Extracted text (via pymupdf)
36246 characters
July 26, 2023 TA2023002 Page 1 of 3 Report to the Board of Supervisors Prepared by the Maricopa County Planning and Development Department Board Hearing Date: July 26, 2023 Case #/Title: TA2023002 – ADA Accommodation for Senior Citizen Overlay Zoning Districts Supervisor District: All Applicant: Staff-initiated Request: Amend Chapter 10, Section 1006 – Senior Citizen Overlay Zoning District to allow for an age-restriction exception specific to disabled individuals. EROP: This item is being processed via an abbreviated Enhanced Regulatory Outreach Program (EROP) process as an emergency measure in order to bring the ordinance into alignment with federal law related to the Fair Housing Act (FHA) and the Americans with Disability Act (ADA). Per County Policy A1518, the Board of Supervisors may adopt regulations or ordinances without complying with the EROP procedures if it makes a finding of an emergency requiring the adoption of the regulation and ordinance and records the nature of the emergency and the reason for the adoption in its minutes. This text amendment has been posted on the County’s EROP site. Staff sent notification of the text amendment to EROP registrants (over 3,000) and to various agencies and HOAs. Municipal Comments: None received to date Support/Opposition: None received to date Additional Comments: Staff made no changes to the text amendment presented to the Commission. At this time, there is no known opposition to TA2023002. Commission Recommendation: On 6/08/23, the Commission voted 7-0 to adopt a motion recommending the Board of Supervisors approve TA2023002 as presented by staff: SECTION 1006. SC (Senior Citizen)*1 July 26, 2023 TA2023002 Page 2 of 3 ARTICLE 1006.1. PURPOSE: The SC (Senior Citizen Overlay) Zoning District is intended to provide for planned residential development, designed specifically for residency by persons of advanced age. ARTICLE 1006.2. USE REGULATIONS: 1. The SC (Senior Citizen Overlay) Zoning District is an overlay zone and shall be combined with any rural or residential zoning district and not with any other zoning district, (e.g., Rural-190 (SC), R1-35 (SC), R-5 (SC), etc.). 2. The regulations which apply to property in any zone with which the SC Zoning District is combined shall remain the same, except as to the matters specified in this Section. This Section shall apply in lieu of or in addition to and shall supersede the corresponding regulations of such zone with which the SC Zoning District is combined. 3. Temporary use for underage occupancy. Continued occupancy in this district in the dwelling unit by an underage spouse, because of the death or long term medical relocation of the spouse meeting the age requirement, shall be exempt from this provision. This exemption shall continue only so long as the remaining spouse maintains a sole occupant status. Upon change from a sole occupant status, the age requirements of this district for occupancy shall be met. Otherwise, a Temporary Use Permit for underage occupancy shall be required for occupancy of any underage person beyond the 90 days permitted in Article 1006.6.1. *3 ARTICLE 1006.3. HEIGHT REGULATIONS: No building shall be constructed that exceeds two stories in height, unless it contains elevators for the use of the occupants. ARTICLE 1006.4. INTENSITY OF USE REGULATIONS: The Senior Citizen Overlay Zoning District shall only be established on parcels of five or more contiguous acres which may include existing or proposed subdivided lots and public or private rights-of-way and easements. ARTICLE 1006.5. PARKING REGULATIONS: The required parking spaces as delineated in the underlying zoning district shall be located within 200 feet of the unit it is to serve. ARTICLE 1006.6. ADDITIONAL REGULATIONS: **3 1. Each dwelling unit, if occupied, shall be occupied by at least one person not less than 55 years of age and no person 18 years of July 26, 2023 TA2023002 Page 3 of 3 age or under shall reside in any dwelling unit for a period of time exceeding 90 days. *2, *3 2. Age restrictions listed in Article 1006.6.1 above shall not apply to any resident who is a qualified individual with disabilities per the definition of disability in Chapter 2. 