UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

MICHAEL KENNEDY,

Plaintiff, **MEMORANDUM**

**OF LAW**

-against-

VINCENT FITZGERALD, GUY AND NANCY

EASTER, BASKIN-ROBBINS U.S.A., CO., and 00-cv-0132

CITY OF SYRACUSE, NEW YORK, (HGM/GJD)

Defendants.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**UNITED STATES' MEMORANDUM OF LAW AS [AMICUS]{.underline}
[CURIAE]{.underline}**

**IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS**

**AND/OR FOR SUMMARY JUDGMENT**

BILL LANN LEE

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

THOMAS J. MARONEY RENEE M. WOHLENHAUS, Deputy Chief

United States Attorney

Northern District of New York M. CHRISTINE FOTOPULOS

Disability Rights Section

WILLIAM H. PEASE, Civil Chief Civil Rights Division

Assistant United States Attorney U.S. Department of Justice

100 South Clinton Street P.O. Box 66738

Syracuse, NY 13261-7198 Washington, D.C. 20035

\(315\) 448-0672 (202) 305-7475

**TABLE OF CONTENTS**

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1

ARGUMENT 3

> I. THE CITY OF SYRACUSE IS OBLIGATED UNDER TITLE II AND SECTION 504 TO
> MAKE REASONABLE MODIFICATIONS TO ITS ZONING POLICIES IN ORDER TO AVOID
> DISCRIMINATION AGAINST PERSONS WITH DISABILITIES 3
>
> II\. THE PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO STATE A CLAIM THAT
> A MODIFICATION TO THE CITY'S POLICY IN THIS CASE IS REASONABLE AND
> WOULD NOT FUNDAMENTALLY ALTER THE CITY'S ZONING PROGRAM 6
>
> III\. THE REQUIREMENT THAT THE CITY MODIFY ITS ZONING POLICY IN ORDER
> TO AVOID DISCRIMINATION DOES NOT EFFECT AN UNCONSTITUTIONAL TAKING OF
> PRIVATE PROPERTY FOR PUBLIC USE WITHOUT JUST COMPENSATION 8
>
> IV\. THE CITY MAY BE LIABLE FOR DAMAGES UNDER TITLE II AND SECTION 504
> EVEN IN THE ABSENCE OF ANY DISCRIMINATORY ANIMUS TOWARDS PERSONS WITH
> DISABILITIES 13

CONCLUSION 15

**TABLE OF AUTHORITIES**

**Cases**

**Supreme Court**

[Armstrong v. United States]{.underline}

364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960) 10

[Canton v. Harris]{.underline}

489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) 15

[Dolan v. City of Tigard]{.underline}

512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) 8-9

[First English Evangelical Lutheran Church of Glendale v. County of Los
Angeles]{.underline}

482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) 9

[Heart of Atlanta Motel v. United States]{.underline}

379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) 13

[Loretto v. Teleprompter Manhattan CATV Corporation]{.underline}

458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) 10-12

[Lucas v. South Carolina Coastal Council]{.underline}

505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) 10-12

[Nollan v. California Coastal Commission]{.underline}

483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) 11

[Olmstead v. L.C.]{.underline}

527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) 4

[Penn Central Transportation Co. v. City of New York]{.underline}

438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) 12

[Preseault v. Interstate Commerce Commission]{.underline}

494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) 9

[Pruneyard Shopping Center v. Robins]{.underline}

447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) 12

[Yee v. City of Escondido]{.underline}

503 U.S. 519, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) 12

**Second Circuit**

[Bartlett v. New York State Board of Bar Examiners]{.underline}

156 F.3d 321 (2^nd^ Cir. 1998), [vac'd]{.underline} on other grounds and
[rem'd]{.underline}, 119 S.Ct. 2388, 144 L.Ed.2d 790, 67 U.S.L.W. 3528
(1999) 14-15

[Cohen v. Koenig]{.underline}

25 F.3d 1168 (2^nd^ Cir. 1994) 1

[Innovative Health Systems, Inc. v. City of White Plains]{.underline}

117 F.3d 37 (2^nd^ Cir. 1997) 4-5

[Southview Associates, Ltd. v. Bongartz]{.underline}

980 F.2d 84 (2^nd^ Cir. 1992), [cert]{.underline}. [denied]{.underline},
507 U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993)

11

[Staron v. McDonald's Corporation]{.underline}

51 F.3d 353 (2^nd^ Cir. 1995) 7-8

**Other Circuit Courts**

[Casa Marie, Inc. v. Superior Court of Puerto Rico]{.underline}

988 F.2d 252 (1^st^ Cir. 1993) 5

[City of Edmonds v. Washington State Building Code Council]{.underline}

18 F.3d 802 (9^th^ Cir. 1994), [aff'd]{.underline}, 514 U.S. 725, 115
S.Ct. 1776, 131 L.Ed.2d 801 (1995) 5

[Crowder v. Kitagawa]{.underline}

81 F.3d 1480 (9^th^ Cir. 1996) 3-4

[Hendler v. United States]{.underline}

952 F.2d 1364 (Fed. Cir. 1991) 9

[Hovsons, Inc. v. Township of Brick]{.underline}

89 F.3d 1096 (3^rd^ Cir. 1996) 5

[L.C. v. Olmstead]{.underline}

138 F.3d 893 (11^th^ Cir. 1998), [aff'd]{.underline} in part,
[vac'd]{.underline} in part and [rem'd]{.underline}, 527 U.S. 581, 119
S.Ct. 2176, 144 L.Ed.2d 540 (1999) 8

