A New York developer planned to build a 72- unit assisted living facility for the aged with staff offering residents assistance with meals and daily activities, but not skilled nursing care. The proposed site is zoned partly for commercial use and partly for residential use.

After the Board of Zoning Appeals rejected the builder’s bid for a special use permit, it filed a federal suit for violating the Americans With Disabilities Act (ADA), the Rehabilitation Act and the Fair Housing Act.

The builder alleged discriminatory conduct including the failure to reasonably accommodate the needs of the disabled prospective residents. It sought a preliminary injunction ordering the town to allow construction.

The U.S. Court of Appeals for the Second Circuit ruled that because the developers failed to show that people without disabilities could get what they were seeking—permits for residences in that same commercial zone—no injunction was warranted.

“If a building permit would not be granted even for comparable ‘traditional’ residences (that is, residences where persons without disabilities can live) in the relevant area, a municipality is not required to make accommodations that would facilitate a building permit for housing designed for the disabled.”