     15-2238-cv
     Austin v. Town of Farmington

 1                         UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                  August Term, 2015
 6
 7   (Argued: January 22, 2016                  Decided: June 21, 2016)
 8
 9                             Docket No. 15-2238-cv
10   - - - - - -       - - - - - - - - - - - - - - - - - - - - - - - - - -
11
12   COLLEEN & JOHN AUSTIN,
13             Plaintiffs-Appellants,
14
15                       v.
16
17   TOWN OF FARMINGTON,
18             Defendant-Appellee.
19
20   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
21
22   B e f o r e:      WINTER, RAGGI, and DRONEY, Circuit Judges.
23
24         Appeal from a grant by the United States District Court for

25   the Western District of New York (Michael A. Telesca, Judge) of a

26   Rule 12(b)(6) motion dismissing appellants’ complaint asserting

27   Fair Housing Act claims.         The principal issue is whether the

28   Town’s resolutions granting variances allowing appellants to

29   build auxiliary structures, e.g. an above-ground pool, fence, and

30   deck, violated the Act by requiring removal when their disabled

31   child left the property.         We affirm in part and vacate in part.

32
33                                         LAURIE MARIE LAMBRIX, Legal
34                                         Assistance of Western New York,
35                                         Inc., Rochester, NY, for
36                                         Plaintiffs-Appellants.
37

                                                            1
 1                                           ROBERT BRENNA JR.(Sheldon W. Boyce,
 2                                           Jr. and Donald G. Rehkopf, Jr., on
 3                                           the brief), Brenna Boyce, PLLC,
 4                                           Rochester, NY, for Defendant-
 5                                           Appellee.
 6
 7   WINTER, Circuit Judge:

 8           Colleen and John Austin appeal from Judge Telesca’s

 9   dismissal of their complaint pursuant to Fed. R. Civ. P.

10   12(b)(6).       The complaint asserted claims under the Fair Housing

11   Act (“FHA”), Title VIII of the Civil Rights Act of 1968, as

12   amended, 42 U.S.C. § 3601 et seq., against the Town of

13   Farmington.       The complaint alleged that appellants obtained

14   limited variances from a land–use regulation prohibiting

15   accessory structures on the lot of their newly purchased home.1

16   The variances allowed appellants to install a fence, pool, and

17   deck designed to accommodate the needs of appellants’ disabled

18   son.2       The Town Board’s resolutions allowing the variances

19   required removal of the structures when, inter alia, the disabled

20   child’s residency in the house terminated.                We shall refer to

21   these limitations as the “Restoration Provisions.”                   The

             1
             Typical zoning variances always “run with the land” and continue until
     properly revoked. 2 Anderson, New York Zoning Law and Practice § 23.53 [3d ed].
     However, while we use the term “variance” in this opinion to refer to the Town’s
     resolutions, they were obviously not intended to run with the land. See J. App’x at 49
     (stating that variance was “a temporary accommodation” of child’s special needs).

             2
             The FHA uses the term “handicap” rather than “disability.” See 42 U.S.C. §
     3604(f)(3). The FHA definition of “handicap,” though, is virtually identical to the
     definition of “disability” in the Americans with Disabilities Act of 1990 (“ADA”),
     Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. § 12101 et seq.
     (2008)), and disability scholars tend to prefer the term “disability.” We will
     therefore treat the two terms interchangeably and use the term “disability” throughout
     this opinion. See Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 38 n.8 (2d Cir.
     2015) (using terms interchangeably for similar reasons).

                                               2
 1   reasonableness under the Act of the requirement that the land-use

 2   restrictions be restored after the child’s residency ended is at

 3   the heart of the present dispute.             Appellants also claim that the

 4   Restoration Provisions constituted illegal retaliation for their

 5   asserting FHA claims.         See 42 U.S.C. § 3617.

 6         The district court determined that it did not need to reach

 7   the issue of whether the Restoration Provisions were reasonable

 8   under the FHA because appellants’ complaint did not allege facts

 9   sufficient to show either an intent to discriminate or to

10   constitute disparate impact discrimination.                Because we conclude

11   that the reasonableness of the Town’s accommodations is in issue,

12   but a valid claim for retaliation has not been alleged, we affirm

13   in part and vacate in part.

