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. )

)

)

)

**SUPPLEMENTAL MEMORANDUM OF THE UNITED STATES**

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

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

**TABLE OF AUTHORITIES** ii

**BACKGROUND** 1

**ARGUMENT** 2

**I. THIS COURT SHOULD RETAIN JURISDICTION OVER THIS\
MATTER** 2

> A. The Court is Presented with a \"Case-or-\
> Controversy\" which is Ripe for Adjudication 2
>
> B. Abstention is not Warranted in this Case 8

**II. THE ADA PROHIBITS ZONING ENFORCEMENT ACTIVITIES WHICH\
HAVE A DISPARATE IMPACT UPON INDIVIDUALS WITH\
DISABILITIES, EVEN IF NO INTENTION TO DISCRIMINATE CAN\
BE SHOWN** 12

**III. THE ADA REQUIRES PUBLIC ENTITIES TO MAKE REASONABLE MODIFICATIONS
TO THEIR POLICIES, PRACTICES, AND\
PROCEDURES RELATED TO ZONING IN ORDER TO AVOID DISCRIMINATING ON THE
BASIS OF DISABILITY** 16

**CONCLUSION** 19

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

**CASES:**

**Federal**

[Aetna Life Insurance Co. v. Haworth]{.underline}, 300 U.S. 227 (1937) 7

[Alexander v. Choate]{.underline}, 469 U.S. 287 (1985) 13

[Association of Relatives and Friends of AIDS Patients v. Regulations
and Permits Administration]{.underline}, 740 F. Supp. 95 (D.P.R. 1990)
16

[Burford v. Sun Oil Co.]{.underline}, 319 U.S. 315 (1943) 8

[Burns v. Watler]{.underline}, 931 F.2d 140 (1st Cir. 1991) 9, 11

[Carter v. Casa Central]{.underline}, 849 F.2d 1048 (7th Cir. 1988) 15

[Casa Marie v. Superior Court]{.underline}, 988 F.2d 252 (1st Cir. 1993)
8

[Cheeney v. Highland Community College]{.underline}, 819 F. Supp. 749
(N.D. Ill. 1993) 5

[Colorado River Water Conservation District v. United
States]{.underline}, 424 U.S. 800 (1976) 8, 9

[Finley v. Giacobbe]{.underline}, 827 F. Supp. 215 (S.D.N.Y. 1993) 5

[Gonzalez v. Cruz]{.underline}, 926 F.2d 1 (1st Cir. 1991) 9

[Horizon House Developmental Services, Inc. v. Township of Upper
Southampton]{.underline}, 804 F. Supp. 683 (E.D. Pa. 1992) 16, 18

[Kercado-Melendez v. Aponte-Roque]{.underline}, 829 F.2d 255 (1st Cir.
1987) 5

[Metropolitan Housing Development Corp. v. Village of Arlington
Heights]{.underline}, 558 F.2d 1283 (7th Cir. (1977) 15

[Miller v. Hull]{.underline}, 878 F.2d 523 (1st Cir. 1989) 5

[Moses H. Cone Memorial Hospital v. Mercury Construction
Corp.]{.underline}, 460 U.S. 1 (1983) 9, 11

[NAACP v. Medical Center, Inc.]{.underline}, 657 F.2d 1322 (3d Cir.
1981) 15

[Nathanson v. The Medical College of Pennsylvania]{.underline}, 926 F.2d
1368 (3d Cir. 1991) 15

[Noland v. Wheatley]{.underline}, 835 F. Supp. 476 (N.D. Ill. 1993) 5

[North Shore Chicago Rehabiliation, Inc. v. Village of
Skokie]{.underline}, 827 F. Supp. 497 (N.D. Ill. 1993) 16

[Oxford House, Inc. v. City of Virginia Beach]{.underline}, 825 F. Supp.
1251 (E.D. Va. 1993) 6

[Oxford House, Inc. v. Town of Babylon]{.underline}, 819 F. Supp. 1179
(E.D.N.Y. 1993) 16, 18

[Oxford House, Inc. v. Township of Cherry Hill]{.underline}, 799 F.
Supp. 450 (D.N.J. 1992) 6, 16, 18

[Oxford House-Evergreen v. City of Plainfield]{.underline}, 769 F. Supp.
1329 (D.N.J. 1991) 18

[Patsy v. Florida Bd. of Regents]{.underline}, 457 U.S. 496 (1981) 5

[Petersen v. University of Wis. Bd. of Regents]{.underline}, 818 F.
Supp. 1276 (W.D. Wis. 1993) 5

[Potomac Group Home Corp. v. Montgomery County]{.underline}, 823 F.
Supp. 1285 (D. Md. 1993) 16

[Pullman v. Railroad Commission of Texas]{.underline}, 312 U.S. 496
(1941) 8

[Riehl v. Travelers Insurance Co.]{.underline}, 772 F.2d 19 (3d Cir.
1985) 7

[Rojas-Hernandez v. Puerto Rico Electric Power Co.]{.underline}, 925
F.2d 492 (1st Cir. 1991) 11

