96-7797
                                        To be Argued by
                                        MAYA WILEY

                     United States Court of Appeals
                         FOR THE SECOND CIRCUIT
                           Docket No. 96-7797
         INNOVATIVE HEALTH SYSTEMS, INC., MARTIN A., MARIA B.,
                        and JOHN DOES NOS. 1-3,
                         Plaintiffs-Appellees,
                                 - v. -
         THE CITY OF WHITE PLAINS, the ZONING BOARD OF APPEALS
            OF THE CITY OF WHITE PLAINS, TERRENCE GUERRIERE,
   Chair of the Zoning Board of Appeals of White Plains, WHITE PLAINS
       PLANNING BOARD, MARY CAVALLERO, Chair of the White Plains
                            Planning Board,
                         Defendants-Appellants.
            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE SOUTHERN DISTRICT OF NEW YORK
                 BRIEF FOR THE UNITED STATES OF AMERICA
                            AS AMICUS CURIAE

                                                MARY JO WHITE,
                                                United States Attorney for the
                                                Southern District of New York,
                                                Attorney for the United States
                                                of America.
MAYA WILEY,
JAMES L. COTT,
Assistant United States Attorneys,
     Of Counsel.
01-06697
                                96-7797
                                        To be Argued by:
                                        MAYA WILEY
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT
                           Docket No. 96-7797
         INNOVATIVE HEALTH SYSTEMS, INC., MARTIN A., MARIA B.,
                        and JOHN DOES NOS. 1-3,
                        and JOHN DOES NOS. 1-3,
                         Plaintiffs-Appellees,
                                   v.
         THE CITY OF WHITE PLAINS, the ZONING BOARD OF APPEALS
            OF THE CITY OF WHITE PLAINS, TERRENCE GUERRIERE,
   Chair of the Zoning Board of Appeals of White Plains, WHITE PLAINS
       PLANNING BOARD, MARY CAVALLERO, Chair of the White Plains
                             Planning Board
                                        Defendants-Appellants.
            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE SOUTHERN DISTRICT OF NEW YORK
                 BRIEF FOR THE UNITED STATES OF AMERICA
                            AS AMICUS CURIAE
                                        MARY JO WHITE,
                                        United States Attorney for the
                                        Southern District of New York,
                                        Attorney for the United States
                                        of America.
MAYA WILEY,
JAMES L. COTT,
  Assistant United States Attorneys,
     Of Counsel.
01-06698
                           TABLE OF CONTENTS
                                                             PAGE
Preliminary Statement ....................................... . 1
Statement of Interest ....................................... . 3
Issues Addressed by Amicus .................................. . 4
Statement of the Case ....................................... . 4
        A. Statement of facts
                1. The 33 South Broadway Leased Space ..........4
                2. IHS' "Change of Use" Application for
                the Southern Portion of the Leased Space .......6
                3. IHS' Application to Renovate the
                Northern Portion of the Leased Space .......... 8
                4. The Zoning Board's Revocation of IHS' Permit.9
        B. The District Court Proceedings .................... 10
        C. The District Court Decision ....................... 11
Summary of Argument ...........................................15
ARGUMENT
POINT I THE DISTRICT COURT CORRECTLY DETERMINED
        THAT IHS HAS STANDING TO SUE UNDER THE
        ADA AND THE REHABILITATION ACT .................... 7
A       IHS Has Standing to Sue Under the ADA ............. 17
        1.      The ADA's Plain Language and
                Legislative History Demonstrate
                That IHS Has Standing to Sue
                Under Title II of the ADA .................... 17
        2.      The Department of Justice's Interpretation
                of Title II of the ADA Supports IHS'
                Standing To Sue .............................. 20
        3.      Case Law Supports
                IHS' Standing to Sue ......................... 23
B               IHS Has Standing to Sue Under
                Section 504 of the Rehabilitation Act ............. 25
                                   i
01-06699
POINT II        THE DISTRICT COURT CORRECTLY DETERMINED THAT
                THE ADA AND THE REHABILITATION ACT APPLY TO
                ZONING ENFORCEMENT ACTIVITIES UNDERTAKEN BY
                PUBLIC ENTITIES ................................... 27
A.              The Text and Legislative History of Title
                II of the ADA and Section 504 of the
                Rehabilitation Act Demonstrate Congressional
                Intent to Cover Local Zoning Activities ............28
                        1. Title II of the ADA .....................28
                        2. Section 504 of the Rehabilitation Act ...31
B.              The Department of Justice Interprets Title II to
                Apply to Local Zoning Activities ...................32
C.              Courts Have Construed the Rehabilitation Act to
                Apply to Discriminatory Zoning Activities and
                the Same Analysis Should Apply to Title II ........ 35
D.              Construing Title II to Cover Zoning Is
                Consistent with Other Civil Rights Laws ........... 40
POINT III       THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
                IN GRANTING THE PRELIMINARY INJUNCTION ............ 42
A.              The Standard of Review .............................42
B.              The District Court Had Sufficient Evidence
                of Discriminatory Animus to Support Its
                Finding of Likelihood of Success on the Merits .... 44
C.              The District Court Did Not Abuse Its
                Discretion in Finding That IHS Had
                Demonstrated Irreparable Harm ......................45
CONCLUSION .........................................................47
                          TABLE OF AUTHORITIES
                                 CASES
Abdul Wali v. Coughlin, 754 F.2d 1015 (2d Cir. 1985) ........ 43
AFGE, Local 2052 v. Reno, 992 F.2d 331 (D.C. Cir. 1993) ..... 22
Casa Marie, Inc. v. Superior Court, 988 F.2d 252 (1st
Cir. 1993) .............................................. 40, 41
Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) ...................... 21, 33
                                   ii
01-06700
City of Edmonds v. Washington State Building Code
Council, 18 F.3d 802 (9th Cir. 1994), aff'd, 115
S. Ct. 1776 (1995) .......................................... 41
Civic Association of the Deaf of the City of New York,
Inc. v. Guiliani, 915 F. Supp. 622 (S.D.N.Y. 1996) .......... 21
Cleburne Living Center, Inc. v. City of Cleburne, 726
F.2d 191 (5th Cir. 1984), aff'd in part, 473 U.S.
432 (1985) .................................................. 36
Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir.
1995), cert. denied, 116 S. Ct. 711 (1996) .................. 29
Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994) ............... 25
Concerned Parents to Save Dreher Park Center v. City of
West Palm Beach, 846 F. Supp. 986 (S.D. Fla.
1994) ................................................... 23, 24
Epicenter of Steubenville v. City of Steubenville,
924 F. Supp. 845 (S.D. Ohio 1996) ........................... 25
Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35
(D.D.C. 1994) ............................................... 23
Finley v. Giacobbe, 827 F. Supp. 215 (S.D.N.Y. 1993) ........ 25
Gladstone Realtors, Inc. v. Village of Bellwood,
441 U.S. 91 (1979) .......................................... 21
Greater Los Angeles Council on Deafness, Inc. v. Zolin,
812 F.2d 1103 (9th Cir. 1987) ............................... 27
Growth Horizons, Inc. v. Delaware County,
983 F.2d 1277 (3d Cir. 1993) ................................ 25
Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert.
denied, 116 S. Ct. 64 (1995) ............................ 28, 29
Johnson v. Kay, 860 F.2d 529 (2d Cir. 1988) ................. 43
Kessler Institute for Rehabilitation, Inc. v. Mayor and
Council of Essex Fells, 876 F. Supp. 641 (D.N.J.
1995) ................................................... 23, 39
Kinney v. Yerusalim, 812 F. Supp. 547 (E.D. Pa. 1993),
aff'd, 9 F.3d 1067 (3d Cir. 1993), cert. denied,
114 S. Ct. 1545 (1994) .................................. 19, 30
LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir.
1995), cert. denied, 116 S. Ct. 2546 (1996) ................. 40
                                  iii
01-06701
Moyer v. Lower Oxford Township, 1993 WL
5489 (E.D. Pa. Jan. 6, 1993) ................................ 37
Mussington v. St. Luke's-Roosevelt Hospital Center,
824 F. Supp. 427 (S.D.N.Y. 1993), aff'd, 18 F.3d 1033
(2d Cir. 1994) .............................................. 17
Noland v. Wheatley, 835 F. Supp. 476
(N.D. Ind. 1993) ........................................ 21, 23
Oak Ridge Care Center v. Racine County, Wis., 896 F.
Supp. 867 (E.D. Wis. 1995) ...................... 23, 24, 36, 37
Oxford House, Inc. v. City of Albany, 155 F.R.D. 409
(N.D.N.Y. 1994) ............................................. 37
Oxford House, Inc. v. Township of Cherry Hill, 799 F.
Supp. 450 (D.N.J. 1992) ..................................... 29
Petersen v. University of Wisconsin Board of Regents,
818 F. Supp. 1276 (W.D. Wis. 1993) ................ ......21, 23
Potomac Group Home Corp. v. Montgomery County, Md., 823
F. Supp. 1285 (D. Md. 1993) ................................. 41
Securities and Exch. Commission v. Manor Nursing Ctrs.,
Inc., 458 F.2d 1082 (2d Cir. 1972) .......................... 42
Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2d Cir.
1995) ................................................... 42, 46
South-Suburban Housing Ctr. v. Greater South Suburban
Board of Realtors, 935 F.2d 868 (7th Cir. 1991),
cert. denied, 502 U.S. 1074 (1992) .......................... 40
Southend Neighborhood Improvement Association v. County
of St. Clair, 743 F.2d 1207 (7th Cir. 1984) ................. 40
Sullivan v. City of Pittsburgh, 811 F.2d 171 (3d Cir.),
cert. denied, 484 U.S. 849 (1987) ............... 26, 29, 35, 36
Swann v. Charlotte-Mecklenburg Board of Education, 401
U.S. 1 (1971) ............................................... 42
Thomas Jefferson University v. Shalala, 114 S. Ct. 2381
(1994) .................................................. 22, 33
Tom Dougherty Associate, Inc. v. Saban Entertainment,
60 F.3d 27 (2d Cir. 1995) ................................... 43
Tugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994) ... 21, 23, 24
                                   iv
01-06702
United Handicapped Federation v. Andre, 558 F.2d 413
(8th Cir. 1977) ............................................. 27
United States v. City of Black Jack, 508 F.2d 1179 (8th
Cir. 1974), cert. denied, 422 U.S. 1042 (1975) .............. 40
United States v. City of Charlotte, 904 F. Supp. 482
(W.D.N.C. 1995) ......................................... 38, 39
Williams v. United States, 704 F.2d 1162 (9th Cir.
1993) ....................................................... 27
STATUTES AND REGULATIONS
29 U.S.C. S 706(8)(B) ....................................... 29
29 U.S.C. S 794 et seq .................................. passim
42 U.S.C. SS 3601 et seg ............................ 25, 29, 40
42 U.S.C. S 3604 (f)(3)(B) .................................. 41
42 U.S.C. SS 12101 et seg ............................... passim
42 U.S.C. S 12101(a)(2) ..................................... 28
42 U.S.C. S 12101(a)(3) ..................................... 28
42 U.S.C. S 12101(b)(1) ..................................... 28
42 U.S.C. S 12102(2)(A) ..................................... 29
42 U.S.C. S 12112 ...... .................................... 18
42 U.S.C. S 12112(b)(4) ................................. 18, 19
42 U.S.C. S 12113(d)(3) ..................................... 31
42 U.S.C. S 12131(1)(A) ..................................... 30
42 U.S.C. S 12131(1)(B) ..................................... 30
42 U.S.C. S 12132 ................................... 13, 18, 30
42 U.S.C. S 12133 .................................... 3, 13, 18
42 U.S.C. S 12134 ........................................ 3, 25
42 U.S.C. S 12134(a) ..................................... 3, 21
42 U.S.C. S 12134(b) ........................................ 18
                                   v
01-06703
42 U.S.C. S 12182 ..................................... 18
42 U.S.C. S 12182(b) .................................. 19
42 U.S.C. S 12182(b)(1)(E) ............................ 18
42 U.S.C. S 12201 ..................................... 18
42 U.S.C. S 12206(c)(3) ............................ 3, 21
42 U.S.C. S 12210(b) .................................. 29
42 U.S.C. S 12210(c) .................................. 29
28 C.F.R. Part 35 Appendix A ...................... 21, 33
28 C.R.R. S 102(a) .................................... 35
28 C.F.R. S 35.104 ................................ 29, 30
28 C.F.R. S 35.105(a) ................................. 34
28 C.F.R. S 35.130 .................................... 33
28 C.F.R. S 35.130(a) ................................. 33
28 C.F.R. S 35.130(b)(7) .......................... 33, 41
28 C.F.R. S 35.130(g) ......................... 20, 24, 25
28 C.F.R. S 35.131 ........ ........................... 29
28 C.F.R. Part 42 ...................................... 3
LEGISLATIVE HISTORY
H.R. Rep. No. 711, 100th Cong., 2d Sess. 24 (1988),
reprinted in 1988 U.S.C.C.A.N. 2173, 2185.............. 41
H.R. Rep. No. 435 (III), 101st Cong., 2d Sess. 51
(1990), reprinted in 1990 U.S.C.C.A.N. 303, 474 ....... 19
H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 84
(1990), reprinted in 1990 U.S.C.C.A.N. 303, 367 ... passim
H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 61
(1990), reprinted in 1990 U.S.C.C.A.N. 565, 570 ....... 31
134 Cong. Rec. 9606, E1310 (April 29, 1988) ........... 31
134 Cong. Rec. 4259, S2422 (March 17, 1988) ........... 32
                                   vi
01-06704
                             MISCELLANEOUS
Americans with Disabilities Act Title II
Technical Assistance Manual (1993) ......... 4, 21, 22, 34
Executive Order No. 12250, 45 Fed. Reg. 72995 at 72,997... 3
                                  vii
01-06705
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT
                           Docket No. 96-7797
                    INNOVATIVE HEALTH SYSTEMS, INC.,
                        MARTIN A., MARIA B., and
                          JOHN DOES NOS. 1-3,
                                        Plaintiffs-Appellees,
                                  -v.-
                       THE CITY OF WHITE PLAINS,
                   the ZONING BOARD OF APPEALS OF THE
                     CITY OF WHITE PLAINS, TERRENCE
                GUERRIERE, Chair of the Zoning Board of
                 Appeals of White Plains, WHITE PLAINS
                 PLANNING BOARD, MARY CAVALLERO, Chair
                  of the White Plains Planning Board,
                                        Defendants-Appellants.
        BRIEF FOR THE UNITED STATES OF AMERICA AS AMICUS CURIAE

