, not the Planning Commission, has final say
as to whether or not a property is rezoned. (Beecham Dep. p. 46). The Planning Commission
considered Plaintiff’s request and voted to not recommend rezoning to the City Council. (Estvanko
Dep. p. 43). Upon learning of this decision, Plaintiff removed his application for rezoning, thereby
preventing the City Council from making any final decision on the matter. (Estvanko Dep. 43).
On the same day, he filed an application for de-annexation from the City. (Estvanko Dep. pp.
43, 49). This request was also presented to the Planning Commission which again recommended denial
of the request on the grounds that the City had already allowed Plaintiff to connect to the City’s water
main in fulfillment of its commitment to Plaintiff, and it saw no reason to de-annex the property.

4

(Beecham Aff. ¶ 20). The City Council agreed and denied Plaintiff’s extraordinary request to be
de-annexed. (Beecham Aff ¶ 21). The only time in recent memory that a parcel has been granted a
de-annexation involved a situation in which the City promised to extend a sewer line to a property but
was unable to do so. (Beecham Dep. pp. 41-44). In that instance, the City felt that it had not lived up
to its promise made to the property owner and granted the de-annexation. (Beecham Dep. pp. 41-44).
De-annexation is considered an extraordinary measure. (Beecham Aff. ¶ 22).
Following the City’s denial of Plaintiff’s request for de-annexation, he filed a complaint with
the Department of Housing and Urban Development (“HUD”). (Estvanko Dep. p. 71). Plaintiff later
withdrew his HUD complaint, preferring instead to pursue his remedies in this Court.

DISCUSSION
Plaintiff’s claims in this case fall solely within the provisions of the FHA, 42 U.S.C. § 3604 (a)(c). He did not plead or assert any other challenges or claims. In relevant part, the FHA provides that
it is unlawful
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to
negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to
any person because of race, color, religion, sex, familial status, or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or
rental of a dwelling, or in the provision of services or facilities in connection therewith,
because of race, color, religion, sex, familial status, or national origin.
(c) To take, print, or publish, or cause to be made, printed, or published any notice,
statement, or advertisement, with respect to the sale or rental of a dwelling that indicates
any preference, limitation, or discrimination based on race, color, religion, sex,
handicap, familial status, or national origin, or an intention to make any such
preference, limitation, or discrimination.
Id. (emphasis added). These provisions have been routinely interpreted to prohibit the enforcement
5

of zoning ordinances, like the one at bar, in a manner that denies a protected class equal access to
housing. See City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732,115 S.Ct. 1776, 1782 (1995);
Hallmark Developers, Inc. v. Fulton County, 466 F.3d 1276, 1283 (11th Cir. 2006); Fair Housing in
Huntington Comm. Inc. v. Town of Huntington, N.Y., 316 F.3d 357, 366 (2nd Cir. 2003) (“Conduct
prohibited by [§ 3604(a)] includes discriminatory zoning practices.”).
Plaintiff has articulated multiple theories for recovery under the FHA. Plaintiff has asserted that
the City’s zoning ordinance is unlawful on its face; that the ordinance has a discriminatory impact on
foster children living in group homes; that the City intentionally discriminated against the children in
this case on the basis of their “familial status” when zoning decisions were made; and that the City
violated the FHA by failing to provide “reasonable accommodations” for his group home. In an Order
on November 17, 2010 [Doc. 28], this Court found that Plaintiff cannot state a claim under
§3604(f)(3)(B) for the City’s alleged refusal to provide “reasonable accommodations” for the children’s
“familial status” and dismissed that claim. The Court also found that the ordinance’s definition of
family was facially neutral, and thus it’s plain language did not violate the FHA. Judgment was
accordingly granted in favor of the City with respect to Plaintiff’s claim that the ordinance is
discriminatory on its face.2 The Court then advised the parties that the remaining claims would be
considered for summary judgment.
The City responded to the Court’s Order by filing a Motion for Summary Judgment. Through
its Motion, the City asserts that Plaintiff cannot satisfy a prima facie case of either disparate impact or