[Narramore v. United States]{.underline}

960 F.2d 1048 (Fed. Cir. 1992) 9

[Smith & Lee Assocs. v. City of Taylor]{.underline}

102 F.3d 781 (6^th^ Cir. 1996) 5

**District Courts**

[Anderson v. Department of Public Welfare]{.underline},

1 F.Supp.2d 456 (E.D. Pa. 1998) 8

[Eric L. v. Bird]{.underline}

848 F.Supp. 303 (D.N.H. 1994) 2

[Ferguson v. City of Phoenix]{.underline}

931 F.Supp. 688 (D. Ariz. 1996), [aff'd]{.underline}, 157 F.3d 668
(9^th^ Cir. 1998), [cert]{.underline}. [denied]{.underline}, 119 S.Ct.
2049, 144 L.Ed.2d 216, 67 U.S.L.W. 3643 (1999) 14-15

[Pinnock v. International House of Pancakes]{.underline}

844 F.Supp. 574 (S.D. Cal. 1993) 10

[Proctor v. Prince George's Hospital Center]{.underline}

32 F.Supp.2d 820 (D. Md. 1998) 15

[Trovato v. City of Manchester]{.underline}

992 F.Supp. 493 (D.N.H. 1997) 5

[Williams v. Wasserman]{.underline}

937 F.Supp. 524 (D. Md. 1996) 8

**U.S. Constitution and Statutes**

Title II of the Americans with Disabilities Act, 42 U.S.C. §12131,
[et]{.underline} [seq]{.underline}. passim

Title III of the Americans with Disabilities Act, 42 U.S.C. §12181,
[et]{.underline} [seq]{.underline}. 2, 7-8, 15

42 U.S.C. §12206(c)(3) 4

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 passim

Fair Housing Act, 42 U.S.C. §3601-3631 (1994) 5

Title II of Civil Rights Act of 1964, 42 U.S.C. §2000a, [et]{.underline}
[seq]{.underline}. 13

Title VI of Civil Rights Act of 1964, 42 U.S.C. §2000d, [et]{.underline}
[seq.]{.underline} 14

U.S. Constitution, amendment V 8-13

**Regulations**

Title II Regulations, 28 C.F.R. Part 35 passim

Title III Regulations, 28 C.F.R. Part 36 7, 8

**Other Sources**

The Americans with Disabilities Act: Title II Technical Assistance
Manual (1993) 4-5

**PRELIMINARY STATEMENT**

The United States moves for leave to participate as [amicus]{.underline}
[curiae]{.underline} in this case in order to oppose the City of
Syracuse's Motion to Dismiss and/or for Summary Judgment, and to address
the proper construction of Title II of the Americans with Disabilities
Act ("Title II" or "ADA"),[^1] Section 504 of the Rehabilitation Act
("Section 504"),[^2] and the implementing regulations under Title
II.[^3] Plaintiff Michael Kennedy, who has cerebral palsy and requires
the use of a motorized wheelchair for mobility, has made several
attempts to enter the Baskin-Robbins ice cream store identified in the
complaint, and each time has been denied access due to the presence of a
single concrete step. In order for the store to be made fully accessible
to persons with disabilities, a wheelchair ramp must be constructed
which will necessarily encroach upon the city sidewalk. The owners of
the property, Guy and Nancy Easter, have agreed to construct the ramp
and have twice applied to the City for a building permit for this
purpose. However, the owners owe back taxes on the property. The City
requires all building plans that affect city property to be approved by
the City, and has a policy of refusing to grant building permits to
entities that are tax delinquent. Consequently, the City has repeatedly
refused to grant the owners the building permit that would authorize the
construction of the ramp. Despite having been informed numerous times of
the discriminatory effect this refusal has had on persons with
disabilities, the City has refused to modify its policy.[^4]

The plaintiff has brought this action against the property owners, the
franchisor, the franchisee, and the City, alleging violations of Titles
II and III of the ADA, Section 504 and various state laws.[^5] For his
complaint against the City, the plaintiff alleges that the City has
discriminated against him and other persons with disabilities by
refusing to modify its zoning policy in order to grant the building
permit that would allow for construction of the wheelchair ramp.
(Plaintiff's Complaint, p. 2-3.) In its Motion to Dismiss and/or for
Summary Judgment, the City argues [inter]{.underline} [alia]{.underline}
that the plaintiff has failed to state a cause of action under which
relief can be granted and/or that the City is entitled to judgment as a
matter of law, asserting that (1) in the circumstances of this case, the
City has no obligation to accommodate persons with disabilities; (2)
persons with disabilities are not entitled to "special treatment"; (3)
any encroachment upon the City's property would constitute an
unconstitutional taking of private property for public use without just
compensation; and (4) the City cannot be liable because it did not
intentionally discriminate against persons with disabilities. Each of
these arguments is incorrect as a matter of law.[^6]

For the following reasons, the United States respectfully urges this
Court to deny the City's Motion to Dismiss and/or for Summary Judgment.