14                                       BACKGROUND

15         In reviewing a district court’s Fed. R. Civ. P. 12(b)(6)

16   dismissal of a complaint, we of course accept all factual

17   allegations as true, and draw all reasonable inferences in the

18   plaintiff’s favor.        See Chambers v. Time Warner, Inc., 282 F.3d

19   147, 152 (2d Cir. 2002).3




           3
             Appellants moved for summary judgment in their favor in the district court and
     accompanied that motion with a variety of documents, including records of various Town
     agencies and offices. These records are integral to the complaint, San Leandro
     Emergency Med. Grp. Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808-09 (2d
     Cir. 1996), and we refer to them where needed in our discussion of the facts. We also
     rely on appellants’ summary judgment papers to the extent they clarify the allegations
     of the complaint with regard to costs of installation and removal of the structures,
     facts that do not affect our disposition of this appeal.

                                               3
1           The complaint alleges that, in 2009, Colleen and John Austin

2    decided to move from North Carolina to up-state New York, with

3    their two sons.   Their older son, Cole, has multiple serious

4    disabilities as a result of being born prematurely, including

 5   cerebral palsy and global developmental delays.     He is non-verbal

 6   and visually impaired.

 7          Appellants sought to move to an area with good public

 8   schools and chose the Town of Farmington.    Appellants became

 9   interested in a newly-constructed home in the Town’s Auburn

10   Meadows development.     Appellants wanted to install a fence in

11   order to keep their son safely within their yard and to build an

12   above-ground pool because of the benefits aquatic therapy affords

13   to children with cerebral palsy.

14          Before purchasing the home, appellants learned that there

15   was a Town ordinance restricting “patio lots,” like that of the

16   house in question, in the subdivision.    The restriction in

17   question was passed as part of the rezoning and authorization

18   necessary to the Auburn Meadows development.    The authorization

19   contained numerous provisions relating to open space, trails,

20   etc.   The provision at issue here prohibited accessory

21   structures, such as pools and fences, “within the patio home

22   portion of the site” but allowed such structures on other

23   (larger) lots “within the rear yard portion of the site provided




                                        4
 1   that such rear yards are screened from adjacent public rights-of-

 2   ways.”    Appellants’ lot was subject to the full prohibition.

 3         Upon learning of the land-use restriction on the property,

 4   Colleen Austin called the Farmington Town building department to

 5   seek a variance.       The Code Enforcement Officer told her that

 6   appellants would have to request such a variance from the Town

 7   Board.    Appellants bought the home confident that they would be

 8   able to secure the necessary permission.

 9         In June 2012, after negotiations with appellants, the Town

10   Board passed a Resolution entitled “Granting a Temporary

11   Accommodation to install a Fence and an Above-Ground Swimming

12   Pool to the Owners of 1685 Lillybrook Court . . . in the Auburn

13   Meadows Subdivision . . . .”4           However, the Resolution also

14   stated that the fence and swimming pool must “be wholly removed”

15   from the property “within 21 days” of the disabled child ceasing

16   to live on the property, of appellants ceasing to own the

17   property “whether by conveyance, death or any other reason,” or

18   of anyone being added as an additional owner of the property.

19   The Resolution further stated that the fence and pool were to be

20   removed “at the expense of the Austin’s [sic] or of the new




           4
             The Town Board, established under New York Town Law § 60, has the authority to
     adopt, amend, and repeal zoning regulations. See N.Y. Mun. Home Rule Law §
     10(1)(ii)(a); N.Y. Stat. Local Gov’ts § 10(6); Town of Farmington, N.Y. Zoning Code
     ch. 165 (1980).

                                               5
 1   owners of [the property].”5          The Resolution stated that

 2   appellants had the right to bring a legal challenge to the

 3   Restoration Provisions.

 4         During the summer of 2012, appellants installed the fence

 5   and pool.     After the Town granted appellants’ request for a

 6   second variance, they added a deck to the pool.                  The second

 7   Resolution contained the same Restoration Provision.                   The total

 8   cost for installing the fence, pool, and deck, as well as

 9   accompanying landscaping work, was over $27,000.                  Appellants have

10   been quoted a price of $6,630 to remove the fence, pool, and deck

11   and repair the damage to the yard.