2

Prior to filing their briefs, both parties understood that the Court would consider and decide
this legal issue as a matter of law.
6

intentional discrimination. Plaintiff responded to the City’s Motion and also filed his own Motion to
Alter and Amend Judgment, charging that the Court committed clear error in finding that the City’s
zoning ordinance was facially neutral. Plaintiff has not objected to the Court’s dismissal of his
reasonable accommodation claim.3
Notably, one issue that both parties fail to specifically address is whether the proposed residents
of Plaintiff’s group home are even eligible for “familial status” protection under the FHA. While the
parties have discussed at length the relevant distinctions between a traditional family home and
Plaintiff’s employee-staffed group home, neither questioned whether an employee-operated group
home actually falls within the protected class. The Court, however, recognized this issue in its previous
Order and declined to raise it sua sponte at that time. The Court now feels that it must address the
issue. Clearly, if the residents of Plaintiff’s group home are not protected by the FHA, the exclusion
of their home from the R-1 Residential District cannot be said to violate the statute.
Plaintiff bases his claims entirely on the premise that “foster children” are a protected class
under the FHA by virtue of the “familial status” provision. However, “familial status” is defined by
the FHA as (1) one or more minors (2) domiciled with (3) a parent or other person having legal custody
of the minor or the designee of a parent or person having legal custody of the minor. 42 U.S.C. §
3602(k). Thus, Plaintiff mis-defines the class of persons protected by the FHA when he states that the
FHA protects “foster children.” Foster children, in and of themselves, are not a class of persons
protected by the FHA. Rather, the statute is intended to protect individuals living with children (related

3

In the prior order, the Court acknowledged that Plaintiff did not have notice the Court was
considering this legal issue and granted Plaintiff leave to file a timely motion for reconsideration which
would be considered de novo. Plaintiff has chosen not to file a motion for reconsideration.
7

and unrelated) from being denied housing simply because children will be in the home. See Robert G.
Schwemm, Housing Discrimination Law and Litigation § 11E:2 (2010) (explaining this provision to
mean that “housing providers may no longer refuse to deal with people because their households
include children.”).
Any persons seeking protection under this provision, therefore, must qualify as a “family with
children” by meeting the definition of “familial status” under the FHA. Because Plaintiff’s proposed
group home would be housing children under the age of eighteen, it meets the “one or more minors”
element of the “familial status” definition. However, to satisfy the remainder of the statutory definition,
the minors residing in Plaintiff’s group home must be domiciled with a parent or other person having
legal custody of the children or a designee thereof. See § 3602(k).
Plaintiff does not suggest that any of the children living in his group home would be living with
a parent or a designee of a parent. Thus, by default, he must be proceeding under the theory that the
children will be domiciled with another person having legal custody of the child or the designee of such
person as contemplated by the FHA. As foster children, however, the children living in Plaintiff’s
group home would be wards of the State and in the legal custody of a government agency, the Georgia
Department of Family and Children Services. Government agencies and political subdivisions are not
specifically included within the definition of “person” under the FHA. See § 3602(d). The FHA
defines a “person” as “one or more individuals, corporations, partnerships, associations, labor
organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated
organizations, trustees, trustees in cases under Title 11, receivers, and fiduciaries.” Id.
Unfortunately, the question of whether state agencies fall within the FHA’s definition of

8

“person” has not been squarely addressed in this context. However, the matter has been considered in
other contexts. The United States Court of Appeals for the Tenth Circuit addressed the issue of whether
a state agency has standing to bring a suit as an “aggrieved person” under the FHA and found that
government agencies and political subdivisions could bring suit under the FHA even though they were
not specifically included within the statute’s definition of a person. Housing Auth. of Kaw Tribe of
Indians of Okla. v. City of Ponca City, 952 F.2d 1183, 1194 (10th Cir 1991), certiorari denied 112
S.Ct. 1945, 504 U.S. 912, 118 L.Ed.2d 550. In another case, the Seventh Circuit held that foster parents
licensed in Illinois are protected by the FHA from discrimination on the basis of familial status. Gorski
v. Troy, 929 F.2d 1183, 1188 (7th Cir. 1991). The court did not address whether the Illinois
Department of Child and Family Services was a “person having legal custody” of a minor, but found
that foster parents may be considered “designees” within the meaning of the statute. Id. The court
accordingly held that families with foster children could not be denied equal access to housing implicitly recognizing the government agency as a “person” having legal custody of the minor. Id.
Neither of these cases are directly on point. Nonetheless, it is apparent that Congress intended
the FHA to protect all “families with children” from housing discrimination. See 54 Fed. Reg. 3236
(Jan. 23, 1989). Congress did not distinguish between children related by blood, marriage, or adoption
and unrelated children, and this Court finds no reason why Congress would have intended to exclude
families with foster children from the “familial status” protection provided by the FHA. Therefore, the
Court finds that the State of Georgia’s Department of Family and Children Services (“DFACS”) may
be considered a “person” (i.e., an “unincorporated organization”) having legal custody of such children
under the FHA. See 42 U.S.C. § 3602(d) (including “unincorporated organizations” within the