**ARGUMENT**

**I. THE CITY OF SYRACUSE IS OBLIGATED UNDER TITLE II AND SECTION 504 TO
MAKE REASONABLE MODIFICATIONS TO ITS ZONING POLICIES IN ORDER TO AVOID
DISCRIMINATION AGAINST PERSONS WITH DISABILITIES**

Title II of the ADA prohibits public entities, including the City of
Syracuse, from discriminating against persons with disabilities. It
provides:

> \[N\]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 any such entity.

42 U.S.C. §12132; [see]{.underline} [also]{.underline} 28 C.F.R. §
35.130(a).[^7]

This general prohibition against discrimination has been specifically
implemented in regulations adopted by the Attorney General.
[See]{.underline} 42 U.S.C. § 12134; 28 C.F.R. Part 35 ("DOJ
Regulations"). One of these regulations imposes an affirmative duty on a
public entity to "make reasonable modifications in policies, practices,
or procedures" when such modifications are "necessary to avoid
discrimination on the basis of disability." 28 C.F.R. § 35.130(b)(7).
Reasonable modifications are not required, however, where "the public
entity can demonstrate that making the modifications would fundamentally
alter the nature of the service, program or activity" to which the
policy or practice relates. [Id]{.underline}.

In the circumstances of this case, the City's implementation of its
"neutral" policy or practice to deny permits to tax delinquent property
owners places disproportionate burdens on people with mobility
impairments who seek to enter the ice cream store. "Congress intended to
prohibit outright discrimination, as well as those forms of
discrimination which deny disabled persons public services
disproportionately due to their disability." [Crowder v.
Kitagawa]{.underline}, 81 F.3d 1480, 1483 (9^th^ Cir. 1996) (applying
the reasonable modifications requirement to find that Hawaii's animal
quarantine law discriminated against visually-impaired persons);
[see]{.underline} [also]{.underline} [Olmstead v. L.C.]{.underline}, 119
S.Ct. 2176, 2186 (1999) ("Congress had a more comprehensive view of the
concept of discrimination advanced in the ADA" than simply the "uneven
treatment of similarly situated individuals" or actions taken "on
account of \[individuals'\] disabilities.")

The Second Circuit has affirmed that Title II and Section 504 apply to a
public entity's zoning decisions. [Innovative Health Systems, Inc. v.
City of White Plains]{.underline}, 117 F.3d 37, 44 (2^nd^ Cir. 1997)
(holding that "\[b\]oth the ADA and the Rehabilitation Act clearly
encompass zoning decisions by the City because making such decisions is
a normal function of a governmental entity.") In that case, the Court
ruled that the plaintiffs were likely to succeed on their claim that the
City had violated Title II and Section 504 by refusing to grant a permit
to a drug and alcohol rehabilitation facility, because the plaintiffs
had been denied the benefits of the City's zoning activity on the basis
of their disability. [Id]{.underline}. at 49.

In its capacity as the federal agency charged with implementing and
enforcing the ADA, the Department of Justice at the direction of
Congress has published a Technical Assistance Manual which includes
several illustrations of the reasonable modifications requirement.
[See]{.underline} 42 U.S.C. § 12206(c)(3); The Americans with
Disabilities Act: Title II Technical Assistance Manual ("TA Manual")
(November 1993), § II-3.6000 at 14-15. One of these examples
specifically addresses the obligation to modify zoning policies in order
to permit construction of a wheelchair ramp:

> 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 § II-3.6100 at 14. In reaching its decision in [Innovative
Health Systems]{.underline}, the Second Circuit specifically approved of
the DOJ Regulations and TA Manual, noting:

> \[T\]he Department of Justice's regulations are entitled to
> controlling weight unless they are "arbitrary, capricious, or
> manifestly contrary to the statute,"\...and its manual is given
> substantial deference unless another reading is compelled by the
> regulation's plain language\...\[T\]here is nothing to suggest that
> the regulations are contrary to the statute or that either the
> preamble or the manual is inconsistent with the regulations.

[Id]{.underline}. at 45, n.8; [see]{.underline} [also]{.underline}
[Trovato v. City of Manchester]{.underline}, 992 F.Supp. 493, 499
(D.N.H. 1997) (finding violations of Title II, Section 504 and the Fair
Housing Act[^8] where the city "failed to show how granting plaintiffs
an exception \[to a residential setback requirement\] would
fundamentally alter or subvert the purposes of its zoning
variance.")[^9]

Thus, the law is clear in this circuit that the reasonable modification
requirement in Title II and Section 504 applies to the zoning activities
of public entities. In this context, a public entity is required to
modify its zoning policies and practices when such modifications are
necessary to avoid discrimination against persons with disabilities,
unless the modification would fundamentally alter the nature of
underlying zoning program. In the circumstances of this case, the City's
policy or practice to deny building permits to tax-delinquent property
owners works to disproportionately burden persons with disabilities,
because it prevents the owners from constructing the ramp that is
necessary to make the ice cream store accessible to persons with
disabilities. Persons without disabilities are not similarly burdened,
because they do not need the ramp to enjoy equal access to the store.
The plaintiff here is not requesting "special" treatment, but simply a
level playing field. Therefore, the plaintiff has alleged sufficient
facts to state a claim that Title II and Section 504 require the City to
modify its tax-delinquency policy or practice (e.g., make an exception
in this case) in order to permit construction of the ramp, unless to do
so would constitute a fundamental alteration of its zoning program.

