Number range CHAPTERUNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

UNITED STATES OF AMERICA, )

Plaintiff, )

)

and )

)

)

TAYLOR HOME OF CHARLOTTE, INC. )

Intervenor-Plaintiff. ) CIVIL ACTION NO.

) 3:94-CV-394-MU

v\. )

)

)

CITY OF CHARLOTTE, NORTH CAROLINA, )

Defendant. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
)

**UNITED STATES\' MEMORANDUM IN OPPOSITION TO DEFENDANT\'S**

**MOTIONS TO DISMISS INTERVENOR\'S**

**SECOND AND FOURTH CLAIMS**

# STATEMENT OF THE CASE

The United States filed suit on November 23, 1994, against Defendant
City of Charlotte, North Carolina (\"Defendant\"). The United States
alleges that Defendant has violated the Fair Housing Act, 42 U.S.C. §§
3601 [et seq.]{.underline} (1988 & Supp. IV 1992). The United States\'
claims include one based on discrimination by Defendant against
Intervenor-Plaintiff, Taylor Home of Charlotte Inc. (\"Intervenor\" or
\"Taylor\") in the context of Taylor\'s application to construct a home
for AIDS patients.

Taylor moved to intervene and Magistrate Judge McKnight issued an Order
allowing intervention on December 28, 1994. Taylor\'s Complaint in
Intervention includes four claims. Only the second and fourth claims are
subjects of Defendant\'s current motions to dismiss. These claims allege
violations of title II of the Americans with Disabilities Act of 1990
(\"ADA\"), 42 U.S.C. §§ 12101 [et seq.]{.underline} (Supp. IV 1992) and
section 504 of the Rehabilitation Act of 1973 (\"section 504\"), 29
U.S.C. § 794 (1988 & Supp. IV 1992). Defendant seeks dismissal of these
claims under Fed. R. Civ. P. 12(b)(1) for lack of standing and under
Fed. R. Civ. P. 12(b)(6) for failure to state a claim.[^1]

The United States has significant responsibilities for implementing and
enforcing title II of the ADA, including the promulgation of
implementing regulations. 42 U.S.C. § 12134. The United States also has
significant responsibility for enforcing section 504 of the
Rehabilitation Act in connection with federally assisted programs and
activities. The United States, therefore, has a strong interest in
ensuring that the case law developed in this suit, regarding standing to
sue and regarding the ADA\'s application to zoning decisions, is
consistent with the United States\' interpretation of the statutes and
the Department of Justice\'s regulations.[^2]

# 

# ARGUMENT

I. Taylor Has Standing under Title II of the ADA Based on Its
Association with Persons with Disabilities

Defendant concedes that the allegations of Taylor\'s Complaint in
Intervention must be taken as true for purposes of the present motions.
Defendant\'s Memorandum in Support, p. 3. Taylor provides housing for
persons with AIDS.[^3] Taylor alleges that Defendant revoked Taylor\'s
permit to build a group home in Charlotte because persons with AIDS
would occupy the building. Taylor\'s Complaint in Intervention asserts
that this action violates the ADA.

Defendant argues that title II of the ADA extends rights only to
individuals with disabilities, and not to individuals or entities who
are subjected to discrimination on the basis of their association with
individuals with disabilities. Defendant argues that, because Taylor is
not, itself, an individual with a disability, Taylor does not have
standing to sue under title II. This argument ignores the statutory text
and legislative history of title II, as well as the implementing
regulations and technical assistance materials issued by the Department
of Justice. Defendant\'s argument also ignores relevant case law
supporting Taylor\'s standing.

Title II of the ADA prohibits discrimination on the basis of disability
in general terms. 42 U.S.C. §12132. It then goes on to extend relief to
\"any [person]{.underline} alleging discrimination on the basis of
disability.\" 42 U.S.C. § 12133. Contrary to Defendant\'s contention,
that \"person\" need not be an individual with a disability. That person
may be an entity or anyone who is injured by a covered entity\'s
discrimination. As Defendant notes, Congress knew how to limit
enforcement to \"individuals with disabilities\" if it wanted to. Yet,
in defining who could sue under title II, it provided for broad
enforcement by any \"person.\"

In fact, title II protects individuals and entities from discrimination
on the basis of association with an individuals with disabilities.
Titles I and III provide numerous specific provisions defining
prohibited discrimination. 42 U.S.C. §§ 12112 and 12182. Rather than
repeat those specific provisions in title II, Congress simply prohibited
discrimination by public entities with one sentence in general terms. 42
U.S.C. § 12132. Congress then went on to require, in title II itself,
that the Department of Justice\'s title II regulations be \"consistent
with this chapter,\" 42 U.S.C. § 12134(b), meaning consistent with the
entire Act. [See]{.underline} \"References In Text\" to 42 U.S.C. §
12201 (\"Construction\"). By doing so, Congress made clear that the
discrimination prohibited by the general provisions of title II
encompassed that which was prohibited in greater detail by titles I and
III.