[Smith v. Barton]{.underline}, 914 F.2d 1330 (9th Cir. 1990) 5

[Stewart B. McKinney Foundation v. Town Plan and Zoning
Board]{.underline}, 790 F. Supp. 1197 (D. Conn. 1992) 16

[Support Ministries for People with AIDS, Inc. v. Town of
Waterford]{.underline}, 808 F. Supp. 120 (N.D.N.Y. 1992) 16

[Tuck v. HCA Health Services of Tennessee, Inc.]{.underline}, 7 F.3d 465
(6th Cir. 1993) 5

[United States v. City of Philadelphia]{.underline}, 838 F. Supp. 223
(E.D. Pa. 1993) 6

[Urbanizadora Versalles v. Rivera Rios]{.underline}, 701 F.2d 993 (1st
Cir. 1983) 5, 6

[Welsley Hills Realty Trust v. Mobil Oil Corp.]{.underline}, 747 F.
Supp. 93 (D. Mass. 1990) 7

[Younger v. Harris]{.underline}, 401 U.S. 37 (1971) 8

**State**

[Dumont v. Town of Wolfeboro]{.underline}, 137 N.H. 1, 622 A.2d 1238
(1992) 4

**STATUTES:**

**Americans with Disabilities Act**

42 U.S.C. § 12101(a)(5) (Supp. III 1992) 13

42 U.S.C. § 12112(b)(3) (Supp. III 1992) 13

42 U.S.C. § 12131(2) (Supp. III 1992) 17

42 U.S.C. § 12132 (Supp. III 1992) 17

42 U.S.C. § 12133 (Supp. III 1992) 5

42 U.S.C. §§ 12115-12141 (Supp. III 1992) 1

**Fair Housing Act Amendments**

42 U.S.C. § 3601 [et]{.underline} [seq.]{.underline} (1988 & Supp. III
1992) 6

42 U.S.C. § 3604(f)(3)(b) (1988 & Supp. III 1992) 18

**Rehabilitation Act of 1973**

29 U.S.C. § 794 (as amended) (1988 & Supp. IV 1993) 1

**State of New Hampshire**

N.H. RSA 677:4 (1991) 3

N.H. RSA 677:15 (1991) 3

N.H. RSA 677:15.1 (1991) 4

**State of New Jersey**

N.J.S.A. 40:55D-72.1(a) (1991) 7

**Regulations:**

28 C.F.R. App. A (1993) 15

28 C.F.R. § 35.130(b)(3)(i) (1993) 14

28 C.F.R. § 35.130(b)(3)(ii) (1993) 14

28 C.F.R. § 35.130(b)(4)(i) (1993) 14

28 C.F.R. § 35.130(b)(4)(ii) (1993) 14

28 C.F.R. § 35.130(b)(7) (1993) 18

28 C.F.R. § 35.130(b)(8) (1993) 14

**Legislative History:**

H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 22, 98, [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 303, 381 4, 13, 15

**Miscellaneous:**

Memorandum of the United States as Amicus Curiae 18

The Americans with Disabilities Act \-- Title II Technical Assistance
Manual 14 (1993) 18

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. )

)

)

)

**BACKGROUND**

On March 25, 1994, this Court heard oral argument on issues raised in
its November 17, 1993, pretrial order. The United States moved to
participate in this case as [amicus]{.underline} [curiae]{.underline},
because the pretrial order raised questions as to whether title II of
the Americans with Disabilities Act (\"ADA\" or \"the Act\"), 42 U.S.C.
§§ 12115-12141 (Supp. III 1992) and section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794 (as amended) (1988 & Supp. IV 1993)
(\"section 504\") apply to zoning enforcement activities. At oral
argument, however, the defendant appeared to have entirely abandoned the
arguments concerning the ADA and section 504. Instead, defendant focused
entirely upon whether this case presents a \"case-or-controversy\"
within the meaning of Article III of the United States Constitution,
and, even if it does, whether abstention is appropriate, pending the
outcome of the plaintiff\'s case in the New Hampshire Superior Court.

During the argument on behalf of the United States, the Court also
raised some issues about the scope of the ADA\'s coverage, most notably
as to whether the ADA permits a challenge to zoning ordinances and
practices based upon disparate impact theory, and whether the ADA
requires state and local governments to amend or make exceptions to
zoning ordinances that would benefit only persons with disabilities.

This memorandum, submitted in response to the Court\'s invitation to all
interested parties to file supplemental memoranda on any of the issues
raised during oral argument, argues that: (1) this Court should retain
jurisdiction of this matter; (2) facially neutral zoning ordinances and
practices which have a disparate impact upon individuals with
disabilities can violate the ADA; and (3) the ADA requires state or
local governments, under some circumstances, to amend or make exceptions
to zoning ordinances and activities which would apply only to persons
with disabilities.