**II. THE PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO STATE A CLAIM THAT A
MODIFICATION TO THE CITY'S POLICY IN THIS CASE IS REASONABLE AND WOULD
NOT FUNDAMENTALLY ALTER THE CITY'S ZONING PROGRAM**

In his complaint against the City, the plaintiff has alleged that the
City has violated Title II and Section 504 by refusing to modify its
policy or practice to deny permits to property owners who owe back taxes
to the City, and that the City is obliged under Title II and Section 504
to grant an exception to its policy in this case as a reasonable
modification. (Plaintiff's Complaint, p. 2-3.) The City responds that to
grant a building permit in these circumstances "would allow \[the\]
property owner to circumvent the City's efforts to protect the public
fisc by collecting back taxes." (City of Syracuse's Memorandum of Law,
p. 15.)[^10]

Requiring the City to modify its policy or practice in this instance
would not fundamentally alter the administration of the City's zoning
program. It does not require changes in land use classifications or
restrictions, nor does it leave the City without its traditional means
of collecting past due taxes. It merely requires the City to allow a
ramp to be built as the City routinely does when tax delinquency is not
at issue. In the majority of cases where a property owner requests a
building permit in order to improve the property and thereby increase
its value, the purpose of the policy --- to encourage payment of
property taxes by imposing a penalty on delinquent taxpayers --- would
seem to be effectuated. However, in this case, the property owners'
motive is not profit, but their obligation to comply with federal law.
Refusing to grant the permit to the property owners does not penalize
them; instead, it penalizes persons with disabilities, by denying them
the equal access guaranteed by federal law. Because the purpose of the
tax delinquency policy arguably could not be realized in this situation,
it also arguably cannot be frustrated by the requirement that the City
make an exception. Consequently, the Court may be able to find that
modification of this policy in these circumstances in order to permit
construction of the ramp would cause no fundamental alteration to the
City's zoning program.

In any case, whether a given modification would constitute a fundamental
alteration under Title II and Section 504 is necessarily a fact-based
determination, resolution of which is inappropriate at this stage of the
litigation. [See]{.underline}, [e.g.]{.underline}, [Staron v. McDonald's
Corp.]{.underline}, 51 F.3d 353, 357-358 (2^nd^ Cir. 1995) (reversing
the dismissal of a suit brought under the "reasonable modifications"
requirement in Title III of the ADA[^11], where it was not "possible to
conclude on the pleadings that plaintiffs' suggested modification
\[was\] necessarily unreasonable")[^12]; and [L.C. v.
Olmstead]{.underline}, 138 F.3d 893 at 905 (11^th^ Cir. 1998),
[aff'd]{.underline} in part, [vac'd]{.underline} in part and
[rem'd]{.underline}, 119 S.Ct. 2176, 2190 (1999) (remanding to trial
court for determination of whether community placement would constitute
"fundamental alteration" of the State's mental health care delivery
system).[^13] Moreover, the burden is on the public entity to prove that
the relief sought by the plaintiff --- here, an exception to the City's
policy or practice to deny building permits to tax-delinquent entities
--- would constitute a fundamental alteration of the underlying
activity.

**III. THE REQUIREMENT THAT THE CITY MODIFY ITS ZONING POLICY IN ORDER
TO AVOID DISCRIMINATION DOES NOT EFFECT AN UNCONSTITUTIONAL TAKING OF
PRIVATE PROPERTY FOR PUBLIC USE WITHOUT JUST COMPENSATION**

The Fifth Amendment to the U.S. Constitution prohibits the Federal
government from taking private property "for public use, without just
compensation." U.S. Constitution, amend. V. The United States Supreme
Court has repeatedly held that "\[o\]ne of the principal purposes of the
takings clause is 'to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne
by the public as a whole.'" [Dolan v. City of Tigard]{.underline}, 512
U.S. 374, 384 (1994), citing [Armstrong v. United States]{.underline},
364 U.S. 40, 49 (1960). In its Motion, the City argues that to the
extent that satisfaction of the plaintiff's claims would require the
City to grant the building permit and thereby permit an encroachment
upon the City sidewalk, such a requirement would constitute a "physical
taking" of its property in violation of the takings clause. This
argument is without merit for several reasons.

First, it is improperly raised in the context of a Motion to Dismiss
and/or for Summary Judgment. The City may not claim, as a basis for
dismissing an action brought under perfectly valid federal law, that
enforcement of federal law constitutes a taking of its property. The
takings clause does not bar the government from taking private property
for public use; the government may do so without restriction so long as
the governmental act stems from some proper legislative authorization.
[Hendler v. United States]{.underline}, 952 F.2d 1364, 1378 (Fed. Cir.
1991). All the takings clause requires is that, whenever the government
takes private property for public use, it provides just compensation.
[First English Evangelical Lutheran Church of Glendale v. County of Los
Angeles]{.underline}, 482 U.S. 304, 314-15 (1987); [Narramore v. United
States]{.underline}, 960 F.2d 1048, 1049 (Fed. Cir. 1992).

