IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

)

LAKES REGION CONSUMER ADVISORY )

BOARD (Cornerbridge) )

Plaintiff, )

)

v\. ) Case No.: 93-338-M

)

)

CITY OF LACONIA, )

NEW HAMPSHIRE )

)

Defendant. )

)

)

[                                  ]{.underline} )

[                                                                ]{.underline}

**MEMORANDUM OF THE UNITED STATES**

**AS [AMICUS CURIAE]{.underline}**

[                                                                ]{.underline}

**[TABLE OF CONTENTS]{.underline}**

**TABLE OF AUTHORITIES** ii

**STATEMENT OF THE CASE** 1

**ARGUMENT** 2

> **I. TITLE II OF THE ADA APPLIES TO ALL ZONING ENFORCEMENT ACTIVITIES
> UNDERTAKEN BY PUBLIC ENTITIES** 2
>
> A. The text and legislative history of Title II Demonstrate Intent to
> Cover Local Zoning Enforcement Schemes 4
>
> B. Department of Justice Interpretations Explicitly Show That Title II
> Applies to Local Zoning Enforcement Schemes 7
>
> C. Construing Title II to Cover Zoning is Consistent With Judicial
> Interpretations of Other Civil Rights Statutes 12
>
> **II. SECTION 504 OF THE REHABILITATION ACT APPLIES TO ALL ZONING
> ENFORCEMENT ACTIVITIES OF PUBLIC ENTITIES THAT RECEIVE FEDERAL
> FINANCIAL ASSISTANCE** 14

**CONCLUSION** 16

**[TABLE OF AUTHORITIES]{.underline}**

**CASES:**

[Burnham v. City of Rohnert Park]{.underline}, No. C92-1439SC, 1992 U.S.
Dist. LEXIS 8540 (N.D. Cal. May 18, 1992) 10, 11

[Casa Marie, Inc. v. Superior Court]{.underline}, 988 F.2d 252 (1st Cir.
1993) 12, 13

[Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837 (1984) 7

[City of Peekskill v. Rehabilitation Support Servs., Inc.]{.underline},
806 F. Supp. 1147 (S.D.N.Y. 1992) 11

[City of St. Joseph v. Preferred Family Healthcare]{.underline}, 859
S.W.2d 723 (Mo. Ct. App. 1993) 16

[Finley v. Giacobbe]{.underline}, 827 F. Supp. 215 (S.D.N.Y. 1993) 4

[Kinney v. Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993) 8

[Kinney v. Yerusalim]{.underline}, 812 F. Supp. 547 (E.D. Pa. 1993),
[aff\'d]{.underline}, 9 F.3d 1067 (3d Cir. 1993) 6

[Metropolitan Housing Dev. Corp. v. Village of Arlington
Heights]{.underline}, 558 F.2d 1283 (7th Cir. 1977) (on remand), [cert.
denied]{.underline}, 434 U.S. 1025 (1978) 12

[Moyer v. Lower Oxford Township]{.underline}, No. CIV.A. 92-3348, 1993
WL 5489 (E.D. Pa. Jan. 6, 1993) 10, 11

[Noland v. Wheatley]{.underline}, 835 F. Supp. 476 (N.D. Ill. 1993) 4, 8

[Oxford House, Inc. v. City of Albany]{.underline}, 819 F. Supp. 1168
(N.D.N.Y. 1993) 13

[Oxford House, Inc. v. City of Virginia Beach]{.underline}, 825 F. Supp.
1251 (E.D. Va. 1993) 11

[Petersen v. University of Wis. Bd. of Regents]{.underline}, 818 F.
Supp. 1276 (W.D. Wis. 1993) 4, 8

[Potomac Group Home Corp. v. Montgomery Co., Md.]{.underline}, 823 F.
Supp. 1285 (D. Md. 1993) 13