12         On June 11, 2014, appellants filed the present action

13   challenging the Restoration Provisions and seeking declaratory

14   and injunctive relief against their enforcement.                  Appellants

15   alleged two claims based on the FHA:              (i) discrimination by the

16   Town’s denial of “a reasonable modification pursuant to 42 U.S.C.

17   Section 3604(f)(3)(A),” and (ii) retaliation by the Town “for

18   asserting their rights under federal law in violation of 42

19   U.S.C. Section 3617.”




           5
             The Resolution stated that if the fence and pool were not removed during the
     specified time period, “the Town [would] be able to bring [an] action to enforce the
     removal of the fence and the above-ground swimming pool and whoever is the owner of
     1685 Lillybrook Court at that time shall be liable for all of the Town’s expenses in
     bringing such legal action, including, but not limited to, costs and reasonable
     attorney’s fees.”



                                               6
 1          On June 8, 2015, the district court dismissed appellants’

 2   complaint pursuant to the Town’s Fed. R. Civ. P. 12(b)(6) motion.

 3   The court concluded that there were “simply no facts alleged that

 4   evince a discriminatory intent in requiring that plaintiffs

 5   restore their property to its original condition once the need

 6   for the modifications is no longer present.”    Austin v. Town of

 7   Farmington, 113 F. Supp. 3d 650, 655 (W.D.N.Y. 2015). Further,

 8   the court held that “[p]laintiffs fail[ed] to support, beyond

 9   their conclusory assertions, that requiring them to bear the cost

10   of removal of the fence and pool is in some way based upon their

11   son’s disability when the initial grant of a variance to build

12   the pool along with a fence was granted knowing that plaintiffs’

13   son was disabled.”   Finally, the court stated that “plaintiffs

14   have not sufficiently alleged a violation of the FHA under the

15   disparate-impact analysis . . . .     Here, there has been no

16   showing that the restoration requirement does not apply to non-

17   disabled individuals.”

18                                DISCUSSION

19          As noted, we review de novo a district court’s dismissal of

20   a complaint pursuant to Rule 12(b)(6).    See Chambers, 282 F.3d at

21   152.   To survive dismissal, a complaint must plead “enough facts

22   to state a claim to relief that is plausible on its face.”      Bell

23   Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).




                                       7
 1        In 1988, Congress amended the Fair Housing Act of 1968 to

 2   extend its coverage to housing discrimination based on an

 3   individual’s disability.

 4        Section 3604(f)(3) provides:

 5             For purposes of this subsection,
 6             discrimination includes --
 7
 8             (A) a refusal to permit, at the expense of
 9             the handicapped person, reasonable
10             modifications of existing premises occupied
11             or to be occupied by such person if such
12             modifications may be necessary to afford such
13             person full enjoyment of the premises except
14             that, in the case of a rental, the landlord
15             may where it is reasonable to do so condition
16             permission for a modification on the renter
17             agreeing to restore the interior of the
18             premises to the condition that existed before
19             the modification, reasonable wear and tear
20             excepted.
21
22             (B) a refusal to make reasonable
23             accommodations in rules, policies, practices,
24             or services, when such accommodations may be
25             necessary to afford such person equal
26             opportunity to use and enjoy a dwelling; or
27             . . . .
28
29   42 U.S.C. § 3604(f)(3).    Neither Subsection (A) nor Subsection

30   (B) requires that the denial of modifications or accommodations

31   be the result of a discriminatory animus toward the disabled.

32   Both require only that the requested modification or

33   accommodation be reasonable and that the denial(s) result, in the

34   case of Section 3604(f)(3)(A), in diminishing the disabled

35   person’s full enjoyment of the premises or, in the case of

36   Section 3604(f)(3)(B), in so diminishing that person’s use and


                                       8
 1   enjoyment of the premises as to constitute a denial of equal

 2   opportunity.

 3        The Town does not challenge the applicability of the FHA to

 4   the ordinance prohibiting accessory structures on patio lots in

 5   the Auburn Meadows development.       Indeed, the House Report

 6   accompanying the 1998 Amendments to the FHA specifically stated

 7   that the Act was intended “to prohibit the application of special

 8   requirements through land-use regulations, restrictive covenants,

 9   and conditional or special use permits that have the effect of

10   limiting the ability of such individuals [disabled persons] to

11   live in the residence of their choice in the community.”         H.R.