The clause is thus "designed 'not to limit the governmental interference
with property rights [per]{.underline} [se]{.underline}, but rather to
secure compensation in the event of otherwise proper interference
amounting to a taking.' Furthermore, the Fifth Amendment does not
require that just compensation be paid in advance of or even
contemporaneously with the taking. All that is required is the existence
of a 'reasonable, certain and adequate provision for obtaining
compensation at the time of the taking.'" [Preseault v. Interstate
Commerce Comm.]{.underline}, 494 U.S. 1, 11 (1990). Therefore, even if
Title II and Section 504 could be interpreted to effect a taking in this
case (and we argue that they cannot), they remain perfectly valid
federal legislation, and therefore must be enforced by the Court in this
case because a means of obtaining just compensation exists in the Court
of Federal Claims.

In any case, the City's argument must fail on its merits as well. The
City relies principally upon [Loretto v. Teleprompter Manhattan CATV
Corp.]{.underline}, 458 U.S. 419 (1982) for its argument that Title II
and Section 504 would effect a taking, citing that case for the
proposition that any regulation that requires a property owner to permit
an permanent physical invasion of its property effects an
unconstitutional taking. (City of Syracuse's Memorandum of Law, p.
7-8.)[^14] In [Lucas v. South Carolina Coastal Council]{.underline}, 112
S. Ct. 2886 (1992), the Supreme Court delineated two situations in which
governmental action will be considered a [per]{.underline}
[se]{.underline} taking, therefore requiring just compensation: (1) when
a regulation compels a permanent physical invasion of property; or (2)
when a regulation denies an owner all economically beneficial or
productive use of its land. [Id]{.underline}. at 2893. It appears from
the City's Motion that its sole argument is that enforcement of Title II
and Section 504 in the circumstances of this case would effect a
physical taking under the first prong of the [Lucas]{.underline} test.
However, insofar as the issue of a regulatory taking may also be raised,
the City likewise fails to meet the burden of showing any regulatory
taking in this case.

First, as the City itself concedes, nothing in Title II or Section 504
authorizes or requires a permanent physical invasion of any property.
Instead, these laws simply prohibit public entities from discriminating
against persons with disabilities. The laws do not take any property;
they require only that the City's long-established and voluntary
practice of granting building permits that affect City property be
conducted in a nondiscriminatory manner. As the court held in [Pinnock
v. International House of Pancakes]{.underline}, 844 F.Supp. 574 (S.D.
Cal. 1993), "\[s\]ince the ADA merely regulates the use of property and
does not give anyone physical occupation of \[the\] property, it \[does
not effect a physical taking\]." [Id]{.underline}. at 587. Thus, to the
extent that any encroachment upon the City's property may occur as a
consequence of granting the permit, it can only be attributed to the
City's own practice of allowing such encroachments --- not to the
application of any federal civil rights law.

Secondly, the proposed encroachment at issue here would not qualify as a
"physical taking" under the Supreme Court's analytical framework. In
[Southview Associates, Ltd. v. Bongartz]{.underline}, 980 F.2d 84 (2^nd^
Cir. 1992), [cert]{.underline}. [denied]{.underline}, 507 U.S. 987
(1993), the Second Circuit had an opportunity to review the Supreme
Court's cases addressing claims of physical takings.[^15] In that case,
the Second Circuit stated:

> Loretto helps define what constitutes a physical taking\...The
> [Loretto]{.underline} Court explained that a permanent physical
> occupation occurs when government action [permanently
> destroys]{.underline} the three rights associated with the ownership
> of property: the power to possess, to use, and to dispose.
> [Id]{.underline}. at 435\...The Court added that [absolute exclusivity
> of the occupation]{.underline} and [absolute deprivation of the
> owner's right to use and exclude others from the property]{.underline}
> were hallmarks of a physical taking. [Id]{.underline}. at 435 n.12.

[Bongartz]{.underline} at 93 (some citations omitted; emphasis added).
In [Loretto]{.underline}, the Court found a taking where a state statute
required a private landlord to permit a cable television company to
install cable television on his property for the cable company's
exclusive use and profit. In contrast, if the City is required, as a
reasonable modification of its zoning policy or practice, to permit an
encroachment upon five feet of the city sidewalk, there will be no
"absolute deprivation" of the City's right to possess, use and dispose
of that property.[^16] The City, as well as any and all members of the
public, will not be "absolutely depriv\[ed\]" of the right to use the
space. City officials, employees, and other pedestrians will still be
able to use the sidewalk area, including the ramp.[^17] Therefore, even
if Title II and Section 504 could somehow be said to compel the City to
permit an encroachment upon its sidewalk, the [Loretto]{.underline} test
for a "physical taking" could not be met on these facts.[^18]

Finally, Title II and Section 504 cannot take away any property right
that did not already exist. In [Lucas]{.underline}, the Supreme Court
made clear that there can only be an unconstitutional taking where there
has been an impairment to a property interest that was actually and
lawfully possessed by the owner prior to the taking. [Id]{.underline}.
at 1027. In the circumstances of this case, the only limitation that
Title II and Section 504 place on the City's property is to prohibit the
City from disposing of its property in a discriminatory manner. Because
the City and members of the public will still have unrestricted use of
the ramp, this is the only "property interest" that these federal laws
could be said to affect. However, the City does not possess the right to
use its property in a discriminatory manner; the right to discriminate
against persons with disabilities is not one of the "bundle of sticks"
that inheres in the City's ownership of its sidewalk. For example, if a
city regularly granted easements to all male citizens but denied them to
female citizens, no court would sanction the city's choice to hide
behind the Fifth Amendment and claim that it had a right to use its
property as it wished.