                         Preliminary Statement

        Defendants-appellants the City of White Plains, the Zoning
Board of Appeals of the City of White Plains ("ZBA"), Terrence
Guerriere, Chair of the ZBA, the White Plains Planning Board,
Mary Cavallero, Chair of the White Plains Planning Board,
(hereinafter collectively referred to as "defendants" or "the
City") appeal from a June 12, 1996 Memorandum Decision and Order
("Memorandum and Order") of the United States District Court for
the Southern District of New York (the Honorable Barrington D.
Parker, Jr., J.) granting plaintiffs-appellees' motion for a
                                   1
01-06706
preliminary injunction. JA 519-564.* The Memorandum and Order
is reported at 931 F. Supp. 222-45. Plaintiffs-appellees,
Innovative Health Systems, Inc. ("IHS"), a drug and alcohol
rehabilitation treatment center, and Martin A. and Maria B.,
clients of IHS (hereinafter collectively referred to as
"plaintiffs" or "IHS"), had sued the City alleging violations of
both Title II of the Americans with Disabilities Act ("ADA"), 42
U.S.C. SS 12101 et seq., and section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. S 794, for discriminatory zoning decisions
in refusing to permit IHS to operate its treatment program in
downtown White Plains.

        Under both the ADA and the Rehabilitation Act, as the
district court correctly found, IHS has standing to sue for
discrimination suffered as a result of its association with
individuals with disabilities. Moreover, the district court
correctly ruled that both the text and the legislative history of
Title II of the ADA and the Rehabilitation Act make clear that
their broad prohibitions against discrimination include zoning
activities such as those involved in this case. As is discussed
below, the district court's rulings are further supported by the
administrative interpretation of Title II of the ADA and by
judicial interpretation of language similar to that of Title II
in other civil rights statutes.

        Finally, the district court did not err in granting a
_________________________

        *       References to the Joint Appendix are denoted as "JA" with
appropriate page numbers inserted; defendants-appellants' brief is
referred to as "Br."
                                   2
01-06707
preliminary injunction. As the court recognized, the harm to IHS
in the absence of an injunction -- denial of crucial treatment to
drug and alcohol-dependent individuals -- far outweighs any harm
to the City caused by the issuance of an injunction. In
addition, the district court correctly concluded that IHS has
demonstrated a likelihood of success on the merits. In denying
IHS' application, the City ignored the determinations of both its
Building Commissioner and its Corporation Counsel that IHS'
treatment program was a permitted use of office space in the
relevant zoning district. It also ignored the fact that the City
has permitted other entities offering services similar to those
of IHS within the same zoning district. The City's conclusion
that IHS' program did not qualify as an "office" use was made in
an atmosphere of public opposition that the district court
correctly found was based upon bias against the program's clients
on the basis of their disabilities.

                         Statement of Interest

        The United States through the Department of Justice ("the
Department") has significant responsibilities for implementing
and enforcing the ADA, the statute on which plaintiffs' claims
are largely predicated.* See 42 U.S.C. SS 12133, 12134.
Pursuant to 42 U.S.C. SS 12134(a) and 12206(c)(3), the Department
has issued regulations and a Technical Assistance Manual
___________________

        *       Similarly, the United States has substantial
responsibility for enforcing section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. S 794, which is also at issue in this action.
See Executive Order No. 12250, 45 Fed. Reg. 72995 at 72,997; 28
C.F.R. pt. 42, subpart G (1995).
                                   3
01-06708
implementing and interpreting Title II of the ADA. See 28 C.F.R.
Pt. 35 (1995); Americans with Disabilities Act Title II Technical
Assistance Manual (1993).* Accordingly, the United States, which
also filed an amicus brief in the district court, has a strong
interest in ensuring that the case law developed regarding
associational standing to sue under the ADA and the ADA's
application to zoning enforcement activities undertaken by public
entities is consistent with the United States' interpretation of
the statute and the Department's regulations implementing Title
II.

                       Issues Addressed by Amicus

        1. Whether the district court correctly determined that
IHS has standing to sue under Title II of the ADA and section 504
of the Rehabilitation Act.

        2. Whether the district court correctly determined that
Title II of the ADA and section 504 of the Rehabilitation Act
apply to zoning enforcement activities undertaken by public
entities.