12   Rep. No. 100-711, at 24 (1988), reprinted in 1988 U.S.C.C.A.N.

13   2173, 2185; see, e.g., City of Edmonds v. Oxford House, Inc., 514

14   U.S. 725, 729-30 (1995) (applying FHA provisions to a city zoning

15   code).

16        Appellants argue that the Restoration Provisions violate

17   Subsection (A).   They argue that (A)’s provision allowing

18   landlords to require restoration of interiors as a condition to a

19   modification supports an inference that all other restoration

20   requirements are per se unreasonable under the FHA.

21        However, a plain reading of the statute reveals that there

22   is no per se rule against land-use regulators including

23   restoration provisions in zoning variances or other land-use

24   accommodations.   Subsections (A) and (B) must be read as a whole,


                                       9
 1   Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) (”[W]hen

 2   construing the plain text of a statutory enactment, we do not

 3   construe each phrase literally or in isolation [but rather]

 4   attempt to ascertain how a reasonable reader would understand the

 5   statutory text, considered as a whole.”), and when that is done,

 6   it is clear that the subsection that governs the present appeal

 7   is (B).     It is true that appellants were seeking the right to

 8   install modifications to the premises, but their request for a

 9   variance from the patio lot restrictions was a request, in the

10   language of (B), for an “accommodation[] in rules [or] policies.”

11   42 U.S.C. § 3604(f)(3)(B).           Subsection (B) contains nothing,

12   either directly or by negative inference, outlawing restoration

13   provisions.      In short, it is clear that (A)’s mandates are

14   limited to housing providers while (B), which does not mention

15   restoration, also applies to private or public entities that do

16   not own but promulgate rules or policies governing various areas

17   of land.     Of course, some entities may be both housing providers

18   and rule makers.        However, in the present circumstances, the Town

19   of Farmington is clearly not a housing provider but, rather, is

20   only a land-use regulator.6

21         Appellants rely heavily upon a “Joint Statement of the

22   Department of Housing and Urban Development and the Department of



           6
             We note that the Supreme Court has held that municipalities may be considered
     both regulators and housing providers. Edmonds, 514 U.S. at 729-30.

                                               10
 1   Justice” regarding “Reasonable Modifications under the Fair House

 2   Act.”7    Joint Statement of the Department of Housing and Urban

 3   Development and the Department of Justice, Reasonable

 4   Modifications Under the Fair Housing Act (Mar. 5, 2008),

 5   www.hud.gov/offices/fheo/disabilities/reasonable_modifications_ma

 6   r08.pdf (“Joint Statement on Reasonable Modifications”).                     This

 7   reliance is misplaced.         The Joint Statement on Reasonable

 8   Modifications is inapplicable because the instant appeal concerns

 9   an accommodation, not a modification.              Nonetheless, the

10   document’s description of the relationship between Subsections

11   (A) and (B) remains informative, and is described as follows:

12                [A] reasonable modification is a structural
13                change made to the premises whereas a
14                reasonable accommodation is a change,
15                exception, or adjustment to a rule, policy,
16                practice, or service. A person with a
17                disability may need either a reasonable
18                accommodation or a reasonable modification,
19                or both, in order to have an equal
20                opportunity to use and enjoy a dwelling . . .
21
22   Id. at 6 (emphasis in original).               See also Joint Statement of the

23   Department of Housing and Urban Development and the Department of


           7
             We note that the Joint Statement on Reasonable Modifications is a policy
     statement, rather than an authoritative interpretation of Section 3604. Therefore, it
     does not carry the force of law and is not accorded Chevron deference. See
     Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (“[I]nterpretations contained in
     policy statements, agency manuals, and enforcement guidelines, all of which lack the
     force of law[,] do not warrant Chevron-style deference.”); see also Barnhart v.
     Walton, 535 U.S. 212, 221-22 (2002). It does, however, still qualify for the lower
     deference accorded by the Supreme Court’s ruling in Skidmore v. Swift & Co., which
     gives deference to interpretive rules according to their persuasiveness, evaluated
     under a four factor test. 323 U.S. 134, 140 (1944) (evaluating persuasiveness of
     interpretive rules according to (1) the thoroughness of the agency's investigation;
     (2) the validity the agency’s reasoning; (3) the consistency of the agency’s
     interpretation over time; and (4) other persuasive powers of the agency).