**ARGUMENT**

**I. THIS COURT SHOULD RETAIN JURISDICTION OVER THIS MATTER.**

> **A. [The Court is Presented with a \"Case-or-Controversy\" which is
> Ripe for Adjudication.]{.underline}**

The Court suggests that the determination of whether a
case-or-controversy exists may depend upon whether the proceeding before
the New Hampshire Superior Court constitutes \"judicial review\" of the
decision of the Zoning Board of Adjustment (\"ZBA\"), or merely the
final step in the application process for a special exception to
Laconia\'s zoning ordinance. The Court expressed concern that allowing
this action to proceed would enable persons capable of alleging facts
sufficient to support a claim of discrimination on the basis of
disability to \"short-circuit\" state-created processes for obtaining
special exceptions.

At oral argument, the Court referred generally to the New Hampshire
statute authorizing the state\'s Superior Court to hear appeals of
zoning decisions. Section 677:4 of the New Hampshire Revised Statutes
says

> Appeal from Decision on Motion for Rehearing
>
> Any person aggrieved by any order or decision of the zoning board of
> adjustment or any decision of the local legislative body may apply to
> the superior court within 30 days after the action complained of has
> been recorded, by petition, setting forth that such decision or order
> is illegal or unreasonable, in whole or in part, and specifying the
> grounds upon which the decision or order is claimed to be illegal or
> unreasonable.

N.H. RSA 677:4 (1991).

This language itself compels no conclusion about whether the action
brought by the Lakes Region Consumer Advisory Board (\"LRCAB\" or
\"Cornerbridge\") in Superior Court for Bellknap County constitutes
judicial review or part of the application process. Nor have we found
New Hampshire case law addressing the issue with respect to N.H. RSA
677:4. However, at least one New Hampshire Supreme Court decision has
described the virtually identical process for appealing planning board
decisions, provided for by N.H. RSA 677:15 (1991), as judicial review.
[Dumont v. Town of Wolfeboro]{.underline}, 137 N.H. 1, 622 A.2d 1238
(1992).[^1] To the extent, therefore, that the justiciability of this
case requires completion of the application process for a special
exception, the instant case clearly presents a ripe case-or-controversy.
LRCAB has completed the entire administrative process necessary to apply
for a special exception to Laconia\'s zoning ordinance, and twice it has
been denied this special exception.

Even if the action before the Superior Court is considered part of the
application process, the plaintiff was not required to exhaust state
administrative remedies before bringing an action in federal court. The
House Education and Labor Committee explicitly stated that title II does
not require the exhaustion of administrative remedies, [See]{.underline}
H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 22, 98, [reprinted
in]{.underline} 1990 U.S.C.C.A.N. 303, 381 (hereafter \"House Report
Part II\"), and several courts have so held. [See]{.underline} [Noland
v. Wheatley]{.underline}, 835 F. Supp. 476 (N.D. Ill. 1993); [Finley v.
Giacobbe]{.underline}, 827 F. Supp. 215 (S.D.N.Y. 1993); [Petersen v.
University of Wis. Bd. of Regents]{.underline}, 818 F. Supp. 1276 (W.D.
Wis. 1993). This result comports with several section 504 cases, which
have held that persons who are not alleging discrimination by federal
employers need not exhaust administrative remedies. [See]{.underline},
[e.g.]{.underline}, [Tuck v. HCA Health Services of Tennessee,
Inc.]{.underline}, 7 F.3d 465, 471 (6th Cir. 1993) (exhaustion of
federal administrative remedies is not required); [Smith v.
Barton]{.underline}, 914 F.2d 1330, 1338 (9th Cir. 1990) (same);
[Cheeney v. Highland Community College]{.underline}, 819 F. Supp. 749,
750 (N.D. Ill. 1993) (plaintiff not required to file action in state
court prior to bringing section 504 suit in federal court). Indeed,
section 203 of the ADA specifically links that legislation to section
504, stating that \"\[t\]he remedies, procedures, and rights set forth
in section 505 of the Rehabilitation Act (29 U.S.C. § 794a) shall be the
remedies, procedures, and rights this title provides to any person
alleging discrimination . . . in violation of section 202.\" 42 U.S.C. §
12133 (Supp. III 1992).

The same rule has been applied with respect to other civil rights
legislation. Plaintiffs in section 1983 cases are not required to
exhaust administrative remedies. [Patsy v. Florida Bd. of
Regents]{.underline}, 457 U.S. 496, 500 (1981); [Miller v.
Hull]{.underline}, 878 F.2d 523, 530 (1st Cir. 1989); [Kercado-Melendez
v. Aponte-Roque]{.underline}, 829 F.2d 255, 259 (1st Cir. 1987). In
[Urbanizadora Versalles v. Rivera Rios]{.underline}, 701 F.2d 993 (1st
Cir. 1983), the First Circuit

applied this rule to a zoning case, concluding that the plaintiff was
not required even to apply for a variance prior to filing suit in
federal court. [Id.]{.underline} at 998-999.[^2] While zoning cases
decided under the Fair Housing Act Amendments of 1988, 42 U.S.C. § 3601
[et]{.underline} [seq.]{.underline} (1988 & Supp. III 1992) (\"FHAA\"),
do not appear to have squarely addressed the question of whether
exhaustion of administrative remedies is required, courts have reviewed
ordinances and zoning activities notwithstanding the pendency of state
administrative and judicial procedures. [See]{.underline},
[e.g.]{.underline}, [United States v. City of Philadelphia]{.underline},
838 F. Supp. 223, 227 (E.D. Pa. 1993) (federal court decides case prior
to Pennsylvania Supreme Court\'s resolution of state law issues arising
out of same dispute); [Oxford House, Inc. v. Township of Cherry
Hill]{.underline}, 799 F. Supp. 450, 454 (D.N.J. 1992) (federal court
does not require plaintiffs to appeal decision of the defendant denying
certificate of occupancy to the zoning board of adjustment).[^3]