2.3. The following criteria shall be met and maintained for each planned residential development: *3, *4 a. At least 80% of the dwelling units shall be occupied by at least one person 55 years of age or older per unit. b. Policies and procedures which demonstrate an intent to provide housing for persons 55 years of age or older shall be published and adhered to. c. It is the responsibility of the residents and/or owners of properties to provide evidence that the above criteria are met and will be maintained. (NOTE: The above criteria are based on the requirements contained in Section 100.304 of the Rules and Regulations for implementation of the Federal Fair Housing Amendment Act of 1988). ARTICLE 1006.7. PUBLIC HEARING NOTICE AND PROCEDURE: The use and application of this Overlay Zoning District shall be consistent with all other zoning districts in this Ordinance. Notice and procedure for public hearing shall conform to the procedures prescribed in Chapter 3, Section 304. hereof. Date of Revisions *1 Added 5-30-79 **3 Revised 2-20-94 *2 Revised/Effective 8-10-89 *4 Revised 6-5-96 *3 Added 2-20-94 *5 Revised X-X-XX Presented by: Adam Cannon, AICP, Senior Planner Reviewed by: Darren Gérard, AICP, Planning Manager Attachment: 6/08/23 P&Z Packet (11 pages) Note: 6/08/23 Draft P&Z Minutes are not available as of the writing of this report, but can be provided upon request later when available. TA2023002 Page 1 of 4 Report to the Planning and Zoning Commission Prepared by the Maricopa County Planning and Development Department Case: TA2023002 – ADA Accommodation for Senior Citizen Overlay Zoning Districts Hearing Date: June 8, 2023 Supervisor Districts: All Applicant: Staff-initiated Request: Amend Chapter 10, Section 1006 – Senior Citizen Overlay Zoning District to allow for an age-restriction exception specific to disabled individuals. Support/Opposition: None known Recommendation: Initiate and recommend Approval Proposed Amendment: Proposed verbatim language is noted below in legislative edit format. SECTION 1006. SC (Senior Citizen)*1 ARTICLE 1006.1. PURPOSE: The SC (Senior Citizen Overlay) Zoning District is intended to provide for planned residential development, designed specifically for residency by persons of advanced age. ARTICLE 1006.2. USE REGULATIONS: 1. The SC (Senior Citizen Overlay) Zoning District is an overlay zone and shall be combined with any rural or residential zoning district and not with any other zoning district, (e.g., Rural-190 (SC), R1-35 (SC), R-5 (SC), etc.). 2. The regulations which apply to property in any zone with which the SC Zoning District is combined shall remain the same, except as to the matters specified in this Section. This Section shall apply in lieu of or in addition to and shall supersede the corresponding regulations of such zone with which the SC Zoning District is combined. 3. Temporary use for underage occupancy. Continued occupancy in this district in the dwelling unit by an underage spouse, because of the death or long term medical relocation of the spouse meeting the age requirement, shall be exempt from this provision. This exemption shall continue only so long as the remaining spouse maintains a sole TA2023002 Page 2 of 4 occupant status. Upon change from a sole occupant status, the age requirements of this district for occupancy shall be met. Otherwise, a Temporary Use Permit for underage occupancy shall be required for occupancy of any underage person beyond the 90 days permitted in Article 1006.6.1. *3 ARTICLE 1006.3. HEIGHT REGULATIONS: No building shall be constructed that exceeds two stories in height, unless it contains elevators for the use of the occupants. ARTICLE 1006.4. INTENSITY OF USE REGULATIONS: The Senior Citizen Overlay Zoning District shall only be established on parcels of five or more contiguous acres which may include existing or proposed subdivided lots and public or private rights-of-way and easements. ARTICLE 1006.5. PARKING REGULATIONS: The required parking spaces as delineated in the underlying zoning district shall be located within 200 feet of the unit it is to serve. ARTICLE 1006.6. ADDITIONAL REGULATIONS: **3 1. Each dwelling unit, if occupied, shall be occupied by at least one person not less than 55 years of age and no person 18 years of age or under shall reside in any dwelling unit for a period of time exceeding 90 days. *2, *3 2. Age restrictions listed in Article 1006.6.1 above shall not apply to any resident who is a qualified individual with disabilities per the definition of disability in Chapter 2. 