9

definition of “person”). Foster parents or equivalently approved guardians or legal custodians may
further be considered “designee[s]” of DFACS - entitling individuals living with foster children in
Georgia to familial status protection under the FHA.
Even so, these findings do not fully resolve the issue before the Court. As discussed above, by
definition “familial status” applies only if the parent, legal custodian, or designee of the parent or legal
custodian is “domiciled with” the children. See 42 U.S.C.A. § 3602(k). Addressing this requirement,
the Tenth Circuit Court of Appeals explained that, under the FHA, the term “domicile” was intended
to refer to an individual’s “true, fixed, and permanent home . . . .” See Keys Youth Svc., Inc. v. City
of Olathe, KS, 248 F.3d 1267, 1271-72 (10th Cir. 2001). Thus, by the plain terms of the FHA, “familial
status” requires that the minor’s caretakers share the same fixed home as the minor. Id. at 1271
(“‘Familial status’ requires that the minors be domiciled ‘with’ their caretaker.”).
In the present case, it is undisputed that Plaintiff purchased the property at issue with the intent
to operate a children’s home that would house up to twenty-four children with the approval of DFACS.
This home was never intended to be Plaintiff’s residence; it was always intended to be a commercial
operation. In fact, state regulations prohibit Plaintiff from living in the home and require that he
delegate care of the children to paid staff members. Plaintiff’s property would thus operate as a
commercial group home for children with a staff that would need to come and go around the clock.
In exchange, the State of Georgia would pay Plaintiff up to $185 per day for each child.
Plaintiff’s intended group home, therefore, would be an employee-staffed business, not a
residence in which the children will be truly domiciled with their caretaker. Even if Plaintiff was to
show that some caretakers would stay overnight or “reside” in the home, the residents would still fall

10

short of qualifying for familial status protection. See Keys, 248 F.3d at 1272. Clearly, while a person's
“home” may be defined in many ways, his place of employment is not one of them. Id. at 1271 n.3.
“Traditionally, an individual has only one domicile at a time,” and thus, a person is not domiciled in
a residence if he maintains an additional residence which he considers to be his true home. Id.
Moreover, to qualify for familial status protection, it would seem that the primary caretaker must
not only live in the home with the children, but the adults and children should also function as family
together. This rationale would not exclude foster children. As found above, foster families are
protected by the familial status provisions of the FHA. See also Gorski, 929 F.2d at 1189. An
institutional business operated by a rotating staff, however, is not a “family” in any sense of the word.
To encompass such living arrangements within the FHA's protection of familial status would likely
extend the scope of the statute beyond sensible bounds.
There is no evidence that Congress intended the FHA to provide protection for children living
in staffed group homes – regardless of whether the staff resides on the premises. On the contrary, the
principle statutory construction for this provision is that “families with children must be provided the
same protections as other classes of persons” protected by the FHA. See 54 Fed. Reg. 3236 (Jan. 23,
1989) (emphasis added); Soules v. Dep't of Hous. & Urban Dev., 967 F.2d 817, 821 (2nd Cir.1992)
(“Congress’ primary concern [in passing the FHA] was to eliminate direct discrimination against
families with children.”). When enacting the familial status provision, Congress was not concerned
about the zoning of group homes for children. Rather, Congress amended the FHA to include familial
status protection because of the growing concern that “[i]n many parts of the country families with
children [were being] refused housing despite their ability to pay for it.” Eastampton Cntr, L.L.C. v.