This Court has also questioned whether an injury sufficient to make this
a ripe \"case-or-controversy\" has yet occurred, given the defendant\'s
willingness to allow LRCAB to use the facility at pending the outcome of
the case in Superior Court. The fact that the defendant has not taken
any action to enforce the ZBA\'s denial of the special exception by
evicting the plaintiff does not render the filing of this case
premature. [See]{.underline}, [e.g.]{.underline}, [Welsley Hills Realty
Trust v. Mobil Oil Corp.]{.underline}, 747 F. Supp. 93, 102 (D. Mass.
1990) (\"\[t\]he fact that the Commonwealth has not taken any
enforcement action against \[the plaintiff who is seeking a declaratory
judgment\] does not render the controversy . . . remote and
hypothetical\"). The plaintiff has applied to the ZBA for and has been
denied a special exception. All of the facts necessary to give rise to a
justiciable \"case-or-controversy\" have occurred. [See]{.underline}
[Aetna Life Insurance Co. v. Haworth]{.underline}, 300 U.S. 227, 242
(1937); [Riehl v. Travelers Insurance Co.]{.underline}, 772 F.2d 19, 22
(3d Cir. 1985); [Welsley Hills Realty Trust]{.underline}, 747 F. Supp.
at 102.

Moreover, defendant has tacitly admitted the existence of some
controversy. It has agreed to allow Cornerbridge to remain in its
present location until the dispute in the New Hampshire Superior Court
is resolved. Presumably if no court action at all had been instituted,
the City of Laconia would have sought to evict Cornerbridge.
Defendant\'s \"case-or-controversy\" argument is an attempt merely to
shift the focus of this dispute from federal to state court. To allow
the defendant to render this action nonjusticiable merely by agreeing to
stay enforcement action pending the outcome of the dispute in state
court would have the effect of denying the plaintiff a federal forum in
which to adjudicate its claims based upon federal law. Defendant\'s
\"case-or-controversy\" argument is, in reality, an abstention argument
about whether a federal or state court is the most appropriate forum to
decide the present dispute. For the reasons set forth below,
defendant\'s abstention argument is unavailing.

> **B. [Abstention is not Warranted in this Case.]{.underline}**

The only principles of abstention arguably applicable in this case are
those set out in [Colorado River Water Conservation District v. United
States]{.underline}, 424 U.S. 800 (1976), and its\
progeny.[^4] [Colorado River]{.underline} set forth four factors that a
federal district court must consider when determining whether
\"exceptional circumstances\" justify dismissing or staying an action in
favor of parallel litigation in a state court: (1) whether either court
has assumed jurisdiction over a res; (2) the inconvenience of the
federal forum; (3) the desirability of avoiding piecemeal litigation;
and (4) the order in which the forums obtained jurisdiction. [Colorado
River]{.underline}, 424 U.S. at 818. The case of [Moses H. Cone Memorial
Hospital v. Mercury Construction Corp.]{.underline}, 460 U.S. 1 (1983),
added two more factors: (5) whether federal or state law controls; and
(6) whether the state forum will adequately protect the interests of the
parties. [Id.]{.underline} at 25-26. The First Circuit has also
considered as a seventh factor the vexatious or contrived nature of the
federal litigation. [Burns v. Watler]{.underline}, 931 F.2d 140, 146
(1st Cir. 1991); [Gonzalez v. Cruz]{.underline}, 926 F.2d 1, 3-4 (1st
Cir. 1991).

Application of these factors demonstrates that abstention is
inappropriate. The first factor is irrelevant, as this is not a
proceeding in rem. The federal forum is no less convenient than the
Superior Court in Bellknap County. [See]{.underline}
[Burns]{.underline}, 931 F.2d at 147 (federal forum not rendered
inconvenient by the fact that defendant was required to make two-hour
drive to courthouse). LRCAB filed its federal suit almost a month prior
to the appeal from the adverse decision of the ZBA. This fact not only
weighs in plaintiff\'s favor with respect to the fourth [Colorado
River]{.underline} factor (the order in which jurisdiction was
obtained), but suggests that the federal action was not vexatious or
contrived.

The defendant contends that state law controls the outcome of this
dispute, asserting that its resolution depends upon whether the ZBA
properly applied Laconia\'s zoning ordinance when it denied LRCAB a
special exception. According to the defendant, the ADA and section 504
issues cannot even be decided until the Superior Court has determined
whether LRCAB\'s members met the requirements for a special exception,
because both the ADA and section 504 protect only \"qualified\"
individuals with disabilities.