2.3. The following criteria shall be met and maintained for each planned residential development: *3, *4 a. At least 80% of the dwelling units shall be occupied by at least one person 55 years of age or older per unit. b. Policies and procedures which demonstrate an intent to provide housing for persons 55 years of age or older shall be published and adhered to. c. It is the responsibility of the residents and/or owners of properties to provide evidence that the above criteria are met and will be maintained. (NOTE: The above criteria are based on the requirements contained in Section 100.304 of the Rules and Regulations for implementation of the Federal Fair Housing Amendment Act of 1988). TA2023002 Page 3 of 4 ARTICLE 1006.7. PUBLIC HEARING NOTICE AND PROCEDURE: The use and application of this Overlay Zoning District shall be consistent with all other zoning districts in this Ordinance. Notice and procedure for public hearing shall conform to the procedures prescribed in Chapter 3, Section 304. hereof. Date of Revisions *1 Added 5-30-79 **3 Revised 2-20-94 *2 Revised/Effective 8-10-89 *4 Revised 6-5-96 *3 Added 2-20-94 *5 Revised X-X-XX Public Participation: 1. TA2023002 is processed via an abbreviated Enhanced Regulatory Outreach Program (EROP) process as an emergency measure in order to bring the ordinance into alignment with federal law related to the Fair Housing Act (FHA) and the Americans with Disability Act (ADA). Per County Policy A1518, the Board of Supervisors may adopt regulations or ordinances without complying with the EROP procedures if it makes a finding of an emergency requiring the adoption of the regulation and ordinance and records the nature of the emergency and the reason for the adoption in its minutes. This text amendment has been posted on the County’s EROP site and is being heard by the P&Z Commission for a recommendation to the Board of Supervisors. Staff sent notification of the text amendment to EROP registrants (over 3,000) and to various agencies and HOAs. To date, Staff has received no comments in support or in opposition for the amendment. Staff Analysis: 2. The FHA prohibits discrimination in housing for several protected classes, including age and disability. However, a 1988 amendment to the Act in 42 USC 3607 allowed an exemption for “housing for older persons”. Under this exemption, the FHA permits the establishment of two types of age-restricted communities, including one exclusively for individuals aged sixty-two (62) or older and another where 80% of the occupied units must be occupied by at least one individual who is fifty-five (55) or older. The latter community is required to enforce the age restrictions by publishing its age-restricted policy and by requiring verification through affidavits and surveys. Chapter 11-811.A.4 of Arizona Revised Statutes (ARS) permits counties to establish retirement communities through zoning. Likewise, Chapter 10, Section 1006 of the Maricopa County Zoning Ordinance, regarding the Senior Citizens Overlay Zoning District (SC), requires that a dwelling is occupied by at least one individual who is fifty-five (55) or older. Only through the approval of a Temporary Use Permit (TUP) may individuals eighteen (18) and under reside in any dwelling for more than 90 days. However, county counsel has advised staff that an exception for disabled minors is necessary in order to meet requirements of the Americans with Disabilities Act (ADA). Counsel and staff believe that the proposed language of this text amendment meets this requirement. 