[Schroeder v. City of Chicago]{.underline}, 927 F.2d 957 (7th Cir. 1991)
15

[Southend Neighborhood Improvement Ass\'n v. County of St.
Clair]{.underline}, 743 F.2d 1207 (7th Cir. 1984) 12

[South-Suburban Housing Ctr. v. Greater South Suburban Bd. of
Realtors]{.underline}, 935 F.2d 868 (7th Cir. 1991) (en banc) 12

[Stewart B. McKinney Found. v. Town Planning & Zoning Comm\'n of
Fairfield]{.underline}, 190 F. Supp. 1197 (D. Conn. 1992) 16

[Stinson v. United States]{.underline}, 113 S. Ct. 1913 (1993) 8

[Sullivan v. City of Pittsburgh]{.underline}, 811 F.2d 171 (3d Cir.
1987), [cert. denied]{.underline}, 484 U.S. 849 (1989) 16

[Udall v. Tallman]{.underline}, 380 U.S. 1 (1965) 8

[United States v. City of Black Jack]{.underline}, 508 F.2d 1179 (8th
Cir. 1974), [cert. denied]{.underline}, 422 U.S. 1042 (1975) 12

[United States v. City of Parma]{.underline}, 661 F.2d 562 (6th Cir.
1981), [cert. denied]{.underline}, 456 U.S. 926 (1982) 12

[United States v. Larionoff]{.underline}, 431 U.S. 864 (1977) 8

**STATUTES:**

Americans with Disabilities Act of 1990

> 42 U.S.C. § 12101 (Supp. III 1992) 2
>
> 42 U.S.C. § 12101(a)(2),(3) (Supp. III 1992) 3
>
> 42 U.S.C. § 12101(a)(5) (Supp. III 1992) 3
>
> 42 U.S.C. § 12101(b)(1) (Supp. III 1992) 3
>
> 42 U.S.C. § 12113(d)(3) (Supp. III 1992) 7
>
> 42 U.S.C. § 12131 [et]{.underline} [seq]{.underline}. (Supp. III 1992)
> 1
>
> 42 U.S.C. § 12131(1) (Supp. III 1992) 5
>
> 42 U.S.C. § 12132 (Supp. III 1992) 5, 6
>
> 42 U.S.C. § 12134(a) (Supp. III 1992) 7
>
> 42 U.S.C. § 12206(c)(3) (Supp. III 1992) 8

Fair Housing Act

> 42 U.S.C. § 3601 [et]{.underline} [seq]{.underline}. (1988 & Supp. III
> 1992) 12
>
> 42 U.S.C. § 3604(a) (1988 & Supp. III 1992) 12
>
> 42 U.S.C. § 3604(f)(3)(B) (1988 & Supp. III 1992) 13
>
> 42 U.S.C. § 3610(g)(2)(C) (1988) 13

Rehabilitation Act of 1973

> 29 U.S.C. § 701 (1988) 14
>
> 29 U.S.C. § 794 (as amended) (1988 & Supp. IV 1993) 1, 14
>
> 29 U.S.C. § 794(b)(1) (Supp. IV 1993) 15

Civil Rights Restoration Act

> 20 U.S.C. § 1687 (1988) 14, 15
>
> Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat.
> 28, 28 (1987) (codified as 20 U.S.C. § 1687\
> note) 15

**REGULATIONS:**

28 C.F.R. App. A (1993); 56 Fed. Reg. 35694, 35696-35716\
(1991) 9

28 C.F.R. § 35.105(a) (1993); 56 Fed. Reg. 35694, 35718\
(1991) 10

28 C.F.R. § 35.130 (1993), 56 Fed. Reg. 35694, 35718-19\
(1991) 8, 9

28 C.F.R. § 35.130(b)(7) (1993); 56 Fed. Reg. 35694, 35718-19 (1991) 9

**LEGISLATIVE HISTORY:**

H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 565 7

H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 303 4, 6

H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 445 3

H.R. Rep. No. 711, 100th Cong., 2d Sess. (1988) [reprinted
in]{.underline} 1988 U.S.C.C.A.N. 2173 13