11

Twp. of Eastampton, 155 F. Supp.2d 102, 116 (D.N.J. 2001) (citing H.R. Rep. No. 100-711, at 19
(1988) reprinted in U.S.C.C.A.N. 2173, 2180). Congress intended the provision to prevent
discriminatory practices which resulted in “families with children” being forced to live in substandard
or overcrowded conditions. See id. at n.16 (citing H.R. Rep. No. 100-711, at 19). Congress further
noted that such discrimination often resulted in families living in separate homes altogether – forcing
children to live apart from family members unnecessarily. See id.
While the FHA is intended to have a broad application, familial status protection is best applied
when an individual is denied housing merely because a child will be living in the home. See e.g.,
Woodard v. Fanboy, L.L.C., 298 F.3d 1261 (11th Cir. 2002) (brought by woman alleging that she was
evicted because she had children living with her); White v. U.S. Dept. of Housing and Development,
475 F.3d 898 (7th Cir. 2007) (brought by woman alleging that she was denied housing because she was
an unwed mother); Hamad v. Woodcrest Condominium Ass'n, 328 F.3d 224 (6th Cir. 2003) (brought
by resident wishing to live with teenage nephew in her second floor unit when condominium association
restricted children to living on the first floor). Youth group homes have not historically succeeded in
receiving familial status protection. See e.g., Keys, 248 F.3d at 1271-72 (holding that group youth
home did not qualify for familial status protection under the FHA); Westhab, Inc. v. City of New
Rochelle, N.Y., 2004 WL 1171400 * 15 (S.D.N.Y. 2004) (same); but see, Children’s Alliance, 950
F.Supp. at 1497 n. 4 (declining to reconsider, without explanation, prior (unpublished) finding that
residents of group home fell within FHA’s definition of familial status).
After considering the language of the statute, the relevant case law, and the congressional
history, the Court agrees with those refusing to extend the familial status protection for commercial

12

group homes. The Court thus finds that Plaintiff’s group home is in fact not entitled to familial status
protection under the FHA. The home will be staffed by rotating employees and does not fall within the
class of persons Congress intended to protect when amending the FHA include to “familial status”
protection. Therefore, judgment is due to be granted in favor of Defendants on all claims.
However, even if the potential residents of Plaintiff’s group home are entitled to protection
under the FHA based upon their familial status, the end result would be the same. The City’s ordinance
is facially neutral, and Plaintiff has failed to identify evidence to support a prima facie case of either
disparate effect or intentional discrimination under the FHA. Thus, as discussed in detail below, the
Court did not err in its prior order, and Defendants are entitled to judgment on the remaining claims.

I.

The City’s Ordinance is Facially Neutral
The Court’s prior finding that the City’s ordinance did not violate the FHA on its face was not

erroneous as alleged in Plaintiff’s Motion to Alter or Amend Judgment. Under Rule 59(e) a party may
move to alter or amend a judgment in a civil case within twenty-eight days of the entry of judgment.
Fed.R.Civ.P. 59(e). Although the rule does not set forth any specific criteria to be considered, courts
have identified three grounds justifying relief under Rule 59(e): “(1) an intervening change in
controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent
manifest injustice.” Williams v. Cruise Ships Catering and Serv. Int'l, 320 F.Supp.2d 1347, 1357-58
(S.D. Fla. 2004); United States v. Battle, 272 F.Supp.2d 1354, 1357 (N.D. Ga. 2003). In this case,
Plaintiff does not identify a change in the controlling law or cite to new evidence. Instead, Plaintiff
argues that the Court’s reasoning in the prior order was clearly erroneous.
In its November 17, 2010 Order, the Court found the City’s zoning ordinance was facially
13