3. At issue is the concept of an exception versus a reasonable accommodation. The TUP is a process designed to grant an exception to allow an underage occupant to dwell in an age- restricted community. Under the ADA, this would not be a reasonable accommodation due to the potential for denial, public process and associated fees. Past court rulings have upheld the necessity of reasonable accommodation, and counsel and staff agree that this amendment will align our requirements with the ADA. TA2023002 Page 4 of 4 4. From a zoning perspective, staff and counsel recommend an accommodation that fully exempts disabled individuals from the TUP process associated with an SC Overlay. Title II of the ADA prohibits discrimination based upon disability by public entities. Further, 28 CFR § 35.130.7(i) states “a public entity shall make reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability…”. Staff notes that neither an amendment to the ordinance nor the court opinion prevents HOAs of a senior citizen community from reviewing individual cases and making a reasonable accommodation determination to their CC&Rs. In fact, that is already how enforcement (via CC&Rs) occurs in age- restricted communities not subject to SC zoning. Recommendation: 5. Staff recommends the Commission adopt a motion to initiate TA2023002 and to recommend that the Board of Supervisors approve TA2023002. Presented by: Adam Cannon, AICP, Senior Planner Reviewed by: Matthew Holm, AICP, Planning Supervisor Attachments: Canady v. Prescott Canyon Estates Homeowners Association (2002) (7 pages) (https://lp.findlaw.com/) FINDLAW (HTTPS://LP.FINDLAW.COM/) CASELAW (HTTPS://CASELAW.FINDLAW.COM/) ARIZONA (HTTPS://CASELAW.FINDLAW.COM/COURTS/ARIZONA) AZ CT. APP. (HTTPS://CASELAW.FINDLAW.COM/COURT/AZ-COURT-OF-APPEALS) CANADY V. PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION Reset A A Font size: Print CANADY v. PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION Court of Appeals of Arizona,Division 1, Department D. Scott CANADY, an unmarried individual, Ralph and Margaret Canady, husband and wife, and Pamela Garapich, an unmarried individual, Intervening Plaintiffs- Appellants, v. PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION, Prescott Canyon Estates Homeowners Association Board of Directors, and Don Larson, President, Defendants-Appellees. No. 1 CA-CV 02-0138. Decided: November 26, 2002 Arizona Center for Disability Law, By JulianneH. Carter, Phoenix, Attorneys for Appellants. James A. Simmons, Prescott, Attorney for Appellees. OPINION ¶ 1 Prescott Canyon Estates Homeowners Association, its board of directors and its president (collectively “Association”) refused to waive their community's minimum-age requirement so that a disabled person of less than that minimum age of 35 years, could reside with his parents. The trial court granted summary judgment in favor of the Association, ruling that the age restriction was lawful and did not discriminate based on disability. For the reasons discussed below, we disagree, and accordingly reverse and remand for entry of judgment in favor of Ralph, Margaret and Scott Canady, and Pamela Garapich, and for such further proceedings as are necessary. BACKGROUND Search FindLaw Cases & Codes (https://caselaw.findlaw.com/) Practice Management (https://practice.findla / / / / Í Page 1 of 7 CANADY v. PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION | Fin... 07/31/2020 https://caselaw.findlaw.com/az-court-of-appeals/1314991.html ¶ 2 Prescott Canyon Estates (“Estates”) is a residential community that requires at least one person fifty-five years of age or older to reside in each unit. In September 1999, Ralph and Margaret Canady, who met this age restriction, entered an agreement to buy an Estates home owned by Pamela Garapich. The Canadys' twenty-six-year-old son, Scott, who is severely developmentally disabled, lived with them because of his disability. ¶ 3 The Estates's covenants, conditions and restrictions (“CC & Rs”) provide that no person less than the age of thirty-five years may reside in the community. Accordingly, when the president of the Association learned of the purchase agreement between the Canadys and Garapich, he informed Garapich that a person younger than thirty-five years could not live in the subdivision and that the restriction could not be amended or waived by the Association. ¶ 4 The Canadys and Garapich cancelled the sale, but they filed housing discrimination complaints against the Estates with the Arizona Attorney General's Office. An Assistant Attorney General concluded that there was reasonable cause to believe that the Association had unlawfully discriminated against the Canadys when it denied them the opportunity to purchase an Estates home due to their son's condition. Ariz.Rev.Stat. (“A.R.S.”) § 41- 1491.19 (1999). The State then brought this action against the Association, alleging that it had engaged in unlawful housing discrimination against a disabled