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 4

S. Rep. No. 64, 100th Cong., 2d Sess. (1988), [reprinted in]{.underline}
1988 U.S.C.C.A.N. 3 14

134 Cong. Rec. 4259 (1988) 16

134 Cong. Rec. 9606 (1988) 7

**RULES:**

1st Cir. R. 36.2(b)(6) 11

3rd Cir. R. App. I, IOP 5.6 11

9th Cir. R. 36-3 11

**MISCELLANEOUS:**

U.S. Department of Justice, The Americans with Disabilities Act \--
Title II Technical Assistance Manual (1993) 8, 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

)

LAKES REGION CONSUMER ADVISORY )

BOARD (Cornerbridge) )

Plaintiff, )

)

v\. ) Case No.: 93-338-M

)

)

CITY OF LACONIA, )

NEW HAMPSHIRE )

)

Defendant. )

)

)

[                                  ]{.underline} 

[                                                                ]{.underline}

**MEMORANDUM OF THE UNITED STATES**

**AS [AMICUS CURIAE]{.underline}**

[                                                                ]{.underline}

**STATEMENT OF THE CASE**

This action was brought by the Lakes Region Consumer Advisory Board
(Cornerbridge) (\"LRCAB\") against the City of Laconia, New Hampshire
(\"Laconia\"). LRCAB alleges that Laconia violated title II of the
Americans with Disabilities Act of 1990 (\"ADA\"), 42 U.S.C. § 12131
[et]{.underline} [seq]{.underline}. (Supp. III 1992) (\"Title II\"), and
section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (as
amended) (1988 & Supp. IV 1993) (\"Section 504\"), by denying LRCAB a
special use permit to operate Cornerbridge, a drop-in and support center
for persons with mental illness who are beneficiaries of LRCAB\'s other
mental health programs. LRCAB claims that Laconia\'s denial was
discriminatorily based on the mental disabilities of the individuals
served by the Cornerbridge facility. Laconia claims its Zoning Board of
Appeals (\"ZBA\") denied the permit because it concluded that
Cornerbridge was a private club, a use the ZBA claims is not permitted
in the Business-Central zone. LRCAB is also challenging the permit
denial under State law in an action filed in Belknap County Superior
Court.

This Court issued a pretrial order on November 17, 1993, expressing
concern about several issues, including whether the ADA or the
Rehabilitation Act apply to local zoning enforcement activities and
whether the Court should suspend judgment on the merits of this action
until the State court litigation is concluded. The United States files
this memorandum of law as [amicus curiae]{.underline} in support of
LRCAB\'s claims that: (1) Title II applies to all zoning enforcement
activities of public entities; and (2) Section 504 applies to all zoning
enforcement activities of public entities or subdivisions that receive
or are extended Federal financial assistance.

**ARGUMENT**

I. **[TITLE II OF THE ADA APPLIES TO ALL ZONING ENFORCEMENT ACTIVITIES
UNDERTAKEN BY PUBLIC ENTITIES]{.underline}.**

The ADA was enacted in 1990 to eliminate pervasive societal
discrimination against individuals with disabilities. 42 U.S.C. § 12101
(Supp. III 1992). Congress found that individuals with disabilities had
historically been subject to isolation and segregation, and had been
discriminated against in \"such critical areas as . . . recreation, . .
. health services, . . . and access to public services.\"
[Id.]{.underline} § 12101(a)(2),(3). This discrimination had taken
various forms: both outright intentional exclusion as well as failures
to make changes in existing practices and facilities, such that persons
with disabilities are relegated to \"lesser services, programs,
activities, benefits, . . . or other opportunities.\" [Id.]{.underline}
§ 12101(a)(5). Congress noted that persons with disabilities \"are
notably underprivileged and disadvantaged,\" and that they \"are much
poorer, have far less education, have less social and community life,
participate much less often in social activities\" than do persons
without disabilities, and that these disadvantages are due to
\"discriminatory policies, based on unfounded, outmoded stereotypes and
perceptions, and deeply imbedded prejudices.\" H.R. Rep. No. 485 (III),
101st Cong., 2d Sess. 23 (1990), [reprinted in]{.underline} 1990
U.S.C.C.A.N. 445, 447-48 (hereinafter \"House Report Part III\").