        3. Whether the district court abused its discretion in
granting IHS a preliminary injunction.

                         STATEMENT OF THE CASE

        A. Statement of Facts

                1. The 33 South Broadway Leased Space
        IHS is a New York State-certified alcohol and drug
__________________

        *       The Techical Assistance Manual is annexed to this brief
as Addendum A.
                                   4
01-06709
dependence treatment program currently operating at 7 Holland
Avenue in an outlying neighborhood of White Plains consisting of
both residences and businesses. It operates in 2,900 square feet
at this location, and has been there since 1985. JA 79-80. IHS
serves approximately 85 clients with attendance schedules ranging
from one to five visits per week lasting from a half hour to four
hours per visit. JA 80. IHS provides individual, group, and
family counseling on an outpatient basis and employs
psychologists, social workers, and certified addiction counselors
to provide these services. JA 5, 80. IHS provides no physical
examinations of clients and does not dispense any medications. JA
80. Its clients must be drug and alcohol free in order to
participate in IHS' treatment program. JA 98. Plaintiffs Martin
A. and Maria B. reside in White Plains. JA 12, 102. Martin A.
Completed treatment at IHS shortly before the complaint was
filed, JA 12, and Maria B. was receiving treatment at IHS for
alcohol and drug dependence at the time the complaint was filed.
JA 12, 102.
        In January 1994, IHS leased the first floor of a building
known as 33 South Broadway in downtown White Plains. JA 80.
IHS' leased space at 33 South Broadway consists of 22,000 square
feet and has only one entrance, which is on South Broadway. JA
80-81. It is around the corner from the entrance into the
separate residential portion of the building, known as Cameo
House, which is on Martine Avenue. JA 81. The entrance to Cameo
House is one floor higher than IHS' leased space. JA 81. IHS'
                                   5
01-06710
leased space has two portions with permits for two different
uses: the southern portion (approximately 10,000 square feet) has
a permit for use as "retail" space and the northern portion
(approximately 12,000 square feet) has a permit for use as
"office" space. JA 65, 92-93, 94, 96.
        The 33 South Broadway space is in the BR-4 Zoning District,
JA 64-65, 92, which is a high-density mixed-use zone that allows
a combination of 'retail, office, governmental, and service
business uses appropriate for the role of the City as a regional
center, in addition to encouraging high density housing in
combination therewith." City of White Plains Zoning Ordinance S
5.5.1.9. JA 92. 33 South Broadway contains residences, retail
businesses, and professional offices, including offices of
psychiatrists and social workers. JA 92, 100.
           2.   IHS' "Change of Use" Application for the
                Southern Portion of the Leased Space
        By letter dated December 22, 1992, the Deputy Commissioner
of the City's Building Department advised IHS that its proposed
use of the southern portion of the space at 33 South Broadway for
"counseling offices only with no physicians on staff for physical
examination or dispensing of medication . . . would qualify the
use as a business/professional office." JA 107. In April 1994,
IHS applied for a change of use of the southern portion of the
space from "retail" to "office," as the space had previously been
used as a retail furniture store. JA 65-66, 93. By letter dated
May 3, 1994 to defendant Mary Cavallero, Chair of the Planning
Board, the Building Commissioner referred IHS' request to the
                                   6
01-06711
Planning Board for approval under Zoning Ordinance S 7.2.2 and
recommended that the application be approved. JA 17.
        On May 11, 1994 and June 8, 1994, the Planning Board met
regarding IHS' change of use application. JA 66, 94. During
these meetings, Cameo House residents and neighbors stated that
they did not want recovering alcoholics and drug users in their
community because they were afraid of them, that IHS clients
would create a "security" risk, that IHS' relocation to 33 South
Broadway would reduce their property values, and that IHS'
clients would attract other undesirable people to the community.
JA 95. Prior to the May meeting, attorneys for Cameo House
Owners, Inc., a co-operative association representing the owners
of Cameo House, and Fashion Mall Partners, L.P. ("Fashion Mall"),
the owner of The Westchester, a shopping mall with an entrance
across the street from 33 South Broadway, filed objections to
IHS' proposed change of use application. JA 66, 94. Cameo House
and Fashion Mall argued that IHS' proposed use of the southern
space was prohibited because IHS was properly categorized as a
"clinic," "sanatorium" or an office for physicians or dentists,
which they argued was not a permitted "professional office." JA
66.
        By letter dated July 21, 1994, the Building Commissioner
informed the Planning Board that he had reviewed information
submitted by IHS, had personally visited IHS and reviewed
additional information submitted to him, and had considered
whether IHS' proposed use of the "retail" space at 33 South
                                   7
01-06712
Broadway was appropriately an "office" or a "clinic." JA 67,
108. He stated that he "still [believed] that the proposed use
would be an office use under zoning." JA 67, 96, 108. Despite
this favorable opinion, on August 9, 1994, IHS withdrew its
change of use application, because of the community's continuing
opposition. JA 67, 96.
          3. IHS' Application to Renovate the Northern
             Portion of the Leased Space
        On August 9, 1994, IHS applied for a building permit to
renovate the northern portion of the leased space. It did not
have to file a change of use application for this portion of the
space, because it had already been classified for an "office"
use. JA 67, 96. Nonetheless, Cameo House and Fashion Mall
immediately opposed IHS' renovation application. JA 68. In
September and October 1994, opponents submitted letters to the
Building Commissioner and to the Mayor opposing IHS' use of the
northern portion of the space as an "office," voicing concerns
about their safety and security. JA 68-70, 115-30.
        In the fall of 1994, the Building Commissioner requested
that the White Plains Corporation Counsel conduct a legal review
of IHS' proposal for the renovation of the northern portion of
the space. JA 70. On December 14, 1994, the Commissioner of
Building issued a determination letter that IHS' proposed use of
the "office" portion of 33 South Broadway was considered an
office use under the Zoning Ordinance. JA 71-72, 96-97, 134-35.
After considering written materials and legal arguments submitted
by Cameo House and Fashion Mall, the Corporation Counsel issued a
                                   8
01-06713
written opinion dated December 19, 1994. JA 70, 132-33. In that
opinion, he determined that IHS' program was a permissible
"office" use, stating that "it is our opinion that [the Building
Commissioner's] interpretation [of IHS' program as an office use]
is correct and that the proposed use may be permitted in the
chosen location." JA 70, 133. The Corporation Counsel further
stated that "we have carefully reviewed the documents received
from [counsel for Cameo House and Fashion Mall and] [w]e find
their submissions to be unpersuasive." JA 70, 132. He
specifically rejected as "irrelevant" the argument that IHS'
treatment program should be deemed an "out-patient clinic"
falling within the Zoning Ordinance's definition of "hospitals or
sanitaria." JA 71, 133.
        On January 23, 1995, the Building Commissioner issued IHS a
permit to renovate the northern portion of the leased space. Id.
           4. The Zoning Board's Revocation of IHS' Permit
        On February 8, 1995, Cameo House appealed the Building
Commissioner's determination to the Zoning Board. JA 72, 92. In
its appeal, Cameo House renewed its argument that IHS was a
"clinic" or "sanitarium." JA 72, 97. On March 30, 1995, Fashion
Mall joined Cameo House's appeal. JA 72. The Zoning Board
conducted a public hearing on the appeal on April 5, 1995 and
continued the hearing on May 3, 1995. JA 72, 97. At the April
5th hearing, opponents repeatedly expressed their disdain for
people recovering from alcohol or drug dependencies by referring
to them as "undesirable elements." JA 72-73, 97-99.
                                   9
01-06714
        The Building Commissioner, in a letter dated April 4, 1995
to the chair of the Zoning Board, reiterated that the layout and
operation of IHS was "consistent with an office use," noting that
IHS had "no facilities for performing physical examinations or
dispensing medication, or for overnight accommodation of either
staff or clients." JA 74. Nonetheless, on July 5, 1995, the
Zoning Board voted 4-1 to reverse the Building Commissioner's
decision to permit IHS to renovate the northern portion of its 33
South Broadway leased space, concluding that IHS was a "clinic"
that was not permitted in the zoning district. JA 74, 99. It
did so despite the undisputed fact that other counseling services
and outpatient medical care facilities are permitted to operate
in the same zoning district, and have not been categorized as
"clinics" or "hospitals or sanitaria." JA 100.*
           B. The District Court Proceedings
        Following the Zoning Board's decision, plaintiffs filed
their complaint on November 14, 1995, seeking declaratory,
injunctive, and monetary relief under the ADA and the
Rehabilitation Act for alleged discrimination and failure to make
reasonable modification to policies and practices or to
reasonably accommodate their disabilities. JA 4, 9-38.
____________________