neutral because “foster children living in group homes” are not treated differently, on the face of the
ordinance, than any other unrelated persons. The Court then cited a case out of the Southern District
of Florida for the purpose of showing that the Court’s finding was in accord with a conclusion reached
in another case. See Jeffrey O. v. City of Boca Raton, 511 F.Supp.2d 1339, 1356 (S.D. Fla. 2007)
(implicitly finding that ordinance was facially neutral because the definition treated all individuals alike,
handicapped and non-handicapped, provided they were unrelated).4
The Court’s findings were not clearly erroneous. The City’s zoning ordinance defines a
“family” as
[o]ne (1) or more persons occupying a single dwelling unit, provided that, unless all
members are related by blood, marriage or adoption, no such families shall contain over
three (3) persons, in addition, a related family may have up to two (2) unrelated
individuals living with them[.] The term family does not include any organization or
institutional group.
Thus, on its face, the City’s ordinance does not distinguish between different types of unrelated persons.
In other words, the ordinance does not “single out” households containing unrelated children and treat
them differently than households containing unrelated adults.
The Court also applied the law without clear error. When addressing a facial challenge to a
zoning ordinance, the Court must focus only on the explicit terms of the ordinance; the effect or intent
of the ordinance is irrelevant. Marriott Senior Living Svcs., Inc. v. Springfield Tp., 78 F. Supp.2d 376,
388 (E.D. Pa. 1999). In other words, an ordinance facially discriminates against a protected group only
if the language on the face of the statute singles out protected persons and applies different rules to

4

In the prior order, the Court referenced page sixty-five of that case, when in fact the correct
page was fifty-six. See Jeffrey O., 511 F.Supp.2d at 1355-56.
14

them. Jeffrey O., 511 F.Supp.2d at 1349.
Upon review, the Court again finds that the City’s zoning ordinance is facially neutral. There
is no plain reference to households including unrelated children in the ordinance, and foster children
living in group homes are not treated differently under the ordinance than any other unrelated
individuals living together. Handicapped adults, recovering alcoholics, battered women, sorority and
fraternity members, and senior citizens living in groups of four or more are treated the same. Of course,
unlike these groups, children living with a parent, legal custodian, or a designee thereof are entitled to
“familial status” protection under the FHA. See 42 U.S.C. §3602(k). Still, there is no basis to find that
the ordinance singles out individuals living with children and treats them differently than any other class
of persons. The FHA certainly does not require that individuals living with children (related or
unrelated) receive special treatment. The statute only requires that “families with children” be provided
the same protections as other classes of persons. See 54 Fed. Reg. 3236 (Jan. 23, 1989). On the face
of the ordinance at issue here, it is apparent that households including children who are not related to
their caretakers by blood, marriage, or adoption are provided the same protection as other types of
households containing persons not related by blood, marriage, or adoption. The ordinance does not
discriminate against households with children on its face.
However, Plaintiff’s argument is not lost on this Court. The Court agrees that the effect of this
ordinance may be that twenty-four minor children related by blood, marriage, or adoption will live in
a single-family dwelling in an R-1 residential district with their parent or legal guardian, while three
foster children cannot live in a single dwelling in an R1 residential district - even if they are living with
a foster parent in a traditional family setting. Thus, households which include unrelated children are

15

not treated similarly as those in which the children are related to their caretakers by blood, marriage,
or adoption. This seems contrary to the spirit of the FHA. Again, familial status protection is afforded
to all minors domiciled with a parent, legal custodian, or the designee thereof. See 42 U.S.C. § 3602(k).
Other district courts have accordingly found that housing requirements mandating that a person have
“legal custody” of children in the household violate the FHA. See e.g., Ortega v. Housing Auth. of City
of Brownsville, 572 F. Supp.2d 829, 840 (2008).
The ordinance at issue here has no such requirement on its face, and for the purpose of the
present inquiry, the effect of the ordinance is irrelevant. Marriott Senior Living, 78 F. Supp.2d at 388.
Indeed, it appears that the argument Plaintiff makes is more aptly articulated as a disparate impact
argument – i.e., that persons entitled to familial status protection are not being provided equal access
to housing under the facially neutral zoning ordinance. With respect to the present claim, however, the
Court again finds that the City’s ordinance is neutral and does not, by its plain terms, violate the FHA.

II.