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) (Supp.
III 1992). The ADA\'s coverage is accordingly broad \-- prohibiting
discrimination on the basis of disability in employment, State and local
government programs, services, and activities, public and private
transportation systems, telecommunications, public accommodations, and
commercial facilities.

The ADA was meant to effect a considerable change in the ways in which
private businesses and State and local governments treat and serve
individuals with disabilities. It established new Federal civil rights,
to be enforced Federally. Congress noted that \"there is a need to
ensure that the Federal Government plays a central role in enforcing
these standards on behalf of individuals with disabilities.\" S. Rep.
No. 116, 101st Cong., 1st Sess. 20 (1989) (hereinafter \"Senate
Report\"); [see]{.underline} H.R. Rep. No. 485 (II), 101st Cong., 2d
Sess. 47-48, [reprinted in]{.underline} 1990 U.S.C.C.A.N. 303, 329-30
(hereinafter \"House Report Part II\"). Congress stressed that Federal
intervention was critical, because \"State laws are inadequate to
address the pervasive problems of discrimination that people with
disabilities are facing.\"[^1] Congress chose not to require the
exhaustion of State or administrative remedies prior to the issuance of
Federal judicial relief under Title II.[^2]

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

Title II provides broad protections to individuals with disabilities in
the provision of public services. It defines a covered \"public entity\"
as: \"(A) any State or local government; (B) any department, agency,
special purpose district, or other instrumentality of a State or States
or local government . . . .\" 42 U.S.C. § 12131(1) (Supp. III 1992). The
defendant City of Laconia, and its Zoning Board of Appeals, are
unquestionably public entities covered by Title II.

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} § 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 nondiscrimination command 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.

Indeed, 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.[^3] This is surely true in the
context of zoning decisions and ordinances which govern the use of
property by all residents.

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. In fact, the House Report states just that:

> 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}.

House Report Part II at 84, [reprinted in]{.underline} 1990 U.S.C.C.A.N.
at 357 (emphasis added). The House Report reaffirms this notion later,
stating:

> Title II of the bill makes [all actions]{.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.]{.underline} at 151, [reprinted in]{.underline} 1990 U.S.C.C.A.N.
at 434 (emphasis added).

Representative Tony Coelho, the ADA\'s principal sponsor in the House of
Representatives, explained that the ADA was meant to prohibit
discrimination in both the enactment of local ordinances and in their
enforcement. 134 Cong. Rec. 9606 (1988) (Title II \"will prohibit
discriminatory activities of State and local governments resulting from
ordinances, laws, regulations, or rules.\").[^4]

**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.[^5]

The Department of Justice\'s Title II implementing regulation (the
\"Regulation\") repeats the statute\'s general nondiscrimination
provision, that \"no qualified individual with a 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 any public entity.\" 28 C.F.R. § 35.130 (1993), 56
Fed. Reg. 35694, 35718-19 (1991). The Regulation\'s preamble explains
that \"\[a\]ll governmental activities of public entities are covered,
even if they are carried out by contractors.\" 28 C.F.R. App. A (1993);
56 Fed. Reg. 35694, 35696 (1991).