Included explicitly in title III\'s list of prohibited discrimination is
discrimination against \"an individual or entity because of the known
disability of an individual with whom the individual or entity is known
to have a relationship or association.\" 42 U.S.C. § 12182(b)(1)(E).
[See also]{.underline} 42 U.S.C. § 12112(b)(4) (Title I provision
prohibiting discrimination on the basis of association). Thus, by
incorporating the specific prohibitions of title III into the general
prohibition of title II, Congress made title II applicable to
discrimination against individuals and entities on the basis of
association.

In legislative history, Congress underscored title II\'s prohibition of
discrimination on the basis of association. In emphasizing its intent
that title II\'s prohibitions \"be identical to those set out in the
applicable provisions of titles I and III of this legislation. . . ,\"
H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 84 (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 303, 367, the House Committee on
Education and Labor directed that \"the construction of
\'discrimination\' set forth in section 302(b) \[42 U.S.C. § 12182(b)\]
should be incorporated in the regulations implementing this title.\"
[Id]{.underline}. The House Committee on the Judiciary report explained
that \"\[t\]itle II should be read to incorporate provisions of titles I
and III . . . such as Section 102(b)(4) \[42 U.S.C. § 12112(b)(4),
explicitly prohibiting discrimination on the basis of association\]. . .
.\" H.R. Rep. No. 435 (III), 101st Cong., 2d Sess. 51 (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 303, 474.

Clearly, therefore, title II\'s protections must be read to be
coextensive with title III\'s protections. [See Kinney v.
Yerusalim]{.underline}, 9 F.3d 1067, 1073 n. 6 (3d Cir. 1993), [cert.
denied]{.underline}, 114 S. Ct. 1545 (1994) (noting that this
legislative history shows that Congress intended titles II and III to be
read consistently). The legislative history\'s explicit reference to
section 302(b), which includes the prohibition of discrimination on the
basis of association, makes clear Congress\' intent to include entities
associated with individuals with disabilities within the protection of
title II, just as they are included in title III.

Consistent with the statute and its legislative history, the Department
of Justice regulation implementing title II specifically provides: \"A
public entity shall not exclude or otherwise deny equal services,
programs, or activities to an individual or entity because of the known
disability of an individual with whom the individual or entity is known
to have a relationship or association.\" 28 C.F.R. § 35.130(g) (1994).
This regulation makes clear that protection under title II is not
limited to individuals with disabilities, but extends to individuals
[and entities]{.underline} associated with them.

The Department of Justice\'s preamble to the title II regulation further
emphasizes Congress\' intent to protect entities associated with
individuals with disabilities. In discussing § 35.130(g), the preamble
provides:

> Paragraph (g), which prohibits discrimination on the basis of an
> individual\'s or entity\'s known relationship or association with an
> individual with a disability, is based on sections 102(b)(4) \[42
> U.S.C. § 12112(b)(4)\] and 302(b)(1)(E) \[42 U.S.C. § 12182(b)(1)(E)\]
> of the ADA. . . .
>
> This protection is not limited to those who have a familial
> relationship with the individual who has a disability. Congress
> considered, and rejected, amendments that would have limited the scope
> of this provision to specific associations and relationships. . . .
>
> During the legislative process, the term \"entity\" was added to
> section 302(b)(1)(E) \[42 U.S.C.§ 12182(b)(1)(E)\] to clarify that the
> scope of the provision is intended to encompass not only persons who
> have a known association with a person with a disability, but also
> entities that provide services to or are otherwise associated with
> such individuals. This provision was intended to ensure that entities
> such as health care providers, employees of social service agencies,
> and others who provide professional services to persons with
> disabilities are not subjected to discrimination because of their
> professional association with persons with disabilities.

28 C.F.R. pt. 35, App. A at 453.

Pursuant to statutory authority, 42 U.S.C. § 12206(c)(3), the Department
of Justice has published its Title II Technical Assistance Manual (\"TA
Manual,\" attached as Exhibit A) to assist the public in understanding
and complying with the statute and the regulation. The TA Manual
provides:

> A State or local government may not discriminate against individuals
> or entities because of their known relationship or association with
> persons who have disabilities. This prohibition applies to cases where
> the public entity has knowledge of both the individual\'s disability
> and his or her relationship to another individual or entity. In
> addition to family relationships, the prohibition covers any type of
> association between the individual or entity that is discriminated
> against and the individual or individuals with disabilities, if the
> discrimination is actually based on disability. . . .
>
> ILLUSTRATION 2: A local government could not refuse to allow a theater
> company to use a school auditorium on the grounds that the company has
> recently performed at an HIV hospice. . . .

TA Manual § II-3.9000 at 17 (November 1993).