person by failing to make a reasonable accommodation to allow Scott to live in an Estates home with his parents. The trial court allowed the Canadys and Garapich to intervene as plaintiffs. ¶ 5 The parties filed cross-motions for summary judgment based on a joint statement of stipulated facts. The trial court granted judgment in favor of the Association, finding the Estates's age restrictions to be a sanctioned form of discrimination. Although it acknowledged that the state and federal fair housing acts “require providers of housing to reasonably accommodate those with disabilities to allow them to enjoy housing on an equal basis with others,” the court concluded that the Association's actions did not constitute a failure to reasonably accommodate Scott's needs because the purpose of the Estates's age restriction was lawful and did not discriminate based on disability. It further concluded that there was no disparate impact on persons with disabilities and that granting the relief requested would impede the Association's ability to protect the rights of the Estates's older residents. ¶ 6 The Canadys and Garapich appealed. In reviewing a summary judgment in a case such as this one in which there are no disputed material facts, we independently review the trial court's application of the law. Sherman v. First Am. Title Ins. Co., 201 Ariz. 564, 566 ¶ 2, 38 P.3d 1229, 1231 (App.2002). ANALYSIS ¶ 7 Pursuant to the federal Fair Housing Act of 1988, 42 U.S.C. § 3604(f)(1) (2000), it is unlawful [t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of- (A) that buyer or renter; (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or Page 2 of 7 CANADY v. PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION | Fin... 07/31/2020 https://caselaw.findlaw.com/az-court-of-appeals/1314991.html (C) any person associated with that buyer or renter. Discrimination includes “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). Similar provisions appear in Arizona's Fair Housing Act. A.R.S. § 41-1491.19(A), (D)(2) (1992). In addition, the Arizona Developmental Disabilities Act prohibits discrimination in housing based on developmental disability. A.R.S. § 36-551.01 (Supp.2001). See Westwood Homeowners Ass'n v. Tenhoff, 155 Ariz. 229, 236-37, 745 P.2d 976, 983-84 (App.1987)(restrictive covenant prohibiting residential facility for disabled individuals contrary to public policy established by Arizona Developmental Disabilities Act). ¶ 8 “Housing for older persons” is exempt from the familial status anti-discrimination provisions in both the federal and state Fair Housing Acts. 42 U.S.C. § 3607(b) (2000); A.R.S. § 41-1491.04 (1999). Housing qualifies as “housing for older persons” if it is intended and operated for occupancy by persons 55 years of age or older, and (i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older; (ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the [requisite] intent ․; and (iii) the housing facility or community complies with rules issued ․ for verification of occupancy. 42 U.S.C. § 3607(b)(2)(C); see 24 C.F.R. § 100.305. There are similar provisions in the Arizona statute. A.R.S. § 41-1491.04(B). Neither the federal nor the state Act exempts housing for older persons from the provisions prohibiting discrimination against disabled persons. ¶ 9 The federal Fair Housing Act is “a broad mandate to eliminate discrimination against and equalize housing opportunities for disabled individuals.” Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir.1995). Because it is “a broad remedial statute,” its provisions are to be generously construed and “its exemptions must be read narrowly.” City of Edmonds, 18 F.3d at 804. See Massaro v. Mainlands Section 1 & 2 Civic Ass'n, 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)(“Exemptions from the Fair Housing Act are to be construed narrowly, in recognition of the important goal of preventing housing discrimination.”). We thus consider whether the Association failed to make a reasonable accommodation for Scott “in rules, policies, practices or services if the accommodations may be necessary to afford the person equal opportunity to use and enjoy a dwelling.” A.R.S. § 41-1491.19(D)(2). See 42 U.S.C. § 3604(f)(3)(B). ¶ 10 The federal Fair Housing Act imposes an affirmative duty to reasonably accommodate