        *       For example, counseling activities are conducted in other
professional offices on the first residential floor of Cameo House.
JA 100. Moreover, the Health Insurance Plan of Greater New York
("HIP") has recently located a new medical facility at 15 North
Broadway, which is only a few blocks from IHS' leased space and
within the same zoning district, providing diagnostic, examination,
and superficial medical treatment, and was not categorized as a
clinic. JA 76.
                                   10
01-06715
Plaintiffs moved for a preliminary injunction on December 29,
1995, JA 62-63, alleging that the denial of their application to
lease the 33 South Broadway space caused irreparable harm due to
the deprivation of treatment needed to recover from addiction or
prevent relapse. JA 77-78, 83-90. Plaintiffs argued further
that there was a likelihood of success on the merits of their
claims because there was sufficient evidence that defendants had
discriminated against plaintiffs on the basis of their
disabilities. JA 92-100.
        The City opposed plaintiffs' motion for a preliminary
injunction and cross-moved to dismiss the complaint on grounds
that (1) its denial of IHS' renovation permit was not covered by
the ADA or the Rehabilitation Act because the enforcement or
interpretation of a zoning ordinance is not "a service, program
or activity" of a public entity under either the ADA or the
Rehabilitation Act; (2) plaintiffs lacked standing; (3) neither
the ADA nor the Rehabilitation Act required defendants to accord
IHS preferential treatment; and (4) plaintiffs failed to
demonstrate a likelihood of success on the merits and irreparable
harm. JA 452-55.
        The United States subsequently filed an amicus brief on
April 11, 1996 in support of plaintiffs' application for a
preliminary injunction and in opposition to defendants' motion to
dismiss.
        C. The District Court Decision
        By Memorandum Decision and Order dated June 12, 1996, the
                                   11
01-06716
district court granted plaintiffs' motion for an injunction and
denied defendants' cross-motion to dismiss. JA 550-64 (931 F.
Supp. at 239-45).* The district court first addressed the
question of whether plaintiffs' claims, based upon a zoning
ordinance, were within the scope of the ADA and the
Rehabilitation Act. JA 525-33 (931 F. Supp. at 230-33). In
ruling in plaintiffs' favor on this issue, the district court
found that zoning activities are "services, programs or
activities" covered by Title II of the ADA. JA 530 (931 F. Supp.
at 232). It noted that an "activity" is defined as a "natural or
normal function or operation" as defined in Webster's Third New
International Dictionary, and concluded that "[b]ecause zoning is
a normal function or operation of a governmental entity the plain
meaning of 'activity' clearly encompasses zoning." JA 529 (931
F. Supp. at 232).
        The district court further observed that nothing in the text
nor in the legislative history excludes zoning from the ADA's
coverage. JA 529-30 (931 F. Supp. at 232). Indeed, the court
remarked that the ADA was to be broadly construed to effectuate
its purpose, and its legislative history confirmed its wide
sweep. JA 530 (931 F. Supp. at 232). In addition, the district
court relied upon the Department of Justice's interpretation of
Title II to reach zoning enforcement actions by public entities.
_______________________

        * The district court granted the motion to dismiss defendant
Mayor of White Plains, S.J. Schulman. JA 548 (931 F. Supp. at
239). The United States takes no position with respect to this
ruling.
                                   12
01-06717
JA 531 (931 F. Supp. at 232-33). In so ruling, the district
court found unpersuasive other district court rulings that Title
II did not cover zoning activities because those decisions had
provided no analyses in support of their conclusions. JA 526-30
(931 F. Supp. at 231-32). The district court also ruled that the
Rehabilitation Act applied to claims of discrimination in zoning.
JA 532-35 (931 F. Supp. at 233-34).
        In addition to ruling that zoning was not excluded from the
ADA's mandate, the district court held that plaintiffs had
standing to sue under the ADA and the Rehabilitation Act. JA
536-45 (F. Supp. at 234-38). Rejecting defendants' arguments
that IHS did not have standing because it was not an "individual
with a disability" under the ADA, 42 U.S.C. S 12132, and the
Rehabilitation Act, 29 U.S.C. S 794, but merely an entity that
serves the disabled, the district court ruled that the language
of the applicable laws, their legislative histories, and the
implementing regulations all support the conferral of standing
"on a broader class of people than just 'individuals with
disabilities.'" JA 540 (931 F. Supp. at 236). Specifically, the
court ruled that the plain meaning of the ADA, which extends
relief to "any person alleging discrimination on the basis of
disability," 42 U.S.C. S 12133, makes clear that "anyone injured
by a covered entity's discrimination against an individual on the
basis of that individual's disability" may sue. JA 539-40 (931
F. Supp. at 236). Moreover, the court observed that, under both
the language of the statute and relevant case law, entities who
                                   13
01-06718
are injured by discrimination on the basis of disability have
standing under the Rehabilitation Act even though they are not
disabled themselves. JA 540 (931 F. Supp. at 236-37).*
        After resolving these issues, the district court considered
plaintiffs' motion for a preliminary injunction. JA 550-64 (931
F. Supp. at 239-45). It initially rejected the City's argument
that a higher standard of likelihood of success for a mandatory
injunction should apply, finding that the injunction sought by
IHS was prohibitory, not mandatory. JA 551 (931 F. Supp. at
240). It noted that the relief sought by IHS would simply
"prohibit[] defendants from interfering with the issuance of a
building permit and IHS' renovation and occupation of the South
Broadway site," id., and that such relief would "not require
defendants to perform an act, but merely to refrain from
performing one." Id.
        The district court next concluded that plaintiffs had
sufficiently demonstrated irreparable harm, finding that the
deprivation of treatment required to recover from an addiction or
prevent relapse constitutes irreparable harm. JA 552-54 (931 F.
Supp. at 240-41). It further observed that there was sufficient
evidence of inconvenience and lack of space at IHS' current site
that the City's opposition to IHS' relocation to 33 South
Broadway interfered with, disrupted, and prevented clients from
receiving necessary treatment. JA 552-53 (931 F. Supp. at 241).
______________________

        * The district court also held that the individual
plaintiffs had standing because they adequately alleged injury-in-
fact. JA 545 (931 F. Supp. at 237-38).
                                   14
01-06719
        Finally, the district court concluded that plaintiffs had
established a likelihood of success on the merits because the
evidence supported a finding of discriminatory animus based on
the "highly questionable" nature of the City's interpretation of
its Zoning Ordinance. JA 559 (931 F. Supp. at 243).
Specifically, it found
        that defendants were operating in the context
        of intense political pressure from important
        components of the community against IHS'
        relocation to the South Broadway site, and
        that defendants inexplicably failed to defer
        to the Commissioner of Building, an agency
        entitled to their deference, which had
        determined and then confirmed with public
        counsel that IHS' use was permitted. This
        constellation of factors leads to the
        conclusion that the defendants permitted
        illegal prejudices to influence their
        decision-making process, which is all that
        plaintiffs are required to show.
JA 559 (931 F. Supp. at 243).
                          Summary of Argument
        The district court correctly determined that IHS has
standing to sue under the ADA and the Rehabilitation Act. Title
II of the ADA and Section 504 of the Rehabilitation Act each
confer IHS with standing to sue, as demonstrated by their plain
language and legislative history. Moreover, the Department of
Justice's interpretation of Title II, which is entitled to
controlling weight, supports IHS' standing to sue. See Point I,
infra.
        The district court also correctly determined that the ADA
and the Rehabilitation Act apply to zoning enforcement activities
                                   15
01-06720
undertaken by public entities. Both the text and the legislative
history of these statutes demonstrate congressional intent to
cover local zoning activities. Moreover, the Department of
Justice explicitly interprets Title II of the ADA to apply to
local zoning activities. In addition, the construction of the
ADA and the Rehabilitation Act to cover zoning is consistent with
other civil rights statutes. See Point II, infra.
        Finally, the district court did not abuse its discretion in
granting a preliminary injunction. In denying IHS' application,
the City ignored the determinations of both its Building
Commissioner and Corporation Counsel that IHS' counseling program
was a permitted use of office space in the relevant zoning
district, and that the City has permitted other health care
professionals to provide their health services within the same
zoning district. Thus, the district court had ample evidence
before it to determine that IHS was likely to establish that the
City's denial of IHS' application was a pretext, and illegally
rendered in response to the discriminatory animus of residents of
33 South Broadway and its neighbors. See Point III, B, infra.
Moreover, the district court did not abuse its discretion in
determining that IHS would be imminently harmed in the event that
it did not grant preliminary relief. The evidence plainly
demonstrated that the inconvenience and lack of space at IHS'
current location has interfered with, disrupted, and prevented
treatment of current and potential clients. See Point III, C,
infra.
                                   16
01-06721
                                ARGUMENT
                                POINT I
                THE DISTRICT COURT CORRECTLY DETERMINED THAT
                IHS HAS STANDING TO SUE UNDER THE ADA AND THE
                REHABILITATION ACT
        A. IHS Has Standing to Sue Under the ADA
                1. The ADA's Plain Language and Legislative
                   History Demonstrate That IHS Has Standing to
                   Sue Under Title II of the ADA
        The City argues that Title II of the ADA provides no express
reference to entities suffering discrimination based on their
association with individuals with disabilities. Br. at 44-45.
Because Titles I and III expressly refer to this coverage, the
City argues that Congress did not intend to confer standing on an
entity such as IHS under Title II. Id. at 48-49. The City's
argument is without merit.*
        Because Congress has conferred standing under the ADA upon
entities discriminated against on the basis of their association
with individuals with disabilities, the district court correctly
found that IHS has standing to sue under Title II of the ADA.
Congress granted broad enforcement powers under Title II of the
_____________________