The Department of Justice\'s interpretations of title II are entitled to
controlling weight. The regulation was issued pursuant to statutory
mandate. 42 U.S.C. § 12134(a). Accordingly, it is to be given
\"controlling weight unless \[it is\]arbitrary, capricious, or
manifestly contrary to the statute.\" [Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc.]{.underline}, 467 U.S. 837, 844 (1984).
[See Tugg v. Towey]{.underline}, 864 F. Supp. 1201, 1205 n. 6, 1208
(S.D. Fla. 1994) (according Department of Justice\'s title II regulation
controlling weight regarding coverage of discrimination on the basis of
association). [See also Noland v. Wheatley]{.underline}, 835 F. Supp.
476, 483 (N.D. Ind. 1993) (applying [Chevron]{.underline} to give
controlling weight to Department of Justice interpretation of title II);
[Petersen v. University of Wisconsin Bd. of Regents]{.underline}, 818 F.
Supp. 1276, 1279 (W.D. Wis. 1993) (same). This regulation is far from
\"arbitrary, capricious, or manifestly contrary to the statute.\"
[Chevron]{.underline}, 467 U.S. at 844. In fact, it is required by the
statute and its legislative history.

In addition, as the Department of Justice\'s interpretation of its own
regulation, the analysis in the preamble to the regulation and the TA
Manual is entitled to \"\'controlling weight unless it is plainly
erroneous or inconsistent with the regulation.\'\" [Thomas Jefferson
Univ. v. Shalala]{.underline}, 114 S. Ct. 2381, 2386 (1994) ([quoting
Bowles v. Seminole Rock & Sand Co.]{.underline}, 325 U.S. 410, 414
(1945)). [See Tugg v. Towey]{.underline}, 864 F. Supp. at 1208 (relying
on the preamble regarding coverage of association); [Fiedler v. American
Multi-Cinema, Inc.]{.underline} 871 F. Supp. 35, 36 n. 4 (D.D.C. 1994)
(according controlling weight to Title III Technical Assistance Manual);
[Noland]{.underline}, 835 F. Supp. at 483(relying on TA Manual\'s
interpretation of title II); [Petersen]{.underline}, 818 F. Supp. at
1280 (same).

Very few cases have addressed the issue of title II\'s protection of
individuals and entities subjected to discrimination on the basis of
their association with individuals with disabilities. In [Tugg v.
Towey]{.underline}, 864 F. Supp. 1201, deaf individuals and their family
members sued for violations of title II of the ADA. The defendants in
that case, like Defendant here, argued that the non-disabled individuals
did not have standing to sue in their own right because they were not
individuals with disabilities. The court, relying on 28 C.F.R. §
35.130(g) and the preamble thereto, found that title II gave \"broad
protection to anyone associated with an individual with a disability.\"
[Id.]{.underline} at 1208. Consequently, the court found that the
non-disabled individuals did have standing to assert their own rights
under the ADA.[^4] [See also Finley v. Giacobbe]{.underline}, 827 F.
Supp. 215 (S.D.N.Y. 1993) (assuming, without discussion, that
non-disabled individual fired from county hospital for admitting
patients with AIDS has standing to assert claim under title II).

Defendant cites [Kessler Inst. for Rehabilitation, Inc. v. Mayor and
Council of Essex Fells]{.underline}, \_\_\_ F. Supp. \_\_\_, 1995 WL
42916 (D.N.J. 1995), for the proposition that title II provides rights
only to individuals with disabilities and not to entities that serve
individuals with disabilities. The court in that case failed to address
the provisions of the statute discussed above, the clear language of the
regulation, the legislative history, or the technical assistance
materials produced by the Department of Justice. Based, as it apparently
was, on a cursory and incomplete reading of the statute, that decision
is contrary to the law and should not be relied upon as precedent for
this Court. To do so would be to frustrate congressional intent and to
overrule statutorily required regulations in contravention of
established principles of judicial review.

II\. Taylor Has Standing Under Section 504 of the Rehabilitation Act on
the Basis of Association with Individuals with Disabilities

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (1988 & Supp. IV
1992) broadly prohibits discrimination on the basis of disability. The
Act goes on to provide that \"\[t\]he remedies, procedures, and rights
set forth in title VI of the Civil Rights Act of 1964 . . . shall be
available to any [person aggrieved]{.underline} by any act or failure to
act by any recipient of Federal assistance or Federal provider of such
assistance under section 794 of this title.\" 29 U.S.C. § 794a (1988)
(emphasis added). The \"person aggrieved\" need not be an individual
with a disability.[^5]

Individuals and entities who are injured by discrimination on the basis
of disability have standing under section 504 even though they are not,
themselves, individuals with disabilities. In [Sullivan v. City of
Pittsburgh]{.underline}, 811 F.2d 171, 182 n. 12 (3d Cir. 1987), [cert.
denied]{.underline}, 484 U.S. 849 (1989), a non-profit corporation that
operated treatment centers for alcoholics sued under section 504 of the
Rehabilitation Act for discrimination in zoning and funding decisions by
the defendant city. The defendant argued that, because the corporation
was not a qualified individual with a disability, the city\'s
discrimination against the corporation was not actionable. The court
disagreed, finding that:

> Section 504\'s protection extends not just to handicapped individuals
> who are direct participants in federally-funded programs or activities
> but also to those who are intended ultimate beneficiaries of such
> programs or activities. Under § 504, discrimination on the basis of
> handicap is actionable upon a simple showing that discrimination has
> resulted in \"a diminution of the benefits \[a disabled individual\]
> would otherwise receive from \[a federally-funded\] program.\" . . .
> In fact, the clear intent of Congress in enacting § 504 was to make
> unlawful [direct or indirect]{.underline} discrimination against any
> handicapped individual who would benefit from a federally-funded
> program or activity. . . . Therefore, if the City denied . . . funds
> to \[the plaintiff corporation\] because the funds would be used for
> handicapped individuals, it violated § 504.

[Id.]{.underline} (citations omitted) (emphasis added).

In [Greater Los Angeles Council on Deafness, Inc. v. Zolin]{.underline},
812 F.2d 1103 (9th Cir. 1987), an organization paid for a sign language
interpreter for a deaf juror and was denied reimbursement by the county.
The organization sued under section 504. The defendants challenged the
organization\'s standing, claiming the organization was not a member of
the class benefitted by the statute. The court disagreed, finding that
organizations of or for people with disabilities have standing to sue
under section 504 for injunctive relief and to recover expenses made
necessary by a defendant\'s discrimination. [Id.]{.underline} at 1115.
[See also Williams v. United States]{.underline}, 704 F.2d 1162, 1163
(9th Cir. 1983) (organization whose purposes include improving the
quality of life of individuals with disabilities has standing to sue to
require Federal agencies to perform their obligations under section
504); [United Handicapped Fed\'n v. Andre]{.underline}, 558 F.2d 413
(8th Cir. 1977) (associations of individuals with disabilities have
standing).

In [Nodleman v. Aero Mexico]{.underline}, 528 F. Supp. 475 (C.D. Cal.
1981), the court considered whether an individual without a disability
had standing to sue under section 504 when her traveling companions were
denied services because they used wheelchairs. The court stated that
\"\[t\]he use of the phrase \'any person aggrieved\' in section
505(a)(2) evinces a congressional intention to define standing to bring
a private action under section 504 as broadly as is permitted by Article
III of the Constitution.\" [Id.]{.underline} at 485.[^6] The court,
therefore, found that the non-disabled individual could sue if
\"plaintiff alleges the loss of important associational benefits
resulting from the exclusion of discriminatees.\" [Id.]{.underline} at
486, [citing Trafficante v. Metropolitan Life Ins. Co.]{.underline}, 409
U.S. 205, 210-11 (1972). In the particular case before that court, the
plaintiff had failed to allege facts to clarify the basis of her
standing. Therefore, the court dismissed her claim without prejudice.

[Independent Housing Servs. v. Fillmore Ctr. Assocs.]{.underline}, 840
F. Supp. 1328 (N.D. Cal. 1993), upheld an organization\'s standing to
sue under section 504 because the organization provided services to
individuals with disabilities and because its provision of those
services was made more difficult by the defendant\'s discriminatory
acts. [Id.]{.underline} at 1336.

These cases indicate that Taylor has standing to redress its injuries
under both section 504 of the Rehabilitation Act and title II of the
ADA. Defendant cites several cases purporting to support its contention
that only an individual with a disability may sue under the
Rehabilitation Act. However, Defendant\'s cases do not support that
contention. Six of the eight cases Defendant cites, including the one by
the Fourth Circuit, simply addressed the question of whether the
Rehabilitation Act provided a private right of action to individuals
with disabilities. Each case confirmed that such a private right
existed. None of these cases addressed whether a private right of action
was available to anyone other than individuals with disabilities. These
cases simply did not raise, let alone decide, the issue raised by the
current motions.

In [Nelson v. Tuscarora Intermediate Unit No. 11]{.underline}, 457 A.2d
1260 (Pa. 1983), [cert. denied]{.underline}, 464 U.S. 866 (1983), the
court found, in the context of public education, that the Rehabilitation
Act was not a [defense]{.underline} to an action by a school district to
collect the cost of education for a child with a disability from a
provider of residential services to the child. The court found that the
defendant had no standing to assert the Rehabilitation Act as a defense,
relying on 45 C.F.R. § 84.33(c)(1) (regulation by the Department of
Health Education and Welfare), which provided that the Rehabilitation
Act would not \"relieve an insurer or similar third party from an
otherwise valid obligation to provide or pay for services provided to a
handicapped person.\" The defendant fell within this provision because
it had accepted contractual and legal obligations to educate the child.
Section 504 does not provide such a regulatory limitation in the context
of zoning. Nor is Taylor seeking to avoid an obligation to provide
services. Therefore, [Nelson]{.underline} is not helpful in the current
case.