The same principle applies to discrimination on the basis of disability,
which is the necessary result of the City's actions in this case, and
the reason why Title II and Section 504 require the City to take
affirmative steps to avoid it. The takings clause cannot be used as a
shield for unlawful discrimination. [See]{.underline} [Heart of Atlanta
Motel v. United States]{.underline}, 379 U.S. 241 (1964) (rejecting a
takings clause challenge to Title II of the Civil Rights Act of 1964, 42
U.S.C. 2000a, [et]{.underline} [seq]{.underline}., which prohibits
"place\[s\] of public accommodation" from discriminating on the basis of
race.) Therefore, under the facts as alleged in this case, any resultant
encroachment upon the City sidewalk, even if it could be said to be
effected by Title II and Section 504, would not constitute an
unconstitutional taking of private property without just compensation.

**IV. THE CITY MAY BE LIABLE FOR DAMAGES UNDER TITLE II AND SECTION 504
EVEN IN THE ABSENCE OF ANY DISCRIMINATORY ANIMUS TOWARDS PERSONS WITH
DISABILITIES**

Finally, the City argues that the ADA requires a plaintiff to prove that
"his status as a disabled person was a motivating factor in the City\['s
decisions and that those decisions\] resulted from an intent to
discriminate." (City of Syracuse's Memorandum of Law, p. 9.)[^19] The
City states that it did not intentionally discriminate against the
plaintiff nor did it even consider the plaintiff's status as an
individual with a disability in making its decision. In contrast, the
plaintiff is arguing, and the ADA requires, that the City
[should]{.underline} [have]{.underline} considered the consequences its
decision would have on persons with disabilities when it applied its
zoning policy in this case, because in light of such consequences, the
City was obligated to make a reasonable modification to its policy in
order to avoid discriminating against persons with disabilities.

It is settled in the Second Circuit that compensatory damages are
available to victims of discrimination under Title II and Section
504.[^20] [See]{.underline} [Bartlett v. New York State Board of Bar
Examiners]{.underline}, 156 F.3d 321, 330-331 (2^nd^ Cir. 1998),
[vac'd]{.underline} on other grounds and [rem'd]{.underline}, 119 S.Ct.
2388 (1999). "The law is well settled that intentional violations of
Title VI, and thus the ADA and Rehabilitation Act, can call for the
award of money damages." [Id]{.underline}. (citation omitted).

In [Bartlett]{.underline}, a woman with a learning disability sued the
Board of Law Examiners for failing to provide her with requested
accommodations. The Board had repeatedly denied her request for
accommodations based on use of a diagnostic test that the Court had
found to be an inaccurate indicator of the plaintiff's learning
disability. [Id]{.underline}. at 331. The Court found that by repeatedly
using a test that was inaccurate the defendants had exercised sufficient
intent for an award of damages to be appropriate under the ADA and
Rehabilitation Act. The Court found that "intentional discrimination may
be inferred when a policymaker acted with at least deliberate
indifference to the strong likelihood that a violation of federally
protected rights will result from the implementation of the
\[challenged\] policy\...\[or\] custom." [Id]{.underline}. at 331,
citing [Ferguson v. City of Phoenix]{.underline}, 931 F.Supp. 688, 697
(D. Ariz. 1996), [aff'd]{.underline}, 157 F.3d 668 (9^th^ Cir. 1998),
[cert]{.underline}. [denied]{.underline}, 119 S.Ct. 2049 (1999); [Canton
v. Harris]{.underline}, 489 U.S. 378, 385 (1989).[^21] The "deliberate
indifference" standard "does not require personal animosity or ill
will." [Bartlett]{.underline} at 331.

Consequently, the standard for intentional discrimination is satisfied
on the facts alleged in this case, where the City has continued to deny
that it has any responsibility to modify its policies despite the fact
that it has been repeatedly made aware of the fact that the plaintiff is
an individual with a disability and, along with all other persons with
disabilities, is being denied equal access to the store. In both the
first and second applications for a building permit, the owners made
clear that the purpose of the application was to install a wheelchair
ramp that was necessary to make the store accessible to persons with
disabilities as required by Title III of the ADA. Moreover, in the year
and a half since the owners submitted their first application, attorneys
representing the plaintiff and the United States Attorney for the
Northern District of New York have had numerous verbal and written
communications with various representatives of the City, by which they
have informed the City that its refusal to modify its policies
constitutes a direct violation of Title II and Section 504. The
plaintiff has alleged sufficient facts to support a finding that by
denying the owners' repeated requests, the City has been deliberately
indifferent to the effect its decisions were having on persons with
disabilities, and consequently, compensatory damages are an available
remedy in this case.

**CONCLUSION**

For these reasons, the United States respectfully urges this Court to
deny the City's Motion to Dismiss and/or for Summary Judgment.