The Regulation enumerates several categories of specific prohibitions of
activities that constitute discrimination by public entities. 28 C.F.R.
§ 35.130 (1993), 56 Fed. Reg. 35694, 35718-19 (1991). One of these
specific prohibitions 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) (1993); 56 Fed. Reg. 35694,
35718-19 (1991). 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. It is this
provision of the Regulation Laconia is alleged to have violated when it
denied LRCAB the special use permit to operate the Cornerbridge
facility. [See]{.underline} Complaint ¶¶ 30-34.

The TA Manual specifically uses a zoning example as one 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 requirement
> may be a reasonable modification of town policy.

TA Manual at 14.[^6] In its Answer (¶ 44), Laconia asserts that this
illustration fails to demonstrate that Title II covers [all]{.underline}
zoning activities. Laconia suggests that Title II applies only to zoning
decisions concerning facilities open to the general public, and not to
facilities like Cornerbridge, which serve a more limited clientele. This
argument finds no support in the broad language of the statute or the
Regulation. Title II makes no distinctions based on the portion of the
public served by a program, service, or activity.[^7]

So far as we know, only two courts, in unpublished decisions, have
addressed the issue of whether Title II applies to zoning enforcement.
[See]{.underline} [Moyer v. Lower Oxford Township]{.underline}, No.
CIV.A. 92-3348, 1993 WL 5489 (E.D. Pa. Jan. 6, 1993); [Burnham v. City
of Rohnert Park]{.underline}, No. C92-1439SC, 1992 U.S. Dist. LEXIS 8540
(N.D. Cal. May 18, 1992).[^8] Neither opinion provides any authority or
analysis of its determination that Title II does not cover zoning. The
court in [Burnham]{.underline} refused to enjoin defendant\'s zoning
enforcement decision, on the grounds that no public programs under Title
II were at issue. [Id.]{.underline} at \*10 n.9. The court cited no
authority and provided no analysis for this point. [Id.]{.underline}
Similarly, in [Moyer]{.underline}, the court denied plaintiff\'s ADA
claim, stating only that the \"\[p\]laintiff also cites no authority
indicating that the ADA should be applied in a zoning context.\" 1993 WL
at \*2. The [Moyer]{.underline} Court\'s only authority was the
unpublished [Burnham]{.underline} decision. [Id.]{.underline}[^9] We
urge this Court to reject the [Moyer]{.underline} and
[Burnham]{.underline} determinations which, as we have demonstrated
above, find no basis in the statutory or regulatory language or the
legislative history and purpose of Title II.

**C. Construing Title II to Cover Zoning is Consistent With Judicial
Interpretations of Other Civil Rights Statutes.**

Our analysis of Title II is consistent with the courts\' interpretations
of other civil rights laws. Challenges to zoning actions have frequently
been brought under the Fair Housing Act, 42 U.S.C. § 3601
[et]{.underline} [seq]{.underline}. (1988 & Supp. III 1992). The Fair
Housing Act makes it unlawful \"\[t\]o refuse to sell or rent . . . or
to refuse to negotiate . . . or otherwise make unavailable or deny, a
dwelling to any person because of race, color, religion, sex, familial
status, or national origin.\" [Id.]{.underline} § 3604(a). 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]{.underline},
[e.g.]{.underline}, [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 Surburban Bd.
of Realtors]{.underline}, 935 F.2d 868, 882 (7th Cir. 1991) (en banc);
[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 Parma]{.underline}, 661 F.2d 562, 571 (6th Cir. 1981),
[cert. denied]{.underline}, 456 U.S. 926 (1982); [Metropolitan Housing
Dev. Corp. v. Village of Arlington Heights]{.underline}, 558 F.2d 1283,
1289-1290 (7th Cir. 1977) (on remand), [cert. denied]{.underline}, 434
U.S. 1025 (1978); [United States v. City of Black Jack]{.underline}, 508
F.2d 1179 (8th Cir. 1974), [cert. denied]{.underline}, 422 U.S. 1042
(1975).[^10]