In addition, one case cited by Defendant, [Andrew H. by Irene H. v.
Ambach]{.underline}, 600 F. Supp. 1271, 1278-80 (N.D.N.Y. 1984)
indicates that an organization [will]{.underline} have standing if it
alleges injury to itself or to its members. The court, on summary
judgment, found that the particular organizations before it, however,
had failed to sufficiently show such injury.

III. Title II of the ADA Applies to All Zoning Enforcement Activities
     Undertaken by Public Entities

In enacting the ADA, Congress sought to \"provide a clear and
comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.\" 42 U.S.C. § 12101(b)(1).
Defendant seeks to limit that mandate by arguing that some activities of
local governments, such as zoning, are not covered. In other words,
Defendant contends, local governments are prohibited from discriminating
in some of their activities but are free to discriminate in others. The
Defendant does not articulate any reason for distinguishing zoning from
other activities of public entities and the statute does not provide a
basis for such a distinction.

**A. The Text and Legislative History of Title II Demonstrate
Congressional Intent to Cover Local Zoning Enforcement Schemes.**

Title II provides broad protection against discrimination on the basis
of disability in the provision of public services. Title II\'s
antidiscrimination provision employs expansive language, intended to
reach all actions taken by public entities. It states:

> \[N\]o qualified individual with a disability shall, by reason of such
> disability, be excluded from participation in or be denied the
> benefits of the services, programs, or activities of a public entity,
> or be subjected to discrimination by such entity.

[Id.]{.underline} at § 12132. There is no suggestion in the statute that
zoning or any other type of public action is to be excluded from this
broad mandate. Zoning activities and decisions are plainly among the
\"services, programs, or activities\" conducted by public entities.
Moreover, the last phrase of title II\'s prohibition is even more
expansive, stating simply that no individual with a disability may be
\"subjected to discrimination\" by a public entity. [Id.]{.underline}
This language prohibits a public entity from discriminating on the basis
of disability in any manner, whether through zoning or any other
official activity.

To allow discrimination on the basis of disability in any area of
government functioning denies persons with disabilities equal
opportunity to benefit from those government functions, in direct
contravention to the ADA\'s stated goals.[^7]

Title II\'s legislative history leaves no doubt that Congress intended
title II to cover every action taken in every forum in which a public
entity may function. The House Report states: \"The Committee has chosen
not to list all the types of actions that are included within the term
\'discrimination,\' as was done in titles I and III, because this title
essentially simply extends the antidiscrimination prohibition embodied
in section 504 to [all actions of state and local
governments]{.underline}.\" H.R. Rep. No. 485 (II), 101st Cong., 2d
Sess. 84 (1990), [reprinted in]{.underline} 1990 U.S.C.C.A.N. 303, 367
(emphasis added). The House Report emphasizes the broad coverage of
title II later, stating: \"Title II of the bill makes [all
activities]{.underline} of State and local governments subject to the
types of prohibitions against discrimination against qualified
individuals with a disability included in section 504
(nondiscrimination).\" Id. at 151, [reprinted in]{.underline} 1990
U.S.C.C.A.N. at 434 (emphasis added).

Representative Coelho, the ADA\'s principal sponsor in the House of
Representatives, explained that the ADA was meant to prohibit
discrimination in the enactment and enforcement of local ordinances. 134
Cong. Rec. 9606, E1310 (April 29, 1988) (attached) (Title II \"will
prohibit discriminatory activities of State and local governments
resulting from ordinances, laws, regulations, or rules.\").[^8]

**B. Department of Justice Interpretations Explicitly Show That Title II
Applies to Local Zoning Enforcement Schemes.**

Consistent with title II\'s broad language and its legislative history,
the Department of Justice, in its title II implementing regulation and
other title II analyses, has interpreted title II to reach all actions
by public entities, including zoning enforcement actions.

The Department of Justice\'s regulation implementing title II repeats
the statute\'s general nondiscrimination provision that \"no qualified
individual with a disability shall . . . be excluded from participation
in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any public
entity.\" 28 C.F.R. § 35.130(a) (1994). The Department of Justice\'s
preamble to the regulation explains that \"title II applies to anything
a public entity does . . . . All governmental activities of public
entities are covered. . . .\" 28 C.F.R. pt. 35, App. A at 441-42.

The regulation enumerates several categories of specific activities that
constitute discrimination by public entities. 28 C.F.R. § 35.130. One of
these specific provisions requires public entities to make reasonable
modifications to their policies, practices, and procedures, where such
modifications are necessary to avoid discrimination on the basis of
disability. 28 C.F.R. § 35.130(b)(7).[^9] Commensurate with the Act,
this provision uses broad language to cover the widest possible range of
actions by public entities. Zoning enforcement actions, including the
enactment of ordinances, and any administrative processes, hearings, and
decisions by zoning boards, fall squarely within the category of
\"policies, practices, or procedures\" mentioned in the regulation.