                                               11
 1   Justice, Reasonable Accommodations Under the Fair Housing Act

 2   (May 17, 2004),

 3   www.hud.gov/offices/fheo/library/huddojstatement.pdf (“Joint

 4   Statement on Reasonable Accommodations”), at 6 (defining

 5   “reasonable accommodation”).   Applying this framework to the

 6   present matter, appellants sought an exception –- variance –- to

 7   the Town’s ordinance prohibiting accessory structures on patio

 8   lots in the Auburn Meadows development, which exception would

 9   allow them to make physical modifications to their property –-

10   i.e., install a fence, pool, and deck.    See Edmonds, 514 U.S. at

11   729-30 (applying Section 3604(f)(3)(B) to a city zoning code).

12        Viewing the Town’s Resolutions as accommodations governed by

13   Subsection (B), we now turn to appellants’ challenge to the

14   Restoration Provisions.   In dismissing appellants’ complaint, the

15   district court concluded, seemingly as a matter of law, that the

16   Town’s “refusal to remove the restoration condition [did] not

17   constitute a refusal to make a reasonable accommodation for

18   plaintiffs’ disabled son in its zoning policy.”    Austin v. Town

19   of Farmington, 113 F. Supp. at 655.      The court also determined

20   that appellants failed to state a claim under the FHA because

21   they alleged neither an intent to discriminate, nor facts

22   sufficient to constitute disparate-impact discrimination.    See

23   id. at 655-56.    Because of these failures, and the fact that

24   appellants were not excluded from purchasing or using the housing


                                      12
 1   of their choice because of the restoration requirement, the court

 2   granted appellees’ motion to dismiss the complaint.    Id. at 656.

 3        The language of Section 3604(f)(3)(A), (B) compels a

 4   different conclusion.   The subsections define unlawful

 5   discrimination, in the present context, as refusing a reasonable

 6   accommodation allowing appellants to make reasonable

 7   modifications to their property to afford their disabled child an

 8   equal opportunity to enjoy fully the use of the property.     The

 9   unlawful act, therefore, is the refusal to make a reasonable

10   accommodation without regard to the state of mind underlying the

11   refusal.

12        Appellants do not challenge the accommodation made by the

13   Town to the extent it allowed them, as they requested, to build a

14   fence, install a pool, and add a deck to the pool.    Their

15   challenge is simply to the portion of the Town’s Resolutions

16   requiring the removal of these modifications.   The Town, in

17   short, does not want the variance to “run with the land” -- to be

18   taken advantage of by later occupants without a disability --

19   while appellants want to avoid the cost of removal and to capture

20   any increase in the value of the property caused by the

21   modifications and/or by permanently freeing the lot in question

22   from the restrictions applicable to the neighborhood in question.

23   Pl.’s Br. 7.




                                     13
 1        It is certainly true, as the district court reasoned, that

 2   the Restoration Provisions did not directly deprive the disabled

 3   child of his rights under the FHA.   However, we believe that a

 4   trier of fact might find that a restoration requirement in some

 5   circumstances so burdens a party wanting to modify a property to

 6   accommodate a disabled person that it amounts to a refusal of a

 7   reasonable accommodation.   See Logan v. Matveevskii, 57 F. Supp.

 8   3d 234, 257 (S.D.N.Y. 2014) (asserting that “a refusal of a

 9   request for a reasonable accommodation can be both actual or

10   constructive,” such as where request for accommodation is met

11   with indeterminate delay instead of outright denial (internal

12   quotation mark omitted)).   This would violate the FHA even though

13   the authority imposing a restoration requirement believed in good

14   faith that it was fully accommodating the disabled individual.

15        The issue of whether the failure of the Town to allow the

16   modifications to continue in place after the child left the

17   property was reasonable therefore can neither be avoided nor

18   decided as a matter of law on the pleadings.   See, e.g.,

19   Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 578 (2d Cir.

20   2003); see also Hollis v. Chestnut Bend Homeowners Ass’n, 760

21   F.3d 531, 541 (6th Cir. 2014) (“[T]he crux of a reasonable-

22   accommodation . . . claim typically will be the question of

23   reasonableness.”).   Whether the Town’s Resolutions are reasonable

24   in light of appellants’ needs requires a complex balancing of


                                     14
 1   factors.   Reasonableness analysis is “highly fact-specific,

 2   requiring a case-by-case determination.”   Hovsons, Inc. v. Twp.