        * The City admitted below that plaintiffs Martin A. and
Maria B. were covered by the ADA and the Rehabilitation Act, but
argued that their alleged harm was too speculative. However, as
the district court correctly found, plaintiffs only allege a
threatened harm; here, plaintiffs' allegations that they may need
IHS' services again and that it would continue to be difficult to
access IHS' services are sufficient. See JA 545 (931 F. Supp. at
238) (citing Mussington v. St. Luke's-Roosevelt Hospital Center,
824 F. Supp. 427, 430-31 (S.D.N.Y. 1993) (former patients had
standing to challenge hospital's relocation of services out of
their neighborhood, even though they were not current patients and
the services were only moving fifty blocks away), aff'd, 18 F.3d
1033 (2d Cir. 1994)).
                                   17
01-06722
ADA, which prohibits discrimination on the basis of disability in
general terms, 42 U.S.C. S 12132, and extends relief to "any
person alleging discrimination on the basis of disability." 42
U.S.C. S 12133 (emphasis added). That "person" need not be an
individual with a disability, but may be an entity or anyone who
is injured by a covered entity's discrimination, as evidenced by
the express protection from discrimination that Congress
conferred on individuals and entities on the basis of association
with individuals with disabilities. Both Titles I and III make
clear that the ADA applies to discrimination against individuals
and entities on the basis of association. See 42 U.S.C.
S 12182(b)(1)(E) (explicitly in Title III's list of prohibited
discrimination is that against "an individual or entity because
of the known disability of an individual with whom the individual
or entity is known to have a relationship or association"); see
also 42 U.S.C. S 12112(b)(4) (Title I provision prohibiting
discrimination on the basis of association).
        Titles I and III provide numerous specific provisions
defining prohibited discrimination. 42 U.S.C. SS 12112 and
12182. Rather than repeating those specific provisions in Title
II, Congress simply prohibited discrimination by public entities
in general terms. 42 U.S.C. S 12132. Congress explicitly
required in Title II, however, that the Department of Justice's
Title II regulations be "consistent with this chapter," 42 U.S.C.
S 12134(b), meaning consistent with the entire Act. See
"References In Text" to 42 U.S.C. S 12201 ("Construction").
                                   18
01-06723
Thus, the general non-discrimination provisions of Title II
encompass the more specific types of discrimination, including
discrimination on the basis of association, that are set forth in
Titles I and III.
        The legislative history underscores Congress' intent that
Title II include the prohibition of discrimination on the basis
of association. In emphasizing its intent that Title II's
prohibitions "be identical to those set out in the applicable
provisions of titles I and III of this legislation. . .," H.R.
Rep. No. 485 (II), 101st Cong., 2d Sess. 84 (1990), reprinted in
1990 U.S.C.C.A.N. 303, 367, the House Committee on Education and
Labor directed that "the construction of 'discrimination' set
forth in section 302(b) (42 U.S.C. S 12182(b)) should be
incorporated in the regulations implementing this title." Id.
The House Committee on the Judiciary report explained that
"[t]itle II should be read to incorporate provisions of titles I
and III . . . such as Section 102(b)(4) of the ADA [42 U.S.C.
S 12112(b)(4)]." H.R. Rep. No. 435 (III), 101st Cong., 2d Sess.
51 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 474. Therefore,
Title II's protections must be read to be consistent with Title
III's protections. See Kinney v. Yerusalim, 9 F.3d 1067, 1073
n.6 (3d Cir. 1993) (noting that this legislative history shows
that Congress intended Titles II and III to be read
consistently), cert. denied, 114 S. Ct. 1545 (1994).
                                   19
01-06724
        2. The Department of Justice's Interpretation of
           Title II of the ADA Supports IHS' Standing To
           Sue
        Not only does the statute itself and its legislative history
make clear that Title II prohibits discrimination against
entities associated with individuals with disabilities, the
Department of Justice regulation implementing Title II
specifically provides: "A public entity shall not exclude or
otherwise deny equal services, programs, or activities to an
individual or entity because of the known disability of an
individual with whom the individual or entity is known to have a
relationship or association." 28 C.F.R. S 35.130 (g) (1994). The
Department of Justice's preamble to the Title II regulation
further emphasizes the intent to protect entities associated with
individuals with disabilities. In discussing S 35.130 (g), the
preamble provides:
        Paragraph (g), which prohibits discrimination on the
        basis of an individual's or entity's known relationship
        or association with an individual with a disability, is
        based on sections 102 (b) (4) and 302 (b) (1) (E) (42 U.S.C.
        S 12182 (b) (1) (E)) of the ADA. . . .
        This protection is not limited to those who have a
        familial relationship with the individual who has a
        disability. Congress considered, and rejected,
        amendments that would have limited the scope of this
        provision to specific associations and relationships. .
        . .
        During the legislative process, the term "entity" was
        added to section 302 (b) (1) (E) to clarify that the scope
        of the provision is intended to encompass not only
        persons who have a known association with a person with
        a disability, but also entities that provide services
        to or are otherwise associated with such individuals.
        This provision was intended to ensure that entities
        such as health care providers, employees of social
        service agencies, and others who provide professional
                                   20
01-06725
        services to persons with disabilities are not subjected
        to discrimination because of their professional
        association with persons with disabilities.
28 C.F.R. pt. 35, App. A at 453.
        The Department of Justice's interpretations of Title II are
entitled to controlling weight. The regulation was issued
pursuant to statutory mandate. 42 U.S.C. S 12134 (a).
Accordingly, it is to be given "controlling weight unless [it is]
arbitrary, capricious, or manifestly contrary to the statute."
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844 (1984). See also Gladstone Realtors v. Village
of Bellwood, 441 U.S. 91, 103 n.9 (1979); Tugg v. Towey, 864 F.
Supp. 1201, 1205 n.6, 1208 (S.D. Fla. 1994) (according Department
of Justice's Title II regulation controlling weight regarding
coverage of discrimination on the basis of association); Civic
Ass'n of the Deaf of the City of New York, Inc. v. Guiliani, 915
F. Supp. 622, 635 (S.D.N.Y. 1996) (giving Title II regulations
controlling weight); Noland v. Wheatley, 835 F. Supp. 476, 483
(N.D. Ind. 1993) (applying Chevron to give controlling weight to
Department of Justice interpretation of Title II); Petersen v.
University of Wisconsin Bd. of Regents, 818 F. Supp. 1276, 1279
(W.D. Wis. 1993) (same). This regulation is far from "arbitrary,
capricious, or manifestly contrary to the statute." Chevron, 467
U.S. at 844. In fact, it is required by the statute and its
legislative history.
        Pursuant to statutory authority, 42 U.S.C. S 12206 (c) (3),
the Department of Justice has published its Title II Technical
                                   21
01-06726
Assistance Manual ("TA Manual") to assist the public in
understanding and complying with the statute and the regulations.
The TA Manual provides:
        A State or local government may not discriminate
        against individuals or entities because of their known
        relationship or association with persons who have
        disabilities. This prohibition applies to cases where
        the public entity has knowledge of both the
        individual's disability and his or her relationship to
        another individual or entity. In addition to family
        relationships, the prohibition covers any type of
        association between the individual or entity that is
        discriminated against and the individual or individuals
        with disabilities, if the discrimination is actually
        based on disability. . . .
TA Manual S II-3.9000 at 17 (November 1993) (emphasis added).
        The City argues that the Department of Justice's TA Manual
is not persuasive authority. Br. at 40.* This argument is
without merit. The Department of Justice's interpretation of its
own regulation, the analysis in the preamble to the regulation,
and the TA Manual are all entitled to "'controlling weight unless
it is plainly erroneous or inconsistent with the regulation.'"
Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994)
___________________