The Title II TA Manual specifically uses zoning in an illustration of a
public entity\'s obligation to modify its policies, practices, and
procedures. It explains:

> A municipal zoning ordinance requires a set-back of 12 feet from the
> curb in the central business district. In order to install a ramp to
> the front entrance of a pharmacy, the owner must encroach on the
> set-back by three feet. Granting a variance in the zoning require-ment
> may be a reasonable modification of town policy.

TA Manual § II-3.6100 at 14. The TA Manual also makes clear that title
II reaches local laws and ordinances generally. The title II regulation
requires public entities to conduct a self-evaluation to assess, [inter
alia]{.underline}, all of their policies, practices, and procedures. 28
C.F.R. § 35.105(a). The TA Manual\'s explanation of the self-evaluation
explicitly recognizes that \"a public entity\'s policies and practices
are reflected in its laws, ordinances, regulations, administrative
manuals. . .\" TA Manual § II-8.1000 at 44. Discriminatory \"policies,
practices, and procedures must be modified,\" regardless of their form.
[Id.]{.underline}

**C. Judicial Interpretations Do Not Support Construing Title II as
Inapplicable to Zoning.**

Defendant cites several cases as indicating that title II is
inapplicable to zoning. However, none of the cases cited by Defendant
provide any analysis or rationale to support their decisions. This Court
should decline to follow them.[^10]

In [Oxford House, Inc. v. City of Albany]{.underline}, 155 F.R.D. 409,
410-11 (N.D.N.Y. 1994), the plaintiffs \"completely failed to cite any
authority\" to support their position. In considering the plaintiffs\'
motion for reconsideration, the court acknowledged that its decision
that title II did not apply to zoning was based simply on the lack of
legal argument presented by the plaintiffs. The court further
acknowledged that authorities submitted by the plaintiffs in support of
their reconsideration motion might, if timely presented, have led to a
different conclusion.

The conclusion reached by these courts is not only unsupported, but it
is plainly contrary to the broad statutory language, legislative
history, and implementing regulation of title II, none of which were
considered by the courts.

D. Construing Title II to Cover Zoning Is Consistent with the
Rehabilitation Act and Other Civil Rights Statutes.

Although very few cases have addressed this issue under title II, courts
have found zoning to be covered under related civil rights laws, most
notably section 504 of the Rehabilitation Act and the Fair Housing Act.

**1. Interpretations of Section 504 of the Rehabilitation Act.**

Title II was intended to incorporate all the protections of section 504
of the Rehabilitation Act and to extend those protections to cover all
activities of public entities. [See]{.underline} H.R. Rep. No. 485 (II),
101st Cong., 2d Sess. 151 (1990), [reprinted in]{.underline} 1990
U.S.C.C.A.N. 303, 434. Therefore, the fact that the Rehabilitation Act
covers zoning indicates that title II should be similarly interpreted.

Notably, Defendant does not challenge the Rehabilitation Act\'s
application to zoning. The Rehabilitation Act, in section 504, prohibits
discrimination on the basis of disability in any \"program or activity\"
of recipients of Federal financial assistance. 29 U.S.C. § 794 (1988 &
Supp. IV 1992). The Civil Rights Restoration Act made clear that
\"\[T\]he term \'program or activity\' and \'program\' means [all of the
operations of]{.underline} \[a recipient of federal funding\].\" 20
U.S.C. § 1687 (emphasis added). The phrase \"all of the operations of\"
demonstrates that section 504 applies to every action taken by an entity
receiving Federal financial assistance. Neither the Rehabilitation Act
nor the Civil Rights Restoration Act, nor their legislative histories,
contain any references indicating congressional desire to exempt zoning
enforcement from their coverage. In fact, congressional debates during
the enactment of the Civil Rights Restoration Act demonstrate that the
broad language was understood to cover zoning activities.[^11]

The few courts to address the issue have concluded that section 504
reaches zoning enforcement activities. [See, e.g., Sullivan v. City of
Pittsburgh]{.underline}, 811 F.2d 171, 181-83 (3d Cir. 1987), [cert.
denied]{.underline}, 484 U.S. 849 (1989) (court held that city\'s denial
of permit to rehabilitation center for recovering alcoholics violated
section 504).[^12] [Cf. Stewart B. McKinney Found. v. Town Planning &
Zoning Comm\'n of Fairfield]{.underline}, 790 F. Supp. 1197 (D. Conn.
1992) (court declined to rule on section 504 claim, because plaintiff
prevailed on Fair Housing claim).