On the other hand, the plaintiff\'s complaint attacks not only the
method by which the ZBA applied arguably neutral eligibility criteria,
but the sufficiency of those criteria themselves under the ADA and
section 504. The plaintiff\'s disparate impact theory, as well as its
contention that the ADA and section 504 require reasonable modifications
to policies, practices, and procedures in order to avoid discrimination
on the basis of disability, suggest that even if the Superior Court
fairly applies the qualifications standards for a special exception, a
violation of the ADA and section 504 might nevertheless result.

Without concluding whether discrimination actually occurred in this
case, the government agrees with the plaintiff\'s positions concerning
disparate impact and the need to make reasonable modifications to
policies, practices, and procedures, and with its conclusion that
federal law controls the outcome of this case. The fact that this Court
may need to decide some

state and local law issues does not warrant abstention. The First
Circuit has held that [Colorado River]{.underline} abstention is not
appropriate merely because a diversity case involves only issues of
state substantive law. [See]{.underline}, [e.g.]{.underline},
[Burns]{.underline}, [supra]{.underline}; [Rojas-Hernandez v. Puerto
Rico Electric Power Co.]{.underline}, 925 F.2d 492 (1st Cir. 1991).
Abstention is even less appropriate in this case, where issues of
federal substantive law are so critical. [See]{.underline} [Moses H.
Cone]{.underline}, 460 U.S. at 26 (\"the presence of federal law issues
must always be a major consideration weighing against surrender \[of
jurisdiction\]\").

The goals of avoiding piecemeal litigation and of adequately protecting
the interests of all parties are also best served by a refusal to
abstain. The defendant is correct that a finding by the Superior Court
that the plaintiff is eligible for a special exception would obviate the
need for litigation in the federal courts. However, a decision by the
Superior Court in the defendant\'s favor would require LRCAB to return
to federal court to adjudicate its section 1983, ADA, and section 504
claims. The state court action would not have resolved the questions of
whether the criteria used for granting special exceptions have a
disparate impact upon the plaintiff, or must be reasonably modified in
order to avoid discrimination on the basis of disability. On the other
hand, any decision reached by this Court will make the Superior Court
action unnecessary. If this Court finds that the ZBA intentionally
discriminated against the plaintiff, applied or engaged in policies,
practices, and

procedures that had a disparate impact upon the plaintiff, or failed to
make reasonable modifications to policies, practices, and procedures,
then Laconia must grant LRCAB a special exception. A finding that no
discrimination occurred would mean that the ZBA acted properly, and its
decision would stand. This fact and every other consideration of
importance to a federal court in determining whether abstention is
appropriate under [Colorado River]{.underline} and the cases following
it, counsel against abstention in this case.

**II. THE ADA PROHIBITS ZONING ENFORCEMENT ACTIVITIES WHICH HAVE A
DISPARATE IMPACT UPON INDIVIDUALS WITH DISABILITIES, EVEN IF NO
INTENTION TO DISCRIMINATE CAN BE SHOWN.**

At oral argument, plaintiff's counsel clarified that the complaint in
this action was intended to allege, in addition to intentional
discrimination and failure to modify policies, practices, and
procedures, a disparate impact theory. Title II of the ADA clearly was
intended to prohibit formal policies and actions which, although neutral
on their face, have a more burdensome effect upon persons with
disabilities than upon others.

While section 202\'s broad prohibition of discrimination does not
distinguish between intentional discrimination and the discriminatory
effects of facially neutral rules that have a disparate impact upon
persons with disabilities, section 2 of the ADA, which sets out the
Act's findings and purpose, clearly

indicates that intentional discrimination is only one of several
problems the ADA must remedy.

> \(5\) \[I\]ndividuals with disabilities continually encounter various
> forms of discrimination, including outright intentional exclusion,
> [the discriminatory effects of architectural, transportation, and
> communication barriers,]{.underline} overprotective rules and
> policies, failure to make modifications to existing facilities and
> practices, exclusionary qualification standards and criteria,
> segregation, and relegation to lesser services, programs, activities,
> benefits, jobs, or other opportunities.

42 U.S.C. § 12101(a)(5) (Supp. III 1992).

The ADA\'s legislative history further demonstrates that Congress
intended title II to prohibit more than intentional discrimination. The
House Education and Labor Committee said that the broad prohibition of
discrimination in section 202 of the ADA should be \"interpreted
consistent with [Alexander v. Choate]{.underline}, 469 U.S. 287
(1985).\" House Report Part II at 84, [reprinted in]{.underline} 1990
U.S.C.C.A.N. at 367. The Committee explained its understanding of
[Choate]{.underline} in connection with its comments on section
102(b)(3) of the ADA, which defines employment discrimination to include
\"utilizing standards, criteria, or methods of administration . . . that
have the effect of discrimination on the basis of disability.\" 42
U.S.C. § 12112(b)(3) (Supp. III 1992). The Committee said that this
statutory language \"incorporates a disparate impact standard . . .
consistent with the interpretation of section 504 by the U.S. Supreme
Court in . . . [Choate]{.underline} . . ..\" House Report Part II at 61,
[reprinted in]{.underline} 1990 U.S.C.C.A.N. at 343. Clearly, then,

Congress both believed that [Choate]{.underline} prohibits, under
section 504, policies, practices, and procedures that have a disparate
impact upon persons with disabilities, and intended section 202 of the
ADA to prohibit such policies, practices, and procedures as well.