        * The City's reliance on AFGE, Local 2052 v. Reno, 992 F.2d
331, 335 (D.C. Cir. 1993), in support of this argument is
misplaced. In AFGE, Local 2052, a union employment grievance case,
the union argued that a diagram contained in the Equal Employment
Opportunity Commission's ("EEOC") guide to employee rights and
responsibilities differed from the district court's interpretation
of the statute. Id. The D.C. Circuit rejected this argument on
the ground that the applicable statute was sufficiently clear that
deference to the EEOC's interpretation of the statute was
unnecessary. Id. It further determined that even if deference
were appropriate, a diagram is not the type of agency manual that
contains an authoritative pronouncement to which a court must
defer. Id. Here, the TA Manual includes more than a mere diagram,
was promulgated for the express purpose of interpreting the
Department of Justice's regulation, and is not plainly erroneous or
inconsistent with that regulation.
                                   22
01-06727
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945)). See Tugg v. Towey, 864 F. Supp. at 1208 (relying on the
preamble regarding coverage of association); Fiedler v. American
Multi-cinema, Inc., 871 F. Supp. 35, 36 n.4 (D.D.C. 1994)
(according controlling weight to Title III Technical Assistance
Manual); Noland, 835 F. Supp. at 483 (relying on TA Manual's
interpretation of Title II); Petersen, 818 F. Supp. at 1280
(same).
                3. Case Law Supports IHS' Standing to
                   Sue
        Very few cases have addressed the issue of Title II's
protection of individuals and entities subjected to
discrimination on the basis of their association with individuals
with disabilities. Of those cases, most of the courts have
determined that an institution has standing to sue under Title
II. See Oak Ridge Care Center v. Racine County, Wis., 896 F.
Supp. 867, 872-73 (E.D.Wis. 1995); Tugg v. Towey, 864 F. Supp.
1201, 1205 (S.D. Fla. 1994); Concerned Parents to Save Dreher
Park Center v. City of West Palm Beach, 846 F. Supp. 986, 990
(S.D. Fla. 1994). The only case cited by the City in support of
its argument that IHS lacks standing under the ADA is Kessler
Inst. for Rehabilitation, Inc. v. Mayor and Council of Essex
Fells, 876 F. Supp. 641 (D.N.J. 1995). See Br. at 48. In
Kessler, the court failed to address the provisions of the
statute discussed above, the clear language of the regulations,
the legislative history, or the technical assistance materials
produced by the Department of Justice. Based, as it apparently
                                   23
01-06728
was, on a cursory and incomplete reading of the statute, that
decision is contrary to the law and should not be relied upon by
this Court. To do so would be to frustrate congressional intent
and to overrule statutorily required regulations in contravention
of established principles of judicial review.
        Oak Ridge and Tugg, on the other hand, are well-reasoned and
supported by the plain language, legislative history and agency
interpretation of the ADA.* In Oak Ridge, the court found that
Oak Ridge Care Center, an elder care facility that challenged
defendant's denial of its application for a conditional use
permit under the ADA and the Fair Housing Act, had Article III
standing because, as a result of defendant's discriminatory
action, it lost a sale of property and had to continue to make
mortgage payments. Oak Ridge, 896 F. Supp. at 871. The court
refused to follow Kessler because "[t]the Kessler court failed to
consider the regulations implementing the ADA." Id. at 872. The
court found that ADA standing for an institution was contemplated
by the Appendix to 28 C.F.R. S 35.130 (g), and the plain language
of the regulations supported its finding. Id.
        In Tugg, deaf individuals and their family members sued for
violations of Title II of the ADA. The defendants in that case,
like the City here, argued that the non-disabled individuals did
not have standing to sue in their own right because they were not
____________________

        * In Concerned Parents to Save Dreher Park Center v. City
of West Palm Beach, 846 F. Supp. 986, 990 (S.D. Fla. 1994), the
court also recognized standing if one represents those subjected to
discrimination based on a disability.
                                   24
01-06729
individuals with disabilities. The court, relying on 28 C.F.R.
S 35.130(g) and the preamble thereto, found that Title II gave
"broad protection to anyone associated with an individual with a
disability." Id. at 1208. Consequently, the court found that
the non-disabled individuals had standing to assert their own
rights under the ADA.* See also Comer v. Cisneros, 37 F.3d 775,
789 (2d Cir. 1994) (under Fair Housing Act court need only
examine constitutional minima of injury); Growth Horizons, Inc.
v. Delaware County, 983 F.2d 1277, 1281-82 (3d Cir. 1993)
(corporation had standing to sue under Fair Housing Act for
City's discriminatory refusal to assume leases); Epicenter of
Steubenville, Inc. v. City of Steubenville, 924 F. Supp. 845,
849-50 (S.D. Ohio 1996) (corporation had standing to challenge
under the Fair Housing Act City's zoning ordinance that
prohibited it from obtaining permit to operate an adult care
facility); Finley v. Giacobbe, 827 F. Supp. 215, 219-20 (S.D.N.Y.
1993).
        B. IHS Has Standing to Sue Under Section 504 of
           the Rehabilitation Act
        The City concedes, as it must, that the same analysis that
applies to the ADA applies to the Rehabilitation Act because they
are substantially similar. See Br. at 43. Section 504 of the
Rehabilitation Act, 29 U.S.C. S 794, broadly prohibits
_____________________