2.  Interpretations of the Fair Housing Act.

Our analysis of title II is also consistent with judicial
interpretations of the Fair Housing Act, 42 U.S.C. §§ 3601 [et
seq.]{.underline} (1988 & Supp. IV 1992). Like title II, the Fair
Housing Act bars discrimination by using broad, general language, in
order to reach all aspects of the housing process in which
discrimination can occur. Courts, stressing Congress\' use of expansive
language, have interpreted the Fair Housing Act\'s general statutory
language to cover local zoning decisions, even though zoning was not
specifically mentioned in that Act. [See, e.g., Casa Marie, Inc. v.
Superior Court]{.underline}, 988 F.2d 252, 257 n. 6 (1st Cir. 1993)
(citing H.R. Rep. No. 711, 100th Cong., 2d Sess. 22(1988), [reprinted
in]{.underline} 1988 U.S.C.C.A.N. 2173, 2183); [South-Suburban Housing
Ctr. v. Greater South Suburban Bd. of Realtors]{.underline}, 935 F.2d
868, 882 (7th Cir. 1991) (en banc), [cert. denied]{.underline}, 502 U.S.
1074 (1992); [Southend Neighborhood Improvement Ass\'n v. County of St.
Clair]{.underline}, 743 F.2d 1207, 1209-10 (7th Cir. 1984); [United
States v. City of Black Jack]{.underline}, 508 F.2d 1179 (8th Cir.
1974), [cert. denied]{.underline}, 422 U.S. 1042 (1975).

When the Fair Housing Act was amended in 1988, among other things, to
prohibit discrimination on the basis of disability, Congress expressly
indicated that discriminatory zoning decisions were prohibited by the
statute. H.R. Rep. No. 711, 100th Cong., 2d Sess. 24 (1988), [reprinted
in]{.underline} 1988 U.S.C.C.A.N. 2173, 2185 (\"Congress intends that
the prohibition against discrimination against those with handicaps
apply to zoning decisions and practices\"). The 1988 amendments included
language similar to that in the title II regulation, prohibiting \"a
refusal to make reasonable accommodations in rules, policies, practices,
or services, when such accommodations may be necessary to afford such
person \[with a disability\] equal opportunity to use and enjoy a
dwelling . . . .\" 42 U.S.C. § 3604(f)(3)(B). Courts have confirmed that
that language authorizes challenges to zoning actions. [See, e.g., City
of Edmonds v. Washington State Building Code Council]{.underline}, 18
F.3d 802 (9th Cir. 1994), [cert. denied]{.underline}, 115 S. Ct. 417
(1994); [Casa Marie]{.underline}, 988 F.2d at 270 n. 22; [Potomac Group
Home Corp. v. Montgomery County, Md.]{.underline}, 823 F. Supp. 1285 (D.
Md. 1993). The similar language in title II should be read to provide
similar coverage.

CONCLUSION

For the foregoing reasons, the United States urges the Court to deny
Defendant\'s motion to dismiss Taylor\'s claims and to find that: (1)
Taylor has standing under title II to challenge discrimination on the
basis of its association with individuals with disabilities; (2) Taylor
has standing under section 504 to challenge discrimination on the basis
of its association with individuals with disabilities; and (3) Taylor\'s
challenge to Defendant\'s zoning action states a claim under title II.

Respectfully submitted,

JAMES M. SULLIVAN DEVAL L. PATRICK

Assistant United States Assistant Attorney General

Attorney Civil Rights Division

for the Western District

of North Carolina By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Carillon Building, Suite 1700 JOHN L. WODATCH

227 West Trade Street L. IRENE BOWEN

Charlotte, N.C. 28202 EVE L. HILL

\(704\) 344-6222 Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

> By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

HARVEY L. HANDLEY, III

SHARON BRADFORD FRANKLIN

Attorneys

Housing Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 65998

Washington, D.C. 20035-5998

\(202\) 514-4713

CERTIFICATE OF SERVICE

I, the undersigned attorney for the United States of America, do hereby
certify that on March [13]{.underline} , 1995, I personally caused to be
served upon the persons listed below, by first class mail, true and
correct copies of the foregoing United States\' Memorandum In Opposition
To Defendant\'s Motions to Dismiss Intervenor\'s Second and Fourth
Claims.

> Attorneys for Defendant:
>
> DeWitt F. McCarley
>
> David M. Smith
>
> Office of City Attorney
>
> City of Charlotte
>
> 600 East Fourth Street
>
> Charlotte, N.C. 28202
>
> Daniel G. Clodfelter
>
> Susan E. Rowell
>
> Meredith W. Holler
>
> Moore & Van Allen, P.L.L.C.
>
> NationsBank Corporate Center
>
> 100 North Tryon Street, Floor 47
>
> Charlotte, N.C. 28202-4003
>
> Attorneys for Intervenor-Plaintiff:
>
> Louis L. Lesesne, Jr.
>
> Lesesne & Connette
>
> 1001 Elizabeth Avenue, Suite 1-D
>
> Charlotte, N.C. 28204
>
> Leto Copeley
>
> Fontana, Fine & Copeley, P.A.
>
> 1121 West Main Street, Suite 200
>
> Durham, N.C. 27701

SO CERTIFIED this [13th]{.underline} day of March, 1995.