disabled persons. City of Edmonds, 18 F.3d at 806. To reasonably accommodate a disabled person, an individual or group may have to make an affirmative change in an otherwise valid policy, and so a reasonable accommodation may involve “changing some rule that is generally applicable so as to make its burden less onerous on the handicapped individual.” Bangerter v. Orem City Corp., 46 F.3d 1491, 1501-02 (10th Cir.1995)(quoting Oxford House, Inc. v. Township of Cherry Hill, 799 F.Supp. 450, 462 n. 25 (D.N.J.1992)). A facially neutral requirement that affects disabled and non-disabled individuals alike 1 2 3 4 Page 3 of 7 CANADY v. PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION | Fin... 07/31/2020 https://caselaw.findlaw.com/az-court-of-appeals/1314991.html implicates the reasonable accommodation section of the Act when it prevents a disabled individual from gaining access to proposed housing. Hill v. Cmty. of Damien of Molokai, 121 N.M. 353, 911 P.2d 861, 875-76 ¶ 45-46 (1996). The legislative history of 42 U.S.C. § 3604(f)(3)(B) suggests that [t]he concept of “reasonable accommodation” has a long history in regulations and case law dealing with discrimination on the basis of handicap. A discriminatory rule, policy, practice or service is not defensible simply because that is the manner in which such rule or practice has traditionally been constituted. This section would require that changes be made to such traditional rules or practices if necessary to permit a person with handicaps an equal opportunity to use and enjoy a dwelling. Shapiro, 51 F.3d at 333 (quoting H.R.Rep. No. 711 (1978), reprinted in 1988 U.S.C.C.A.N. 2186 (footnotes omitted)). “One of the purposes behind the reasonable accommodation provision is to address individual needs and respond to individual circumstances.” Horizon House Dev. Serv., Inc. v. Township of Upper Southampton, 804 F.Supp. 683, 699 (E.D.Pa.1992), aff'd, 995 F.2d 217 (3rd Cir.1993). ¶ 11 The reasonable accommodation requirement has been applied to zoning ordinances and other land use regulations and practices. Oxford House, Inc. v. Town of Babylon, 819 F.Supp. 1179, 1186 (E.D.N.Y.1993)(cases cited). One example of a reasonable accommodation is to simply not enforce a restrictive covenant that operates to prevent a disabled person from living in a community. See Martin v. Constance, 843 F.Supp. 1321, 1326 (E.D.Mo.1994)( “Even if there was a consistent policy and practice of enforcing the restrictive covenant against perceived violations, the Court finds that under the facts of this case the attempt to enforce the covenant constituted a refusal to make a ‘reasonable accommodation’ necessary to afford plaintiffs an equal opportunity to use and enjoy a dwelling.”); accord Hill, 911 P.2d at 876. ¶ 12 Equal opportunity gives handicapped individuals the right to choose to live in neighborhoods of their choice because that right serves to end their exclusion from mainstream society. Smith & Lee Assoc., Inc. v. City of Taylor, 102 F.3d 781, 794-95 (6th Cir.1996). To succeed with their claim, aggrieved parties must show that, without an accommodation, “they likely will be denied an equal opportunity to enjoy the housing of their choice.” Id. at 795. See Bronk, 54 F.3d at 429 (“concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability”). Additionally, the accommodation must be reasonable, but an accommodation is reasonable unless it requires “ ‘a fundamental alteration in the nature of a program’ or imposes ‘undue financial and administrative burdens.’ ” Smith & Lee, 102 F.3d at 795 (quoting Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 410, 412, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979)). ¶ 13 The Association argues that it is not a reasonable accommodation to allow a person younger than the age of thirty-five years to live at the Estates because it would fundamentally alter the nature of its community. We reject this argument in conjunction with the Association's next contention. ¶ 14 The Association insists that the Estates would jeopardize its status as “housing for older persons” if it fails to uniformly enforce its CC & Rs by allowing Scott to live with his parents in an Estates home. First, allowing Scott to live with his parents in an Estates home would not have any impact on the statutory requirement that