Disparate Impact Claim
As noted above, the core of Plaintiff’s claims is essentially his allegation that the City’s zoning

ordinance has an unlawful discriminatory effect (or disparate impact) on foster children living in group
homes. The FHA does provide relief from the application of a facially neutral ordinance that has a
discriminatory impact on a group protected by the FHA. Regional Econ. Cmty. Action Program, Inc.
(RECAP) v. City of Middletown, 294 F.3d 35, 52 (2nd Cir. 2002). When proceeding under this theory,
no evidence of discriminatory intent is required; the plaintiff must only provide evidence of the
discriminatory effect. Reese v. Miami-Dade County, 242 F. Supp.2d 1292, 1301 (S.D. Fla. 2002)
(citing Elliott v. City of Athens, 960 F.2d 975, 984 (11th Cir. 1992)). A majority of courts use a burden
16

shifting analysis, similar to the one used in employment discrimination cases, to determine whether
enforcement of a facially neutral ordinance violates the FHA.5 See e.g., Gallagher v. Magner, 619 F.3d
823, 833 (8th Cir. 2010). This Court will likewise use a burden-shifting analysis.
To state a prima facie case under a discriminatory impact theory, a plaintiff must show that
enforcement of the ordinance has a disproportionate or disparate effect on a protected group. Jeffrey
O., 511 F.Supp.2d at 1365; RECAP, 294 F.3d at 52-53. This is proven by demonstrating either that the
ordinance or decision has “a segregative effect” on the protected group or that “it makes housing
options significantly more restrictive for members of a protected group than for persons outside that
group.” Hallmark Dev., 466 F.3d at 1286. “Typically, a disparate impact is demonstrated by statistics,”
id., and the plaintiff is “not required to show that the policy or practice was formulated with
discriminatory intent.” Huntington Branch, 844 F.2d at 934-35.
Once the plaintiff demonstrates a disparate impact, the burden shifts to the defendant to “prove
that its [practice of enforcing the challenged zoning ordinance] furthered, in theory and in practice, a
legitimate, bona fide governmental interest and that no alternative would serve that interest with less
discriminatory effect.’” Graoch Assocs. # 33, L.P. v. Louisville/Jefferson County Metro Human
Relations Comm'n, 508 F.3d 366, 383 (6th Cir. 2007) (citing Huntington Branch, 844 F.2d at 936); see

5

Although the United States Court of Appeals for the Eleventh Circuit has not expressly addressed the
issue of whether a burden shifting analysis should be employed in deciding disparate impact claims under the
FHA, a majority of the federal circuits have adopted some form of either a two or three prong burden-shifting
analysis. See Gallagher v. Magner, 619 F.3d 823, 833 (8th Cir. 2010); Ojo v. Farmers Group, Inc., 600 F.3d
1201, 1203, (9th Cir. 2010); Darst-Webbe Tenant Ass'n Bd. v. St. Louis Hous. Auth., 417 F.3d 898, 901-02 (8th
Cir. 2005); Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Tp. of Scotch Plains, 284 F.3d 442, 466-67 (3rd
Cir. 2002); Langlois v. Abington Hous. Auth., 207 F.3d 43, 51 (1st Cir. 2000); Huntington Branch, NAACP v.
Town of Huntington, 844 F.2d 926, 934-35 (2nd Cir. 1988). District courts within the Eleventh Circuit have also
applied a burden shifting analysis in disparate impact cases. See e.g., Jeffrey O., 511 F.Supp.2d at 1356; Reese
v. Miami-Dade County, 2009 WL 3762994 * 11 (S.D. Fla. 2009).

17

also, Lapid-Laurel, 284 F.3d at 466-67. Stated another way, the City must “demonstrate that its policy
or practice ha[s] a ‘manifest relationship’ to a legitimate, non discriminatory policy objective and was
necessary to the attainment of that objective.” Gallagher, 619 F.3d at 834 (quoting Darst-Webbe Tenant
Ass'n Bd. v. St. Louis Hous. Auth., 417 F.3d 898, 902 (8th Cir. 2005)); Reese v. Miami-Dade County,
2009 WL 3762994 * 11 (S.D. Fla. 2009). If the City shows that its actions were justified, the plaintiff
may then attempt “to show ‘a viable alternative means’ was available to achieve the legitimate policy
objective without discriminatory effects.” See id; Gallagher, 619 F.3d at 834.
In this case, Plaintiff makes numerous allegations that foster children are disparately impacted
by the zoning ordinance. To support his accusations, Plaintiff identifies hypothetical scenarios
demonstrating how foster children may be deprived equal treatment under the statute and asserts that
foster children as a class are thus harmed by the zoning ordinance’s restrictions. This Court agrees that,
hypothetically, such situations may possibly have a disparate impact on foster children.
The difficulty with Plaintiff’s argument on summary judgment, however, is that it is inherently
speculative. To survive summary judgment, a plaintiff must make a prima facie case of discrimination
by showing an adverse effect on the protected class “by offering statistical evidence of a kind or degree
sufficient to show that the practice in question has caused the adverse effect in question.” Graoch
Assocs, 508 F.3d at 373. Thus, the kind of statistical analysis needed to prove a disparate impact claim
must be more than speculative. Hallmark Dev., 466 F.3d at 1286-1287. The evidence should also
ideally show that an actual group of protected persons are currently being denied an equal right to
housing. As noted by the Eleventh Circuit Court of Appeals, successful disparate impact claims are
usually supported by evidence that “there is a waiting list for . . . housing or a shortage of housing for