The title II regulation and the Department of Justice\'s commentary upon
it accord with the language of section 2 of the ADA and with the
legislative history of section 202. Section 35.130 of the regulation
lists several forms of conduct which constitute unlawful discrimination
under title II. Among them is use of criteria or methods of
administration \"\[t\]hat have the effect of subjecting qualified
individuals with disabilities to discrimination on the basis of
disability.\"[^5] 28 C.F.R. § 35.130(b)(3)(i) (1993). The regulation\'s
preamble explains that

> \[t\]he phrase \'criteria or methods of administration\' refers to
> official written policies of the public entity and to the actual
> practices of the public entity. This paragraph prohibits both
> blatantly exclusionary policies or practices and nonessential policies
> and practices that are neutral on their face, but deny individuals
> with disabilities an effective opportunity to participate.

28 C.F.R. App. A (1993).

The Department also adopted Congress\'s interpretation of
[Choate,]{.underline} and clearly states that title II prohibits
policies, practices, and procedures having a disparate impact upon
persons with disabilities. [See]{.underline} [Id.]{.underline}[^6]
Courts interpreting [Alexander]{.underline} have also endorsed this
view. [See]{.underline}, [e.g.]{.underline}, [Nathanson v. The Medical
College of Pennsylvania]{.underline}, 926 F.2d 1368, 1383 (3d Cir. 1991)
(interpreting [Choate]{.underline} as prohibiting actions which have a
disparate impact upon persons with disabilities); [Carter v. Casa
Central]{.underline}, 849 F.2d 1048, 1053 (7th Cir. 1988) (citing
[Choate]{.underline} for the proposition that lack of discriminatory
intent is not a defense to a section 504 claim). [See]{.underline}
[also]{.underline} [NAACP v. Medical Center, Inc.]{.underline}, 657 F.2d
1322, 1331-32 (3d Cir. 1981) (case decided prior to [Choate]{.underline}
which held that disparate impact constitutes discrimination under
section 504 even if unintentional).

In housing cases, courts have on several occasions applied a disparate
impact theory to zoning ordinances and practices, beginning with
[Metropolitan Housing Development Corp. v. Village of Arlington
Heights]{.underline}, 558 F.2d 1283 (7th Cir. (1977), which held that
facially neutral zoning ordinances having adverse effects upon racial
minorities can violate the Fair Housing Act. The principles of this case
have been applied specifically to zoning ordinances having a disparate
impact upon individuals with disabilities, in violation of the FHAA.
[See]{.underline}, [e.g.]{.underline}, [Association of Relatives and
Friends of AIDS Patients v. Regulations and Permits
Administration]{.underline}, 740 F. Supp. 95, 103-107 (D.P.R. 1990);
[Oxford House, Inc. v. Town of Babylon]{.underline}, 819 F. Supp. 1179,
1182-1185 (E.D.N.Y. 1993); [Support Ministries for People with AIDS,
Inc. v. Town of Waterford]{.underline}, 808 F. Supp. 120, 133-136
(N.D.N.Y. 1992); [Stewart B. McKinney Foundation v. Town Plan and Zoning
Board]{.underline}, 790 F. Supp. 1197, 1211-1212, 1216-1220 (D. Conn.
1992); [Horizon House Developmental Services, Inc. v. Township of Upper
Southampton]{.underline}, 804 F. Supp. 683, 693-695, 697-699 (E.D. Pa.
1992); [Township of Cherry Hill]{.underline}, 799 F. Supp. at 460-463;
[Potomac Group Home Corp. v. Montgomery County]{.underline}, 823 F.
Supp. 1285, 1295, 1297-1298 (D. Md. 1993); [North Shore Chicago
Rehabiliation, Inc. v. Village of Skokie]{.underline}, 827 F. Supp. 497,
499-500, 502 (N.D. Ill. 1993).

**III. THE ADA REQUIRES PUBLIC ENTITIES TO MAKE REASONABLE MODIFICATIONS
TO THEIR POLICIES, PRACTICES, AND PROCEDURES RELATED TO ZONING IN ORDER
TO AVOID DISCRIMINATING ON THE BASIS OF DISABILITY.**

At oral argument, the Court also expressed concern about the extent of a
public entity\'s obligation under the ADA to make modifications to its
policies, practices, and procedures to avoid discriminating on the basis
of disability. The Court questioned whether this obligation might allow
persons with disabilities to obtain exceptions to zoning ordinances for
which persons without disabilities would be ineligible.