at least eighty percent of Page 4 of 7 CANADY v. PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION | Fin... 07/31/2020 https://caselaw.findlaw.com/az-court-of-appeals/1314991.html the occupied units be occupied by at least one person who is fifty-five years of age or older, see 42 U.S.C. § 3607(b)(2)(C), because at least one of the senior Canadys was fifty-five years of age or older. Thus, the Canady household would be counted in the required eighty percent of units occupied by someone at least fifty-five years old even if twenty-six-year-old Scott lived in the household. ¶ 15 Second, allowing Scott to live with his parents in a home in the Estates would not indicate that the Association had failed to publish and adhere to policies and procedures that demonstrate the intent that the Estates be housing for older persons. See 42 U.S.C. § 3607(b)(2)(C)(ii). By enabling Scott to live with his parents in order to avoid violating the Fair Housing Acts, the Association would not be abandoning its purpose for the community but, rather, would be acceding to compliance with federal and state laws. Such a “concession” to the law could hardly be interpreted as an intent to relinquish its status as “housing for older persons.” ¶ 16 Finally, the Association argues that allowing Scott to live with his parents in an Estates home would open their community to a “flood” of other persons younger than the age of thirty-five desiring to live in the Estates. However, reasonable accommodations vary depending on the facts of each case. City of Edmonds, 18 F.3d at 806. What is reasonable in a particular circumstance is a “fact-intensive, case-specific determination.” Janush v. Charities Housing Dev. Corp., 169 F.Supp.2d 1133, 1136 (N.D.Cal.2000). Thus, the Association's concern is unfounded. Indeed, the Act allows the Association to consider each request individually and to grant only those requests that are reasonable. See id. at 1136-37. Presumably, only a narrow group of persons would be entitled to the limited exception to the CC & Rs required by young persons who are disabled and whose disability requires housing with a person who is older than fifty-five years of age. See Majors v. Housing Auth. of DeKalb County Georgia, 652 F.2d 454, 458 (5th Cir.1981)(even if “no pet” rule reasonable, reasonable inference that housing authority could make limited exception for narrow group of disabled persons who require canine companionship). ATTORNEYS' FEES ¶ 17 The Canadys and Garapich request an award of their costs and attorneys' fees incurred in both this court and the trial court pursuant to A.R.S. § 41-1491.36 (1999). Section 41-1491.36 provides that a court in a fair housing action “shall award reasonable attorney fees and costs to a prevailing plaintiff.” Accordingly, we grant the Canadys and Garapich their costs and attorneys' fees incurred in this appeal; the amount will be determined once they comply with Arizona Rule of Civil Appellate Procedure 21. Upon remand, they may apply for an award of fees in the trial court for attorneys' fees and costs incurred in that court. CONCLUSION ¶ 18 In summary, we find that the Association violated the fair housing laws by failing to make a reasonable accommodation for Scott. We therefore reverse the judgment in favor of the Association and remand for entry of judgment in favor of the Canadys and Garapich plus such further proceedings as are necessary to determine an appropriate award of costs and attorneys' fees to the prevailing parties. FOOTNOTES 5 Page 5 of 7 CANADY v. PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION | Fin... 07/31/2020 https://caselaw.findlaw.com/az-court-of-appeals/1314991.html 1. The concept of reasonable accommodation was borrowed from section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794. City of Edmonds v. Washington State Bldg.Code Council, 18 F.3d 802, 806 (9th Cir.1994) (citing 1988 U.S.C.C.A.N. 2186), aff'd, 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 334 (2d Cir.1995). 2. Both Acts prohibit housing discrimination on the basis of familial status, defined in part as one or more individuals younger than the age of eighteen years domiciled with a parent or another person having legal custody of the minor or minors. 