When the Fair Housing Act was amended in 1988, among other things, to
prohibit discrimination on the basis of disability, Congress expressly
indicated its intent that zoning decisions adversely affecting persons
with disabilities be 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. The 1988 Amendments included language similar to that in the
Title II Regulation cited above. Section 3604(f)(3)(B) of the Act
prohibits \"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 . . . .\" The courts have determined that
zoning actions can be challenged under that provision as well.
[See]{.underline}, [e.g.]{.underline}, [Casa Marie]{.underline}, 988
F.2d at 270 n.22; [Potomac Group Home Corp. v. Montgomery Co.,
Md.]{.underline}, 823 F. Supp. 1285 (D. Md. 1993); [Oxford House, Inc.
v. City of Albany]{.underline}, 819 F. Supp. 1168, 1185 (N.D.N.Y. 1993).

**II. [SECTION 504 OF THE REHABILITATION ACT APPLIES TO ALL ZONING
ENFORCEMENT ACTIVITIES OF PUBLIC ENTITIES THAT RECEIVE FEDERAL FINANCIAL
ASSISTANCE]{.underline}.**

Like the ADA, section 504 of the Rehabilitation Act[^11] (\"Section
504\") uses expansive language and was intended to cover every action,
including zoning enforcement actions, taken by public entities or
subdivisions that receive or are extended Federal financial assistance.
The Rehabilitation Act of 1973, an earlier disability rights law, was
enacted to discourage the segregation of persons with disabilities, and
to expand their opportunities. 29 U.S.C. § 701 (1988). To that end, the
statute established Federal grant programs to benefit persons with
disabilities, and, in Section 504, it prohibits discrimination on the
basis of disability in any \"program or activity\" of recipients of
Federal financial assistance. [Id.]{.underline} § 794.

Congress clarified the definition of \"program or activity\" in 1988 in
the Civil Rights Restoration Act, to overturn an unduly narrow
interpretation of that phrase by the Supreme Court. 20 U.S.C. § 1687
(1988); S. Rep. No. 64, 100th Cong., 2d Sess. 1-2 (1988), [reprinted
in]{.underline} 1988 U.S.C.C.A.N. 3, 3-4. The clarified definition
provides that:

> \[T\]he term \'program or activity\' and \'program\' means [all of the
> operations of]{.underline}\--
>
> (1)(A) a department, agency, special purpose district, or other
> instrumentality of a State or of a local government; or
>
> \(B\) the entity of such State or local government that distributes
> such assistance and each such department or agency (and each other
> State or local government entity) to which the assistance is extended,
> in the case of assistance to a State or local government;

20 U.S.C. § 1687 (1988) (emphasis added). By using the phrase \"all of
the operations of,\" the definition demonstrates that Section 504
applies to every action taken by an entity receiving Federal financial
assistance.[^12] 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. The Civil Rights Restoration Act stresses \"institution-wide\"
coverage,[^13]\
and congressional debates during the enactment of the Civil Rights
Restoration Act demonstrate that the broad language was understood to
cover zoning activities.[^14]

Those few courts to address the issue have concluded that Section 504
reaches zoning enforcement activities. [E.g.]{.underline}, [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);[^15] [City of St. Joseph v. Preferred Family
Healthcare]{.underline}, 859 S.W.2d 723, 725-26 (Mo. Ct. App. 1993)
(Section 504 applied to city\'s denial of permit for group home);
[cf.]{.underline} [Stewart B. McKinney Found. v. Town Planning & Zoning
Comm\'n of Fairfield]{.underline}, 190 F. Supp. 1197 (D. Conn. 1992)
(court declined to rule on merits of Section 504 claim, because
plaintiff prevailed on Fair Housing claim).

**[CONCLUSION]{.underline}**

For the foregoing reasons, we urge this Court to find that: (1) Title II
applies to all zoning enforcement activities of public entities; and (2)
Section 504 applies to all zoning enforcement activities of public
entities or subdivisions that receive or are extended Federal financial
assistance.