 3   of Brick, 89 F.3d 1096, 1104 (3d Cir. 1996) (quoting United

 4   States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418

 5   (9th Cir. 1994)).

 6        The reasonableness issue here cannot be determined on the

 7   pleadings because the relevant factors are numerous and balancing

 8   them requires a full evidentiary record.   A requested

 9   accommodation is reasonable where the cost is modest and it does

10   not pose an undue hardship or substantial burden on the rule

11   maker.   See Olson v. Stark Homes, Inc., 759 F.3d 140, 156 (2d

12   Cir. 2014); see also Joint Statement on Reasonable Accommodations

13   at 7 (explaining that accommodation is not reasonable “if it

14   would impose an undue financial and administrative burden on the

15   [rule maker] or it would fundamentally alter the nature of the

16   [rule maker’s] operations”).   Applied to the context of land-use

17   regulations, relevant factors may include the purposes of the

18   restriction, the strength of the Town’s interest in the land-use

19   regulation at issue, the need for uniformity, the effect of

20   allowing later landowners without a disability to enjoy the lack

21   of a restriction on pools, decks, and fences, while all their

22   neighbors are subject to it, the likelihood that a permanent

23   variance will cause other landowners subject to the regulation to




                                     15
 1   seek similar variances, etc.8              Balanced against those factors is

 2   the cost of removal –- again, whether out of pocket or in a

 3   reduced sale price.9           We say no more because there are

 4   undoubtedly a host of relevant factors looking in both directions

 5   to be considered.           Moreover, we do not want to make gratuitous

 6   statements that may seem to address other of the multitude of

 7   land-use regulations, e.g. historic landmarking, etc.

 8          However, we affirm the dismissal of appellants’ retaliation

 9   claim.       “A claim has facial plausibility when the plaintiff

10   pleads factual content that allows the court to draw the

11   reasonable inference that the defendant is liable for the

12   misconduct alleged.”            Ashcroft v. Iqbal, 556 U.S. 662, 678

13   (2009).

14          Unlike a claim under Subsection 3604(f)(3), a retaliation

15   claim does require a showing of a particular state of mind, i.e.,

16   a retaliatory motive.            See Reg’l Econ. Cmty. Action Program, Inc.

17   v. City of Middletown, 294 F.3d 35, 53-55 (2d Cir. 2002); see

18   also Zhu v. Countrywide Realty Co., 165 F. Supp. 2d 1181, 1198

19   (D. Kan. 2001) (“[I]n order to make out a prima facie case under

20   Section 3617, [a] plaintiff must demonstrate that intentional

21   discrimination motivated defendants’ conduct, at least in



            8
                The requisite reasonableness analysis is, in this matter, under Subsection
     (B).
            9
             Sometimes, of course, the freedom from an otherwise generally applicable
     restriction may greatly enhance the value of a particular piece of property.

                                                  16
 1   part.”).    No non-conclusory allegation of fact showing such a

 2   motive is in the complaint.    In their brief, appellants argue

 3   that the lack of a proffered justification for the Restoration

 4   Provisions and the existence elsewhere in the Town of lots

 5   smaller than appellants’ property without a prohibition on

 6   accessory structures is sufficient to allege a prima facie case

 7   of retaliation.   We disagree.   The Restoration Provisions on

 8   their face simply restore the requirements applicable to all such

 9   properties in the area once the needs of appellants’ disabled

10   child are not an issue.   Their purposes are obvious and reflected

11   in the documents accompanying appellants’ own motion for summary

12   judgment.   Town-wide differences in the applicability of various

13   land-use regulations to various developments and lots preexisted

14   appellants’ request for a variance, and the Auburn Meadows

15   regulations apply to appellants’ neighbors as well as to them.

16   There is, therefore, no allegation supporting the existence of a

17   retaliatory motive.

18                                 CONCLUSION

19        For the foregoing reasons, the judgment granting the Town’s

20   motion to dismiss is affirmed in part and vacated in part.   Each

21   party should bear its own costs.

22

23

24


                                       17