The language of the ADA and of the title II implementing regulation
clearly state that public entities are, indeed, required to make
reasonable modifications to their usual policies, practices, and
procedures where necessary to avoid discrimination on the basis of
disability. Section 202 of the ADA prohibits discrimination against any
\"qualified individual with a disability.\" 42 U.S.C. § 12132 (Supp. III
1992). Section 201(2) defines \"qualified individual with a disability\"
as

> . . . any individual with a disability who, with or without reasonable
> modifications to rules, policies, or practices, the removal of
> architectural, communication, or transportation barriers, or the
> provision of auxiliary aids and services, meets the essential
> eligibility requirements for the receipt of services or the
> participation in programs or activities provided by a public entity.

42 U.S.C. § 12131(2) (Supp. III 1992).

The title II regulation states the obligation even more pointedly.
Section 35.130(b)(7) says that a public entity

> . . . shall make reasonable modifications in policies, practices, or
> procedures when the modifications are necessary to avoid
> discrimination on the basis of disability, unless the public entity
> can demonstrate that making the modifications would fundamentally
> alter the nature of the service, program, or activity.

28 C.F.R. § 35.130(b)(7) (1993). [See]{.underline} [also]{.underline}
Memorandum of the United States as Amicus Curiae at 9 (hereafter
\"Mem.\"). In its earlier memorandum, the United States called the
Court\'s attention to the Department of Justice ADA Title II Technical
Assistance Manual, which clearly demonstrates that this obligation was
contemplated to apply to zoning enforcement activities.
[See]{.underline} Mem. at 9 (citing U.S. Department of Justice, The
Americans with Disabilities Act \-- Title II Technical Assistance Manual
14 (1993).

This interpretation of the ADA is perfectly consistent with FHAA cases
which have interpreted similar language to require exceptions to
facially neutral ordinances which would otherwise operate to exclude
preclude persons with disabilities from obtaining housing in certain
areas. The FHAA says that it is a discriminatory practice to refuse to
make \"a reasonable accommodation in rules, policies, practices, or
services when such accommodation may be necessary to afford \[an
individual with a disability\] equal opportunity to use and enjoy a
dwelling.\" 42 U.S.C. § 3604(f)(3)(b) (1988 & Supp. III 1992). Several
courts have expressed the opinion that reasonable accommodations must be
made where a zoning ordinance has a disparate impact upon individuals
whose disability requires them to live in group home situations.
[See]{.underline}, [e.g.]{.underline}, [e.g.]{.underline}, [Town of
Babylon]{.underline}, 819 F. Supp. at 1185; [Horizon House Developmental
Services]{.underline}, 804 F. Supp. at 699-700; [Township of Cherry
Hill]{.underline}, 799 F. Supp. at 462-63; [Oxford]{.underline}

[House-Evergreen v. City of Plainfield]{.underline}, 769 F. Supp. 1329,
1344-45 (D.N.J. 1991).

The government expresses no opinion on the issue of whether, in fact,
the City of Laconia is required, as a reasonable modification to its
zoning policies, practices, and procedures, to allow LRCAB to use the
facility at 24 Canal Street as a drop-in and support center. Resolution
of this issue depends upon a development of the factual record. At this
juncture, we ask only that the Court conclude that the ADA obligation to
make reasonable modifications to policies, practices, and procedures
does apply to zoning ordinances and to zoning enforcement activities
under some circumstances.[^7]

**[CONCLUSION]{.underline}**

For all of the foregoing reasons, we respectfully request this Court to
find: (1) that the matter before it constitutes a ripe
\"case-or-controversy\"; (2) that abstention is not warranted; (3) that
the ADA permits a challenge to zoning ordinances and practices based
upon disparate impact theory; and (4) that the ADA requires reasonable
modifications to zoning ordinances and zoning enforcement activities,
where necessary to avoid discriminating on the basis of disability.

Respectfully submitted,

PAUL M. GAGNON DEVAL L. PATRICK

United States Attorney 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 CHRISTOPHER J. KUCZYNSKI

New Hampshire Attorneys

Chief, Civil Division Public Access Section

55 Pleasant Street Civil Rights Division

Room 312 U.S. Department of Justice

Concord, New Hampshire 03301 P.O. Box 66738

\(603\) 225-1552 Washington, D.C. 20035-6738

\(202\) 307-0663

[^1]: ^?^ The time limit within which an appeal filed pursuant to N.H.
    RSA 677:15 must be filed, the form of the appeal, and the grounds on
    which such an appeal must be based, are exactly the same as those
    prescribed by N.H. RSA 677:4 for appeals of the decisions of the
    Zoning Board of Adjustment. N.H. RSA 677:15 reads, in pertinent
    part:

    > . . . Any persons aggrieved by any decision of the planning board
    > concerning a plat or subdivision may present to the superior court
    > a petition, duly verified, setting forth that such decision is
    > illegal or unreasonable in whole or in part and specifying the
    > grounds upon which the same is claimed to be illegal or
    > unreasonable. Such petition shall be presented to the court within
    > 30 days after the filing of the decision in the office of the
    > planning board. . . .

