239 Conn. 617

DEER HILL ARMS II LIMITED PARTNERSHIP v. PLANNING COMMISSION OF THE CITY OF DANBURY

(15448)

Borden, Berdon, Norcott, Katz and Palmer, Js.

Argued October 1

officially released December 31, 1996

*618James Mulvey, for the appellant (plaintiff).

Daniel E. Casagrande, for the appellee (defendant).

BERDON, J.

The broad issue in this appeal is whether a condition imposed by the defendant planning commission of the city of Danbury that restricts occupancy of units in one of two condominium buildings on a single tract of land to persons fifty-five years of age or older without children violates the prohibition of discrimination based on familial status under the federal Fair Housing Act (act), 42 U.S.C. § 3601 et seq., and is therefore void. For the purposes of this case, this issue is resolved by determining whether the condition qualifies under the act’s “housing for older persons” exemption. 42 U.S.C. § 3607 (b) (2) (C) (1994).1

The plaintiff, Deer Hill Arms II Limited Partnership, brought this action against the defendant, the Danbury *619planning commission,2 for a declaratory judgment seeking to declare invalid a condition of the special exception imposed by the defendant that the occupancy of one of two buildings (Deer Hill Arms II) at the Deer Hill Arms Condominium complex be restricted to persons fifty-five years of age or older without children. The plaintiff asserted that the condition violates the prohibition of discrimination against families with children under the act. The trial court held that Deer Hill Arms II was exempt from the requirements of the act because it qualifies for the “housing for older persons” exemp*620tion provided by the act.3 The plaintiff appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The following facts are not disputed. The real property that is the subject of this litigation is located in Danbury and consists of approximately 2.1 acres (site). In 1973, the defendant granted a special exception and site plan approval for the construction on the site of an unrestricted building consisting of twenty-eight dwelling units (Deer Hill Arms I) and a second building, consisting of thirty-two dwelling units, which was restricted to residents fifty-five years of age or older without children, Deer Hill Arms II,4 pursuant to § 4.3.4 of the zoning regulations of the city of Danbury.5 The legal title to the site was transferred to Deer Hill Arms *621Condominium (condominium). After completion of Deer Hill Aims I, title to the unsold units passed to the Danbury Savings and Loan Association (Danbury Savings). Because the construction did not commence on Deer Hill Arms II, the special exception for those units expired in 1976. In 1982, the defendant approved the application of Danbuiy Savings for a special exception and site plan in order to construct Deer Hill Arms II on the site as an elderly housing facility pursuant to § 4.C.4 of the 1981 zoning regulations of the city of Danbury. Section 4.C.4 is identical in all pertinent respects to the 1973 regulation, § 4.3.4, in that it restricted housing to “persons fifty-five (55) and above, without children.”6 In granting the special exception for Deer Hill Arms II, the defendant considered that both Deer Hill Arms I and II were to be located on the site under the ownership of the condominium.7 The plaintiff took title to Deer Hill Arms II in 1987 and, in 1989, constructed those units authorized by the 1982 special exception granted by the defendant to Danbury Savings.

In 1990, the plaintiff informed the defendant that, in its opinion, the requirement that Deer Hill Arms II be *622occupied only by persons fifty-five years of age or older without children violated the act, thereby rendering the condition null and void. The plaintiff also advised the defendant that it intended to sell units in Deer Hill Arms II without regard to the condition of the special permit. Thereafter, the plaintiff brought this action for a declaratory judgment.

Enacted by Congress as Title VIII of the Civil Rights Act of 1968, the act was designed to establish a national policy against discrimination in housing based upon race, color, religion, or national origin. See Civil Rights Act of 1968, Pub. L. No. 90-284, tit. VIII, §§ 801-819, 82 Stat. 81 (codified as amended at 42 U.S.C. § 3601 et seq.); Elliott v. Athens, 960 F.2d 975, 978 (11th Cir.), cert. denied, 506 U.S. 940, 113 S. Ct. 376, 121 L. Ed. 2d 287 (1992). Subsequently, Congress amended the act in 1974 to prohibit discrimination based upon sex. See Housing and Community Development Act of 1974, Pub. L. No. 93-383, tit. VIII, § 808 (b), 88 Stat. 633 (codified at 42 U.S.C. § 3604 [a]). Effective March 2,1989, Congress extended coverage of the act to prohibit discrimination based upon “familial status.” See Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, § 5, 102 Stat. 1619 (codified at 42 U.S.C. § 3602 [k]). Section 3602 (k) (1) of the act defines familial status as one or more individuals, who have not attained the age of eighteen, being domiciled with a parent or other person having legal custody of such minor.8 If there were nothing *623more, the condition of the special exception for Deer Hill Arms II would be void as violating provisions of the act prohibiting discrimination based upon familial status. See Edmonds v. Oxford House, Inc., 514 U.S. 725, 731, 115 S. Ct. 1776, 131 L. Ed. 2d 801 (1995) (acknowledging act’s stated policy “ ‘to provide, within constitutional limitations, for fair housing throughout the United States’ ”); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211-12, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972) (holding that act should be afforded “generous construction” in order to carry out “ ‘policy that Congress considered to be of the highest priority’ ”).