Respectfully submitted,

BILL LANN LEE

Acting Assistant Attorney General

Civil Rights Division

THOMAS J. MARONEY JOHN L. WODATCH, Chief

United States Attorney PHILIP L. BREEN, Special Legal Counsel

Northern District of New York RENEE M. WOHLENHAUS, Deputy Chief

WILLIAM H. PEASE

Civil Chief \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Assistant United States Attorney M. CHRISTINE FOTOPULOS

100 South Clinton Street Trial Attorney

Syracuse, NY 13261-7198 Disability Rights Section

\(315\) 448-0672 Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 305-7475

Dated: April 6, 2000

[^1]: 42 U.S.C. §§ 12131-34.

[^2]: 29 U.S.C. § 794.

[^3]: 28 C.F.R. Part 35.

[^4]: These are the facts as alleged by the plaintiff, which the Court
    must accept as true for the purpose of ruling on the City's Motion
    to Dismiss (or, with respect to its alternative Motion for Summary
    Judgment, read in the light most favorable to the non-moving party.)
    [See]{.underline} [Cohen v. Koenig]{.underline}, 25 F.3d 1168 (2^nd^
    Cir. 1994). In its Motion, the City asserts that its refusals to
    grant both of the owners' applications for a building permit were
    based on several factors, only one of which was the owners' tax
    delinquency. The existence of this disputed issue of material fact,
    while it has no effect on the applicable legal principles discussed
    below, certainly precludes a judgment on the pleadings.
    [See]{.underline} [also]{.underline} [Eric L. v. Bird]{.underline},
    848 F.Supp. 303, 313-14 (D.N.H. 1994) (denying motion to dismiss
    complaint brought under Title II and Section 504 where plaintiffs'
    claims presented fact issues).

[^5]: For purposes of this [amicus]{.underline} brief, the United States
    will address only the plaintiff's claims against the City, and only
    those claims arising under Title II and Section 504.

[^6]: The United States takes no position on the additional arguments
    made by the City in its Motion to Dismiss and/or for Summary
    Judgment.

[^7]: Section 504 contains a similar prohibition: "No otherwise
    qualified individual with a disability\...shall, solely by reason of
    her or his disability, be excluded from the participation in, be
    denied the benefits of, or be subjected to discrimination under any
    program or activity receiving Federal financial assistance\..." 29
    U.S.C. §794(a).

[^8]: 42 U.S.C. §§ 3601-3631 (1994) ("FHA"). The FHA makes it unlawful
    "\[t\]o discriminate in the sale or rental, or to otherwise make
    unavailable or deny, a dwelling to any buyer or renter because of a
    handicap," and defines discrimination to include "a refusal to make
    reasonable accommodations in rules, policies, practices, or
    services, when such accommodations may be necessary to afford such
    person equal opportunity to use and enjoy a dwelling." 42 U.S.C. §
    3604(f)(1) and (f)(3)(B).

[^9]: The [Trovato]{.underline} decision enjoys the support of a long
    line of circuit court decisions in the disability context brought
    under the FHA, which have applied that law's comparable "reasonable
    accommodation" requirement to zoning decisions and which are thus
    instructive in this case. [See]{.underline} [Innovative Health
    Systems]{.underline} at 45 n.9 (finding no error in "\[t\]he
    district court's reference to the \[FHA, where that court
    had\]\...noted that courts have interpreted the similarly-broad
    prohibition of disability discrimination in the FHA to cover local
    zoning decisions\... .") [See]{.underline}, [e.g.]{.underline},
    [Casa Marie, Inc. v. Superior Court of Puerto Rico]{.underline}, 988
    F.2d 252 (1^st^ Cir. 1993); [City of Edmonds v. Washington State
    Building Code Council]{.underline}, 18 F.3d 802 (9^th^ Cir. 1994),
    [aff'd]{.underline}, 115 S.Ct. 1776 (1995); [Smith & Lee Assocs. v.
    City of Taylor]{.underline}, 102 F.3d 781 (6^th^ Cir. 1996); and
    [Hovsons, Inc. v. Township of Brick]{.underline}, 89 F.3d 1096, 1103
    (3^rd^ Cir. 1996) ("Courts interpreting the reasonable accommodation
    provision of the \[FHA\] have ruled that municipalities\...must
    change, waive or make exceptions in their zoning rules to afford
    people with disabilities the same opportunity to housing as those
    who are without disabilities") (quotations omitted).

[^10]: The City makes the additional argument that permitting
    construction of the ramp "would also frustrate the City's efforts to
    protect the public by ensuring that handicap ramps are a sufficient
    distance from poles, guy wires, and fire hydrants and do not imperil
    pedestrian traffic." (City of Syracuse's Memorandum of Law, p. 15.)
    Again, this argument relates to a disputed issue of material fact.
    For purposes of ruling on the City's Motion to Dismiss and/or for
    Summary Judgment, the facts alleged in the complaint --- that the
    City has refused to grant the owners a building permit solely on the
    basis of their tax delinquency --- will be presumed to be true.
    However, should the City be able to prove that it denied the
    building permit pursuant to some other policy or practice, it is
    still obliged under Title II and Section 504 to make reasonable
    modifications to that policy or practice in order to avoid
    discrimination against persons with disabilities.

[^11]: The reasonable modifications requirement in Title III, which
    applies to places of public accommodation, provides:
    "\[D\]iscrimination includes\...a failure to make reasonable
    modification in policies, practices, or procedures, when such
    modifications are necessary to afford such goods, services,
    facilities, privileges, advantages, or accommodations to individuals
    with disabilities, unless the entity can demonstrate that making
    such modifications would fundamentally alter the nature of such
    goods, services, facilities, privileges, advantages, or
    accommodations\... ." 42 U.S.C. § 12182(b)(2)(A)(ii);
    [see]{.underline} [also]{.underline} 28 C.F.R. § 36.302.