Respectfully submitted,

PAUL M. GAGNON JAMES P. TURNER

United States Attorney Acting Assistant Attorney General

For the District of Civil Rights Division

New Hampshire

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

GRETCHEN LEAH WITT JOHN L. WODATCH

Assistant United States JOAN A. MAGAGNA

Attorney BEBE NOVICH

For the District of Attorneys

New Hampshire Public Access Section

Chief, Civil Division Civil Rights Division

55 Pleasant Street U.S. Department of Justice

Room 312 P.O. Box 66738

Concord, New Hampshire 03301 Washington, D.C. 20035-6738

\(603\) 225-1552 (202) 307-0663

[^1]: ^?^ The Senate Report declared:

    > \[E\]nough time has . . . been given to the States to legislate
    > what is right. Too many States, for whatever reason, still
    > perpetuate confusion. It is time for Federal action. . . .
    > \[E\]xisting States laws do not adequately counter such acts of
    > discrimination.\" Senate Report at 18.

[^2]: ^?^ [See]{.underline} [Noland v. Wheatley]{.underline}, 835 F.
    Supp. 476, 482 (N.D. Ill. 1993); [Finley v. Giacobbe]{.underline},
    827 F. Supp. 215, 219 (S.D.N.Y. 1993); [Petersen v. University of
    Wis. Bd. of Regents]{.underline}, 818 F. Supp. 1276 (W.D. Wis.
    1993).

[^3]: ^?^ 42 U.S.C. § 12132 (Supp. III 1992). 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).

[^4]: ^?^ 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) (Supp. III 1992); [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 was not otherwise intended to affect
    local ordinances.

[^5]: ^?^ The Department of Justice issued its Title II regulation (28
    C.F.R. Part 35) pursuant to statutory mandate. 42 U.S.C. § 12134(a)
    (Supp. III 1992). Accordingly, the regulation 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); [Noland v. Wheatley]{.underline}, 835 F. Supp. 476, 483
    (N.D. Ind. 1993) (applying [Chevron]{.underline} to give controlling
    weight to Department of Justice interpretations of Title II of the
    ADA); [see]{.underline}, [e.g.]{.underline}, [Kinney v.
    Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993) (relying on
    Justice Department interpretations of Title II); [Petersen v.
    University of Wis. Bd. of Regents]{.underline}, 818 F. Supp. 1276,
    1279 (W.D. Wis. 1993) (same).

    Also pursuant to statutory directive, the Department of Justice
    published its Title II Technical Assistance Manual (\"TA Manual\")
    to assist individuals with disabilities and covered entities in
    understanding and complying with the statute and the regulation. 42
    U.S.C. § 12206(c)(3) (Supp. III 1992); U.S. Department of Justice,
    The Americans with Disabilities Act \-- Title II Technical
    Assistance Manual (1993) (\"TA Manual\"). As an agency\'s
    interpretation of its own regulation, the analysis in the TA Manual
    must be given \`controlling weight unless it is plainly erroneous or
    inconsistent with the regulation.\'\" [Stinson v. United
    States]{.underline}, 113 S. Ct. 1913, 1919 (1993) (quoting [Bowles
    v. Seminole Rock & Sand Co.]{.underline}, 325 U.S. 410, 414 (1945));
    [see]{.underline} [United States v. Larionoff]{.underline}, 431 U.S.
    864, 872-73 (1977); [Udall v. Tallman]{.underline}, 380 U.S. 1,
    16-17 (1965); [cf.]{.underline} [Noland]{.underline}, 835 F. Supp.
    at 483 (relying on TA Manual\'s interpretation of Title II);
    [Petersen]{.underline}, 818 F. Supp. at 1278 (same).

    For the Court\'s convenience, copies of the Regulation, as published
    in the Federal Register, and the TA Manual, are attached as Exhibits
    A and B, respectively. Citations to the Regulation will include
    Federal Register references.