18

which only a defined group qualified.” Id. at 1287.
In this case, Plaintiff has failed to provide any evidence that foster children are actually denied
equal access to housing because of the City’s ordinance. Plaintiff has offered absolutely no statistical
evidence of a discriminatory impact on foster children. Nor is Plaintiff’s argument supported by other
evidence showing that the ordinance has “a segregative effect” on a certain percentage of children in
the population or that “it makes housing options significantly more restrictive” for foster children.
Plaintiff has likewise failed to provide any evidence that children are actually waiting to move into his
home or that foster children will otherwise be denied housing in the R-1 Residential District because
of the ordinance. By the same token, there is no evidence showing that the ordinance causes an adverse
effect on foster children. Plaintiff merely relies on the general proposition that it is better for children
to live in a single-family residential neighborhood. He cites no expert testimony or other evidence to
support his broad generalization. Plaintiff has thus failed to produce sufficient evidence to establish
a prima facie case of discriminatory impact under the Fair Housing Act, and summary judgment should
be granted favor of the City as to this claim. See Macone v. Town of Wakefield, 277 F.3d 1, 8 (1st Cir.
2002) (affirming grant of summary judgment where plaintiff failed to provide evidence that any
minorities would actually move into the housing).
Even if Plaintiff could make a prima facie case of disparate impact, the City has identified
evidence that the zoning ordinance furthered, in theory and in practice, a legitimate, bona fide
governmental interest. It is undisputed that the zoning district in question, the R-1 Residential Zoning
District, is the City’s most restrictive district. It allows only single-family residential homes and other
uses necessary to a residential neighborhood such as schools and churches. According to the City, it

19

has restricted property use in this zone in an effort to maintain the residential character of this setting,
and the single-family residential character of the neighborhood would be utterly defeated by allowing
a business enterprise to operate within it even if that business is to operate a facility for foster children.
This Court agrees that if multifamily or business enterprises of any type are established within the
single-family residential district, its character is fundamentally changed. The City’s interest in
preserving the single family residential character of the district is a legitimate justification for its zoning
restriction. See DeSisto Coll., Inc. v. Town of Howey-in-the-Hills, 706 F. Supp. 1479, 1506 (M.D. Fla.
1989) (finding that city had legitimate interest in preserving residential nature of town), aff’d, 888 F.2d
766 (11th Cir. 1989); see also Village of Belle Terre v. Boraas, 416 U.S. 1, 7-9, 94 S.Ct. 1536, 39
L.Ed.2d 797 (1974); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 394–95, 47 S.Ct. 114, 71
L.Ed. 303, (1926) (explaining that preserving the residential character of the district is a rational basis
for a zoning law); Larsen v. Town of Corte Madera, 104 F.3d 365, 365 (9th Cir. 1996) (affirming
finding based on town’s interest in maintaining the residential character of neighborhoods); Felix v.
Young, 536 F.2d 1126, 1136 (6th Cir. 1976) (finding ordinance to be rationally related to the legitimate
municipal interest of preserving the residential character of urban neighborhoods); Jeffrey O., 511
F.Supp.2d at 1351 (recognizing interest in protecting the residential character of a neighborhood).
The City does not exclude group homes from all residential districts. Group homes are permitted
in other residential areas, and the City has now made certain that group foster homes are expressly
included in the definition of “personal care home,” clarifying that residential districts are in fact open
to them. The City has thus shown that its zoning ordinance furthers a legitimate government interest
in the least discriminatory means possible. Plaintiff has not identified any evidence to the contrary.