[^12]: In [Staron]{.underline}, the Second Circuit also noted that it
    was not "necessary at this point in the lawsuit to bind \[the\]
    plaintiffs to the one specific modification they prefer\[red\]," and
    that they "should be allowed the opportunity" to "demonstrate after
    discovery that \[alternate\] modifications\...are both 'reasonable'
    and 'necessary.'" [Id]{.underline}. at 358 (citations omitted).

[^13]: [See]{.underline} [also]{.underline} [Williams v.
    Wasserman]{.underline}, 937 F.Supp. 524, 528 (D. Md. 1996) (whether
    there was a "fundamental alteration" was a disputed issue of
    material fact precluding summary judgment); and [Anderson v.
    Department of Public Welfare]{.underline}, 1 F.Supp.2d 456, 466
    (E.D. Pa. 1998) (same).

[^14]: Only one reported case has addressed a takings claim under the
    ADA, and there it was rejected. [See]{.underline} [Pinnock v.
    International House of Pancakes]{.underline}, 844 F.Supp. 574 (S.D.
    Cal. 1993) (rejecting a claim by a Title III entity that the
    economic impact of the ADA's accessibility requirements effected an
    unconstitutional taking.)

[^15]: In [Bongartz]{.underline}, the Court found that a developer had
    failed to establish a physical taking where a state environmental
    board denied a land use permit for building vacation homes in a deer
    habitat, thereby preventing the developer from exercising the right
    to "exclude" deer from the property. [Id]{.underline}. at 95.

[^16]: The City does not identify which property interests will
    allegedly be impaired by application of Title II and Section 504,
    insisting only that "the right to exclude others is one of the most
    essential sticks in the bundle of rights that are commonly
    characterized as property." (City of Syracuse's Memorandum, p. 7,
    citing [Nollan v. California Coastal Commission]{.underline}, 483
    U.S. 825, 831 (1987) and excising the first part of the quoted
    sentence: "as to property reserved by its owner for private use.").
    It is unclear what kind of interest the City could have in reserving
    a public sidewalk for its own "private use" or in "exclud\[ing\]
    others" from such use. [See]{.underline} [also]{.underline} [Yee v.
    City of Escondido]{.underline}, 503 U.S. 519, 531 (1992) (holding
    that when property owners "voluntarily open their property to
    occupation by others, \[they\] cannot assert a [per]{.underline}
    [se]{.underline} right to compensation based on their inability to
    exclude particular individuals"); and [Pruneyard Shopping Center v.
    Robins]{.underline}, 447 U.S. 74, 82-83 (1980) (finding no taking
    where a shopping center which was open to the public was prohibited
    from excluding peaceful activists).

[^17]: Moreover, at this stage in the litigation, it is unclear what
    options may be available under New York property law that would
    allow the City to permit construction of the ramp while retaining
    its property rights in the sidewalk. For example, the City remains
    free to adopt a zoning policy which places certain conditions on its
    grants of easements, as long as it ensures that its implementation
    of such a policy in any given case does not discriminate against
    persons with disabilities.

[^18]: Similarly, Title II and Section 504 do not effect the second kind
    of [per]{.underline} [se]{.underline} taking under [\
    Lucas]{.underline} --- the denial of all economically beneficial or
    productive use of the land. In this context, the Supreme Court has
    set forth three factors to be considered: (1) the economic impact of
    the regulation on the property owner; (2) the extent to which the
    regulation has interfered with distinct investment-backed
    expectations; and (3) the character of the governmental action.
    [Penn Central Transportation Co. v. City of New York]{.underline},
    438 U.S. 104, 124 (1978). Requiring the City to discontinue or
    substantially alter its intended use of the property affected does
    not amount to a taking --- the government must make all uses of the
    property economically infeasible. Again, it is difficult to envision
    what kind of economic interest the City might have in this space of
    sidewalk that could possibly be destroyed by the construction of the
    ramp.

[^19]: The City makes a similar argument with respect to Section 504,
    alleging that that law requires a plaintiff to demonstrate that "his
    handicap was the sole basis for the alleged discrimination."
    [Id]{.underline}.

[^20]: The remedies available for violations of Title II of the ADA are
    coextensive with those available under Section 504 and Title VI of
    the Civil Rights Act of 1964, 42 U.S.C. § 2000d [et]{.underline}
    [seq.]{.underline} [See]{.underline} 42 U.S.C. § 12133 (providing
    that Title II affords plaintiffs the "remedies, procedures and
    rights" set forth in 29 U.S.C. § 794a). That section governs the
    relief available under Section 504, and there gives such plaintiffs
    the "remedies, procedures and rights set forth in title VI\...."

[^21]: [See]{.underline} [also]{.underline} [Proctor v. Prince George's
    Hospital Center]{.underline}, 32 F.Supp.2d 820, 829 (D. Md. 1998)
    ("\[I\]ntentional discrimination is shown by an intentional, or
    willful violation of the Act itself\...\[even if the defendants\]
    believed themselves to be within the confines of the law").