[^6]: ^?^ The TA Manual also indicates that Title II reaches local
    ordinances generally. The Regulation requires public entities to
    create an ADA self-evaluation plan, to assess all of their policies,
    practices, and procedures. 28 C.F.R. § 35.105(a) (1993); 56 Fed.
    Reg. 35694, 35718 (1991). The TA Manual\'s explanation of the
    self-evaluation requirement states that \"\[n\]ormally, a public
    entity\'s policies and practices are reflected in its laws,
    ordinances, regulations, administrative manuals . . . . Other
    practices, however, may not be recorded and may be based on local
    custom.\" TA Manual at 44. Thus, the Title II requirement for
    modification of policies, practices, and procedures, and the rest of
    Title II, was intended to apply to local laws, ordinances,
    regulations, and customs.

[^7]: ^?^ Laconia\'s other arguments in paragraph 44 of its Answer do
    not address whether Title II generally applies to zoning enforcement
    decisions, but rather claim that Laconia\'s zoning decision did not
    violate the statute because it did not discriminate on the basis of
    disability.

[^8]: ^?^ The Court of Appeals for the First Circuit has\
    recognized the limited value of unpublished opinions.
    [See]{.underline} 1st Cir. R. 36.2(b)(6) (unpublished decisions may
    not be cited). The courts for the circuits in which those decisions
    were rendered both reject unpublished decisions as having no
    precedential value. 3rd Cir. R. App. I, IOP 5.6; 9th Cir. R. 36-3.

[^9]: ^?^ The only published opinion that mentions the issue states in
    dictum, that a city\'s actions to prevent housing for persons with
    mental disabilities may violate the ADA. [City of Peekskill v.
    Rehabilitation Support Servs., Inc.]{.underline}, 806 F. Supp. 1147,
    1156 (S.D.N.Y. 1992); [see]{.underline} [also]{.underline} [Oxford
    House, Inc. v. City of Virginia Beach]{.underline}, 825 F. Supp.
    1251, 1264-65 (E.D. Va. 1993) (court declined to address the issue
    of whether the ADA or the Rehabilitation Act apply to zoning
    enforcement).

[^10]: ^?^ In fact, the statute\'s administrative enforcement provision
    expressly mentions zoning, indicating that Congress intended the
    general nondiscrimination provision to cover zoning.
    [See]{.underline} 42 U.S.C. § 3610(g)(2)(C) (1988) (\"If the
    Secretary determines that the matter involves the legality of any
    State or local zoning or other land use law or ordinance, the
    Secretary shall immediately refer the matter to the Attorney General
    . . . .\").

[^11]: ^?^ 29 U.S.C. § 794 (1988 & Supp. IV 1993).

[^12]: ^?^ Laconia is incorrect in claiming (Answer ¶¶ 36 & 48) that
    Federal financial assistance must be used directly for zoning board
    activities for those activities to be covered by Section 504. The
    zoning board\'s activities are covered so long as the City
    department that includes zoning activities receives or distributes
    Federal funds. [See]{.underline} 29 U.S.C. § 794(b)(1) (Supp. IV
    1993); [Schroeder v. City of Chicago]{.underline}, 927 F.2d 957, 962
    (7th Cir. 1991).

[^13]: ^?^ Civil Rights Restoration Act of 1987, Pub. L. No. 100-259,
    102 Stat. 28, 28 (1987) (codified as 20 U.S.C. § 1687 note).
    (\"legislative action is necessary to restore the prior consistent
    and long-standing executive branch interpretation and [broad,
    institution-wide]{.underline} application of those laws\") (emphasis
    added).

[^14]: ^?^ 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. . . . Thus, for example, zoning requirements falling
    > with a disproportionate impact on a particular minority group can
    > be struck down, even if they were not adopted for a discriminatory
    > purpose. 134 Cong. Rec. 4259 (1988).

[^15]: ^?^ 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).