20

Accordingly, summary judgment is due to be granted in favor of Defendants as to this claim.

III.

Intentional Discrimination Claim
In addition to his claim of discriminatory effect, Plaintiff also claims that the City, through its

zoning practices and decisions, intentionally discriminated against foster children living in group
homes. The familiar burden-shifting analysis established for employment discrimination cases is also
used to analyze claims of intentional discrimination under the FHA. Bonasera, 342 Fed. Appx. at 584;
RECAP, 294 F.3d at 52; Graoch, 508 F.3d at 371; Secretary, U.S. Dep't Hous. & Urban Dev. ex rel.
Herron v. Blackwell, 908 F.2d 864, 870-71 (11th Cir.1990).
To prove intentional discrimination, “a plaintiff has the burden of showing that the defendants
actually intended or were improperly motivated in their decision to discriminate against persons
protected by the FHA.” Bonasera, 342 Fed. Appx. at 584; Reese, 2009 WL 3762994 at *10; Reese v.
Miami-Dade County, 242 F.Supp.2d 1292, 1301 (S.D. Fla. 2002). Thus, to establish a prima facie case
of intentional discrimination, the plaintiff “must present evidence that animus against the protected
group was a significant factor in the position taken by the municipal decision-makers themselves or by
those to whom the decision-makers were knowingly responsive.” RECAP, 294 F.3d at 49. A plaintiff
may meet this burden by demonstrating that the “decision-making body acted for the sole purpose of
effectuating the desires of private citizens, that [discriminatory] considerations were a motivating factor
behind those desires, and that members of the decision-making body were aware of the motivations of
the private citizens.” Hallmark Dev., 466 F.3d at 1284. The Eleventh Circuit has also recognized four
factors that are instructive in determining whether discriminatory intent is present: “discriminatory or
segregative effect, historical background, the sequence of events leading up to the challenged actions,
21

and whether there were any departures from normal or substantive criteria.” Id.
If the plaintiff is successful in demonstrating a prima facie case of intentional discrimination,
the defendant must come forward with evidence of a legitimate, non-discriminatory reason for its
actions. Housing Investors, 68 F. Supp. 2d at 1300. If the defendant is able to make this showing, the
plaintiff is then required to identify some evidence demonstrating that defendant’s proffered nondiscriminatory reasons are merely pretext and that the intended inhabitant’s protected status was in fact
a motivating factor in the adverse decisions. Id. The plaintiff’s evidence of discriminatory intent need
not show that the protected status of the intended inhabitants was the sole or dominant factor for the
zoning decision; he need only show “that it was a motivating factor.” Id. at 1299.
Here, Plaintiff has failed to identify evidence to support a prima face case of intentional
discrimination under the FHA. As discussed above, Plaintiff offers no concrete evidence to support his
claim of discriminatory impact or segregative effect. He also failed to cite any evidence of intentional
discrimination in the historical background or the sequence of events leading up to the challenged
actions, and he has not shown that there were any departures from normal or substantive criteria. See
Hallmark Dev., 466 F.3d at 1284 (listing factors relevant to finding discriminatory intent).
On summary judgment, Plaintiff merely asserts that intentional discrimination is apparent in this
case because foster children who live in a group home are not allowed in the R-1 Residential District.
Plaintiff further suggests that the City is disingenuous when it claims that the home is properly excluded
from the district because it is a for-profit business rather than a purely residential home. Plaintiff’s
arguments are mere assertions, however, and are not supported by any evidence which would allow a
jury to find intentional discrimination in this case. Plaintiff likewise fails to support his allegation that

22

the City’s segregation of single-family residential homes from commercially operated residential
housing facilities is not a legitimate governmental interest. Plaintiff’s intentional discrimination claim
thus fails as a matter of law, and Defendants are entitled to summary judgment.

CONCLUSION
For all of the above reasons, Plaintiff’s Motion to Alter of Amend Judgment [Doc. 29] is
DENIED, and Defendants’ Motion for Summary Judgment [Doc. 32] is GRANTED. Judgment is to
be entered in favor of Defendants on all claims.

SO ORDERED this 6th day of May, 2011

S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT

jlr

23