42 U.S.C. §§ 3602 (k)(2000)(definition), 3604(a)-(e)(prohibition against discrimination based on familial status); A.R.S. §§ 41-1491.01(definition), 41-1491.14 (1999)(discrimination prohibition). 3. Because the provisions of Arizona's Fair Housing Act involved in this appeal are virtually identical to those provisions of the federal Act, federal case authority is persuasive in interpreting Arizona's statute. Cf. Div. of Occupational Safety & Health of Indus. Comm'n of Arizona v. Chuck Westenburg Concrete Contractors, Inc., 193 Ariz. 260, 267 ¶ 28, 972 P.2d 244, 251 (App.1998) (recognizing that federal case law is persuasive in interpreting Arizona's occupational safety and health statutes); Francini v. Phoenix Newspapers, Inc., 188 Ariz. 576, 582, 937 P.2d 1382, 1388 (App.1996)(stating that, because Arizona's civil rights laws are modeled after federal laws, federal case law is persuasive in applying the Arizona statutes). 4. An aggrieved party alleging violations of 42 U.S.C. § 3604(f) may proceed under any or all of three theories: disparate treatment, disparate impact and failure to make reasonable accommodation. Smith & Lee Assoc., Inc. v. City of Taylor, 102 F.3d 781, 790 (6th Cir.1996). Because we decide this case based on the Association's failure to reasonably accommodate Scott, we decline to reach the disparate impact issue otherwise raised. 5. Indeed, we can posit the situation of a member of an Estates household of age fifty- five years or older with a spouse of an age younger than thirty-five years. EHRLICH, Judge. CONCURRING: WILLIAM F. GARBARINO, Presiding Judge and JON W. THOMPSON, Judge. Research Cases & Codes (https://caselaw.findlaw.com/) Opinion Summaries (https://caselaw.findlaw.com/summary.html) Sample Business Contracts (https://corporate.findlaw.com/contracts/) Research An Attorney or Law Firm (https://lawyers.findlaw.com/) Forms (https://forms.lp.findlaw.com/) Reference (https://reference.findlaw.com/) Legal Commentary (https://supreme.findlaw.com/legal- commentary.html) Social Facebook (https://www.facebook.com/FindLawConsumers) YouTube (https://www.youtube.com/watch?v=WQiNbzazOhw) Twitter (https://twitter.com/findlawconsumer) Pinterest (https://pinterest.com/findlawconsumer/) Newsletters (https://newsletters.findlaw.com/) Law Firm Marketing BACK TO TOP Page 6 of 7 CANADY v. PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION | Fin... 07/31/2020 https://caselaw.findlaw.com/az-court-of-appeals/1314991.html Practice Law Technology (https://technology.findlaw.com/) Law Practice Management (https://practice.findlaw.com/) Law Firm Marketing Services (https://www.lawyermarketing.com) Corporate Counsel (https://corporate.findlaw.com/) JusticeMail (http://www.justice.com) Jobs & Careers (https://careers.findlaw.com/) About Us Company History (https://www.findlaw.com/company/company- history/findlaw-corporate-information-press-company-background.html) Who We Are (https://www.findlaw.com/company/company- history/findlaw-com-about-us.html) Privacy (https://www.thomsonreuters.com/en/privacy-statement.html) Terms (https://www.findlaw.com/company/findlaw-terms-of- service.html) Disclaimer (https://www.findlaw.com/company/disclaimer.html) Advertising (https://www.findlaw.com/company/media-kit.html) Jobs (https://www.findlaw.com/company/employment/employment.html) Cookies (//info.evidon.com/pub_info/15540?v=1&nt=0&nw=false) Do Not Sell My Info (https://privacyportal- cdn.onetrust.com/dsarwebform/dbf5ae8a-0a6a-4f4b-b527- 7f94d0de6bbc/5dc91c0f-f1b7-4b6e-9d42-76043adaf72d.html) Attorney Websites (https://www.lawyermarketing.com/services/mobile- friendly-websites/? ct_primary_campaign_source=701130000027LuU&ct_source=Website&ct_so Online Advertising (https://www.lawyermarketing.com/services/integrated-marketing- solutions/? ct_primary_campaign_source=701130000027LuU&ct_source=Website&ct_so Buy a Directory Profile (https://store.lawyermarketing.com) Marketing Resources On-Demand Webcasts (https://www.lawyermarketing.com/webcasts/? ct_primary_campaign_source=701130000027LuU&ct_source=Website&ct_so White Papers (https://www.lawyermarketing.com/white-papers/? ct_primary_campaign_source=701130000027LuU&ct_source=Website&ct_so Copyright © 2020, Thomson Reuters. All rights reserved. Page 7 of 7 CANADY v. PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION | Fin... 07/31/2020 https://caselaw.findlaw.com/az-court-of-appeals/1314991.html