> By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> EVE L. HILL
>
> Attorney
>
> U.S. Department of Justice
>
> Civil Rights Division
>
> Disability Rights Section
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 307-0663

[^1]: ^?^ Defendant challenges Taylor\'s title II claim, arguing that
    title II does not apply to zoning. Defendant does not argue that
    section 504 is inapplicable to zoning.

[^2]: ^?^ The United States will not address Defendant\'s factual
    contention that Taylor\'s section 504 claim should be dismissed for
    lack of a sufficient \"nexus\" to Federal funding.

[^3]: ^?^ Defendant does not dispute that AIDS is a disability within
    the meaning of the ADA.

[^4]: ^?^ Because title II was intended to extend the protections of
    section 504 to non-federally funded entities, 42 U.S.C.§ 12134, the
    cases discussed [infra]{.underline} regarding section 504 also
    support applying title II to association claims. [See
    also]{.underline} H.R. Rep. No., 485 (II), 101st Cong., 2d Sess. 84,
    [reprinted in]{.underline} 1990 U.S.C.C.A.N. 303, 367.

[^5]: ^?^ Defendant concedes the breadth of coverage of very

    similar language in the Fair Housing Act. Defendant\'s Memorandum In
    Support, p. 7 (discussing the \"expansive language in the Fair
    Housing Act, which provides a right of action to any \'aggrieved
    person.\'\").

[^6]: ^?^ Notably, such broad standing must extend at least as

    far as the Fair Housing Act, which, Defendant concedes, covers
    entities injured by discrimination on the basis of disability.
    Defendant\'s Memorandum In Support, p. 7.

[^7]: ^?^ 42 U.S.C. § 12132. As a remedial statute, the ADA

    \"must be broadly construed to effectuate its purposes.\" [Kinney v.
    Yerusalim]{.underline}, 812 F. Supp. 547, 551 (E.D. Pa. 1993),
    [aff\'d]{.underline}, 9 F.3d 1067 (3d Cir. 1993), [cert.
    denied]{.underline}, 114 S. Ct. 1545 (1994).

[^8]: ^?^ It is also evident from other language in the ADA that

    the Act was intended to reach, and, in some cases, preempt local
    ordinances. Section 103 states that: \"Nothing in this \[Act\] shall
    be construed to preempt, modify, or amend any State, county, or
    local law, ordinance, or regulation applicable to local food
    handling which is designed to protect public health from individuals
    who pose a significant risk to the health or safety of others. . .
    .\" 42 U.S.C. § 12113(d)(3). [See also]{.underline} H.R. Conf. Rep.
    No. 596, 101st Cong., 2d Sess. 61 (1990), [reprinted in]{.underline}
    1990 U.S.C.C.A.N. 565, 570. This section would have been unnecessary
    if the ADA were not otherwise intended to affect local ordinances.

[^9]: ^?^ As discussed [supra]{.underline} at 5-6, the Department of
    Justice\'s

    regulation is entitled to controlling weight unless it is
    \"arbitrary, capricious, or manifestly contrary to the statute.\"
    [Chevron U.S.A., Inc. v. Natural Resources Defense Council,
    Inc.]{.underline}, 467 U.S. 837, 844 (1984). In addition, the
    Department of Justice\'s preamble and Title II Technical Assistance
    Manual interpreting its regulation are entitled to controlling
    weight unless they are \"plainly erroneous or inconsistent with the
    regulation.\" [Thomas Jefferson Univ. v. Shalala]{.underline}, 114
    S. Ct. 2381, 2386 (1994).

[^10]: ^?^ In [Burnham v. City of Rohnert Park]{.underline}, 1992 WL
    672965 (N.D. Cal. 1992) (unpublished opinion), [Moyer v. Lower
    Oxford Township]{.underline}, 1993 WL 5489 (E.D. Pa. 1993)
    (unpublished opinion), and [Kessler]{.underline}, 1995 WL 42916, the
    courts literally provided no discussion of the basis for their
    conclusion that zoning did not constitute a program, service, or
    activity. In [Canaan Ministries, Inc. v. Town of
    Cheektowaga]{.underline}, 1994 WL 584707 (W.D.N.Y. 1994)
    (unpublished opinion), the court did not undertake any analysis at
    all, but simply accepted the plaintiff\'s concession that the ADA
    would not apply.

[^11]: ^?^ During consideration of the Civil Rights Restoration Act,
    Senator Hatch stated:

    > The zoning function of local government will likely be covered by
    > these laws in ways never before achieved. . . . \[I\]t will be
    > difficult, if not impossible, for localities and states to escape
    > total coverage under the bill, including a locality\'s zoning
    > function. . . .

    134 Cong. Rec. 4259, S2422 (March 17, 1988) (attached).

[^12]: ^?^ The district court opinion in [Sullivan]{.underline} has a
    more extended discussion of the applicability of Section 504.
    [See]{.underline} 620 F. Supp. 935, 946 (W.D. Pa. 1985).