Nevertheless, as the defendant argues and as the trial court concluded, Deer Hill Arms II falls within an exception to the act. Title 42 of the United States Code, § 3607 (b) excepts “housing for older persons” from the prohibition against discrimination based upon familial status. Housing for older persons is specifically defined to include housing: “(C) intended and operated for occupancy by at least one person 55 years of age or older per unit. In determining whether housing qualifies as housing for older persons under this subsection, the Secretary shall develop regulations which require at least the following factors: (i) the existence of significant facilities and services specifically designed to meet the physical or social needs of older persons, or if the provision of such facilities and services is not practicable, that such housing is necessary to provide important housing opportunities for older persons; and (ii) that at least 80 percent of the units are occupied by at least one person 55 years of age or older per unit; and (iii) the publication of, and adherence to, policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older.” 42 U.S.C. § 3607 (b) (2) (C) (1994).9

*624Although the trial court addressed the significant facilities and services10 and the publication and adherence prongs of 42 U.S.C. § 3607 (b) (2) (c), the parties agree that the only relevant issue that they addressed before the trial court was whether at least 80 percent of the units are intended to be occupied by at least one person fifty-five years of age or older per unit. The answer to this part of the three part test set forth in § 3607 (b) (2) (C) is determinative of the issue in this case.11

*625If Deer Hill Arms I and II are treated as a single entity for the purposes of determining the percentage of the units that are “intended to be operated” for persons fifty-five years of age and older, this part of the exception would not be satisfied. Only 51 percent of the units would be intended to be occupied by those persons if the thirty-two units in Deer Hill Arms II are compared to the total of sixty units in Deer Hill Arms I and II. If, however, Deer Hill Arms I and II are considered to be separate entities for the purposes of the act, then 100 percent of the units in Deer Hill Arms II would be intended to be occupied by persons fifty-five years of age and older and the exemption for older persons would apply in this case. The trial court concluded that Deer Hill Arms I and II were, in fact, separate entities for the purposes of the act. We agree.

We recognize that “[e]xemptions from the Fair Housing Act are to be construed narrowly, in recognition of the important goal of preventing housing discrimination.” Massaro v. Mainlands Section 1 & 2 Civic Assn., Inc., 3 F.3d 1472, 1475 (11th Cir. 1993), cert. denied, 513 U.S. 808, 115 S. Ct. 56, 130 L. Ed. 2d 15 (1994); see Elliott v. Athens, supra, 960 F.2d 979 (noting exemptions contained in act are to be construed narrowly). Nevertheless, the legislative history is replete with expressions of congressional concern on protecting choice of living in housing of older persons with respect to their age and interests.12 Accordingly, a flexible fact *626specific inquiry must be made to determine whether the exemption is applicable so that these legislative goals may be achieved. Massaro v. Mainlands Section 1 & 2 Civic Assn., Inc., 796 F. Sup. 1499, 1501 (S.D. Fla. 1992), rev’d on other grounds, 3 F.3d 1472 (11th Cir. 1993), cert. denied, U.S. , 115 S. Ct. 56, 130 L. Ed. 2d 15 (1994); Seniors Civil Liberties Assn., Inc. v. Kemp, 761 F. Sup. 1528, 1553 (M.D. Fla. 1991), aff'd, 965 F.2d 1030 (11th Cir. 1992).

There is no dispute that the title to the land upon which Deer Hill Arms I and II were constructed — that is, the site — is in the name of “Deer Hill Arms Condominium.” Other than the legal title to the land and a common driveway, Deer Hill Arms I and II are separate communities, controlled by, and operated as, separate entities. Deer Hill Arms I was constructed in 1976 and Deer Hill Arms II in 1989. Indeed, certain unit holders *627appealed from the 1982 decision of the defendant to grant Danbury Savings the special exception to construct Deer Hill Arms II.13 The plaintiff was able to construct Deer Hill Arms II only by taking advantage of the special exception granted to Danbury Savings. The plaintiff marketed Deer Hill Arms II as a “unique innovation one-of-a-kind condominium catering to the discriminating buyer 55 years of age and older.” More importantly, Deer Hill Arms II assesses its own unit owner common charges to maintain those units and has its own checking account from which the common expenses for Deer Hill Arms II for landscaping, garbage removal, utilities, common maintenance, snow removal and other such common charges are paid. Unit owners of Deer Hill Arms II do not contribute to the operating expenses of Deer Hill Arms I, nor do the unit owners of Deer Hill Arms II contribute to the expenses of Deer Hill Arms I. Occupants of Deer Hill Arms I do not have access to the common areas of Deer Hill Arms II, nor do the occupants of Deer Hill Arms II have access to those of Deer Hill Arms I. The plaintiff does not own or control any of the units in Deer Hill Arms I. No evidence was presented as to the entity that collects the common charges and pays the related expenses of Deer Hill Arms I. With respect to the condominium, there was no evidence that it functioned in any manner with respect to Deer Hill Arms I or II other than as the conduit for legal title to the land for both. In short, Deer Hill Arms I and II are separate and distinct communities for the purposes of the act.14

*628The trial court was correct in concluding that Deer Hill Arms II is a separate entity and, therefore, that 100 percent of its emits are intended for persons fifty-five years of age or older, satisfying that part of the housing for older persons exemption. “The conclusions reached by the trial court must stand unless they are legally and logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law.” (Internal quotation marks omitted.) Newbury Common Ltd. Partnership v. Stamford, 226 Conn. 92, 100, 626 A.2d 1292 (1993).

In reaching our conclusion in this case, we emphasize that a fact specific inquiry governs our analysis. We recognize that a different result would have been reached had the original developer established two separate buildings, one with occupancy restricted to persons fifty-five years of age or older and the other without restriction, but with a common condominium association acting as the sole decision maker.15 We emphasize that our decision today in no way authorizes developers to establish occupancy restrictions in different buildings in one housing community in an attempt to thwart the purposes of the act.

The judgment is affirmed.

In this opinion the other justices concurred.

Deer Hill Arms II Ltd. Partnership v. Planning Commission
239 Conn. 617

Case Details

Name
Deer Hill Arms II Ltd. Partnership v. Planning Commission
Decision Date
Dec 31, 1996
Citations

239 Conn. 617

Jurisdiction
Connecticut

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