    N.H. RSA 677:15.1.

[^2]: ^?^ We believe that no exhaustion of administrative remedies is
    required. However, assuming, [arguendo]{.underline}, that the
    plaintiff in the instant case was at least required to apply for a
    special exception prior to filing this action, [see]{.underline}
    [Oxford House, Inc. v. City of Virginia Beach]{.underline}, 825 F.
    Supp. 1251, 1263 (E.D. Va. 1993), this requirement has been met. The
    plaintiff has applied for and has been denied a special exception to
    the Laconia zoning ordinance.

[^3]: ^?^ In [Township of Cherry Hill]{.underline}, the defendant
    claimed to have denied Oxford House residents a certificate of
    occupancy because they did not meet the zoning ordinance\'s
    definition of a \"family,\" which could include both related and
    unrelated persons living in a single residence. The court does not
    discuss whether the plaintiffs did or were required to exhaust state
    administrative remedies prior to filing their complaint. However, a
    New Jersey statute provides that \"\[a\]ppeals to the board of
    adjustment may be taken [by any interested party affected by any
    decision of an administrative officer of the municipality based on
    or made in the enforcement of the zoning ordinance or official
    map.]{.underline}\" N.J.S.A. 40:55D-72.1(a) (1991) (emphasis added).
    Apparently, then, a state administrative procedure did exist by
    which the plaintiffs may have sought relief prior to filing their
    federal court action. Though the plaintiffs apparently did not avail
    themselves of this appeal process, the court entertained their FHAA
    claims.

[^4]: ^?^ The principles of abstention outlined in [Pullman v. Railroad
    Commission of Texas]{.underline}, 312 U.S. 496 (1941) are
    inapplicable here, since this case does not present unclear issues
    of state law which may be dispositive of a case brought on federal
    constitutional grounds. Nor are the issues involved here so complex
    and so fundamentally a matter of state and local concern that
    abstention would be warranted under [Burford v. Sun Oil
    Co.]{.underline}, 319 U.S. 315 (1943). Finally, the plaintiff in
    this action is not seeking to enjoin a state criminal or civil
    proceeding. [See]{.underline} [Younger v. Harris]{.underline}, 401
    U.S. 37 (1971); [Casa Marie v. Superior Court]{.underline}, 988 F.2d
    252 (1st Cir. 1993).

[^5]: ^?^ Elsewhere in the same regulation specific forms of conduct are
    prohibited because they have a discriminatory effect upon
    individuals with disabilities. The use of criteria or methods of
    administration which \"have the purpose or effect of defeating or
    substantially impairing accomplishment of the objectives of the
    public entity\'s program with respect to individuals with
    disabilities\" is prohibited. 28 C.F.R. § 35.130(b)(3)(ii) (1993). A
    public entity\'s selection of a site for its services, programs, or
    activities cannot \"have the effect of\" excluding individuals with
    disabilities from participation, denying them benefits, or otherwise
    subjecting them to discrimination, and cannot have the \"purpose or
    effect\" of defeating or substantially impairing the accomplishment
    of the objectives of the services, program, or activity, with
    respect to persons with disabilities. 28 C.F.R. § 35.130(b)(4)(i)
    and (ii) (1993). Finally, subsection 8 of the regulation says that a
    public entity \"shall not impose eligibility criteria that screen
    out or tend to screen out an individual with a disability or any
    class of individuals with disabilities from fully and equally
    enjoying any service, program, or activity\" unless the criteria are
    necessary for provision of the service, program, or activity. 28
    C.F.R. § 35.130(b)(8) (1993).

[^6]: ^?^ Indeed, the preamble states [ver]{.underline}
    [batim]{.underline} in connection with its discussion of §
    35.130(b)(3)(ii) of the regulation what the House Education and
    Labor Committee said about section 102(b)(3) of the ADA.
    [Compare]{.underline} 28 C.F.R. App. A, [with]{.underline} House
    Report Part II at 61, [reprinted in]{.underline} 1990 U.S.C.C.A.N.
    at 343.

[^7]: ^?^ Whether the obligation to modify policies, practices, and
    procedures will actually require the defendant in this case to allow
    LRCAB\'s intended use of 24 Canal Street depends on such factors as:
    (1) whether other private clubs have been granted special exceptions
    allowing them to use facilities in or near the downtown area; (2)
    whether other facilities are available for the same use in other
    parts of Laconia; (3) whether, if such other facilities exist, they
    would be in all respects as desirable for LRCAB\'s intended use; (4)
    whether Cornerbrdige\'s use of the facilities at 24 Canal Street
    would adversely affect the downtown area; and (5) whether all of the
    facts developed at trial suggest that the defendant\'s reason for
    denying the special exception was pretextual. These factors are by
    no means the only ones that a court should consider. Determinations
    of what constitutes a \"reasonable\" modification to policies,
    practices, and procedures must necessarily be made on a case-by-case
    basis. No single factor is dispositive, and no bright-line test is
    possible.