        * Because Title II extended the protections of section 504
of the Rehabilitation Act to non-federally funded entities, 42
U.S.C. S 12134, the cases discussed infra regarding section 504
also support the application of Title II to association claims.
See also H.R. Rep. No., 485 (II), 101st Cong., 2d Sess. 84,
reprinted in 1990 U.S.C.C.A.N. 303, 367.
                                   25
01-06730
discrimination on the basis of disability and provides that
"[t]he remedies, procedures, and rights set forth in title VI of
the Civil Rights Act of 1964 . . . shall be available to any
person aggrieved by any act or failure to act by any recipient of
Federal assistance or Federal provider of such assistance under
section 794 of this title." 29 U.S.C. S 794a (emphasis added).
As the district court correctly found, the "person aggrieved"
need not be an individual with a disability. JA 543 (931 F.
Supp. at 237). Thus, IHS has standing under the Rehabilitation
Act as well.
        Courts have consistently ruled that individuals and entities
who are injured by discrimination on the basis of disability have
standing under section 504 even though they are not, themselves,
individuals with disabilities. In Sullivan v. City of
Pittsburgh, 811 F.2d 171, 182 n.12 (3d Cir.), cert. denied, 484
U.S. 849 (1987), for example, a non-profit corporation that
operated treatment centers for alcoholics sued under section 504
of the Rehabilitation Act for discrimination in zoning and
funding decisions by the defendant city. The defendant argued
that, because the corporation was not a qualified individual with
a disability, the city's discrimination against the corporation
was not actionable. The court disagreed, finding that
        the clear intent of Congress in enacting
        S 504 was to make unlawful direct or indirect
        discrimination against any handicapped
        individual who would benefit from a
        federally-funded program or activity. . . .
        Therefore, if the City denied . . . funds to
        [the plaintiff corporation] because the funds
        would be used for handicapped individuals, it
                                   26
01-06731
        violated S 504.
Id. (citations omitted) (emphasis added).
        In Greater Los Angeles Council on Deafness, Inc. v. Zolin,
812 F.2d 1103 (9th Cir. 1987), an organization paid for a sign
language interpreter for a deaf juror and was denied
reimbursement by the county. The organization sued under section
504. The defendants challenged the organization's standing,
claiming the organization was not a member of the class
benefitted by the statute. The court disagreed, finding that
organizations of or for people with disabilities have standing to
sue under section 504 for injunctive relief and to recover
expenses made necessary by a defendant's discrimination. Id. at
1115. See also Williams v. United States, 704 F.2d 1162, 1163
(9th Cir. 1983) (organization whose purposes include improving
the quality of life of individuals with disabilities has standing
to sue to require Federal agencies to perform their obligations
under section 504); United Handicapped Fed'n v. Andre, 558 F.2d
413 (8th Cir. 1977) (associations of individuals with
disabilities have standing).
                                POINT II
                THE DISTRICT COURT CORRECTLY DETERMINED THAT
                THE ADA AND THE REHABILITATION ACT APPLY TO
                ZONING ENFORCEMENT ACTIVITIES UNDERTAKEN BY
                PUBLIC ENTITIES
        The City's argument that Title II of the ADA and the
Rehabilitation Act do not apply to zoning activities is without
merit. Br. at 34-44. If the City were correct, then local
governments would be prohibited from discriminating in some of
                                   27
01-06732
their activities but not in others. That result makes no sense.
The City fails to articulate any reason for distinguishing zoning
from other activities of public entities, and the statute itself
does not provide a basis for such a distinction. The City's
interpretation would also result in imposing limits on the ADA
not contemplated by Congress and would require a reading of the
language of the ADA inconsistent with substantially similar
language of other civil rights statutes.
        A.      The Text and Legislative History of Title II of
                the ADA and Section 504 of the Rehabilitation Act
                Demonstrate Congressional Intent to Cover Local
                Zoning Activities
                1.      Title II of the ADA
        Congress enacted the ADA to eliminate pervasive societal
discrimination against individuals with disabilities, having
determined that "historically, society has tended to isolate and
segregate individuals with disabilities." 42 U.S.C. S
12101(a)(2). Congress found that such pervasive discrimination
has continued in access to health services and public services,
42 U.S.C. S 12101(a)(3), and thus sought to "provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities." 42 U.S.C.
S 12101 (b) (1).
        Congress therefore enacted the ADA to address deficiencies
in the Rehabilitation Act, which left it "'inadequate' to combat
'the pervasive problems of discrimination that people with
disabilities [were] facing,'" Helen L. v. DiDario, 46 F.3d 325,
331 (3d Cir.) (citing S. Rep. No. 116, 101st Cong., 1st Sess. 18
                                   28
01-06733
(1989); H. R. Rep. No. 485 (II), 101st Cong., 2d Sess. 47
(1990)), cert. denied, 116 S. Ct. 64 (1995), and expressly
extended Rehabilitation Act prohibitions to state and local
governments. Helen L, 46 F.3d at 332 (citing H.R. Rep. No. 485
(III), 101st Cong., 2d Sess. 50). In order to reach "pervasive"
societal discrimination, the ADA prohibits discrimination against
persons with disabilities in employment (Title I), public
services (Title II), public accommodations and services operated
by private entities (Title III), and prohibits public entities
from interfering with individuals in the exercise of their rights
under the ADA (Title IV). See 42 U.S.C. SS 12101-12203(b).*
        Title II's protection against discrimination on the basis of
disability in the provision of public services is broad and
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.
_____________________

        * "Disability" is defined as "a physical or mental
impairment that substantially limits one or more of the major life
activities of [an] individual." 42 U.S.C. S 12102 (2) (A). Persons
recovering from or receiving treatment for addiction to alcohol or
drugs are disabled individuals both for purposes of the ADA and
Section 504 of the Rehabilitation Act. 42 U.S.C. S 12210(b) and
(c); 28 C.F.R. SS 35.104, 35.131 (ADA); 29 U.S.C. S 706(8)(B) and
(c) (Rehabilitation Act); Collings v. Longview Fibre Co., 63 F.3d
828, 831 (9th Cir. 1995) (ADA), cert. denied, 116 S. Ct. 711
(1996); see also Sullivan v. City of Pittsburgh, 811 F.2d 171, 182
(3d Cir. 1987), cert. denied, 484 U.S. 849 (1989) (Rehabilitation
Act); Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp.
450, 459 (D.N.J. 1992) (identical definition of "disability" under
the Fair Housing Act includes alcoholism and drug addiction).
                                   29
01-06734
Id. at S 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. As the district court found, zoning
activities and decisions are plainly among the "services,
programs, or activities" conducted by public entities.* JA 530
(931 F. Supp. at 232). Moreover, the last phrase of Title II's
prohibition is even more expansive, stating simply that no
individual with a disability may be "subjected to discrimination"
by a public entity. Id. This language prohibits a public entity
from discriminating on the basis of disability in any manner,
whether through zoning or any other official activity. To allow
discrimination on the basis of disability in any area of
government operations denies persons with disabilities equal
opportunity to benefit from those government functions, in direct
contravention of the ADA's stated goals.** 42 U.S.C. S 12132.
        Title II's legislative history demonstrates that Congress
intended Title II to cover every action taken in every forum in
which a public entity may function. The House Report states:
"The Committee has chosen not to list all the types of actions
_____________________

        * A "public entity" includes "any State or local
government," 42 U.S.C. S 12131(1) (A), and "any department, agency,
special purpose district, or other instrumentality of a State or
States or local government." 42 U.S.C. S 12131 (1) (B); 28 C.F.R. S
35.104. For purposes of the ADA, the City of White Plains, the
Zoning Board of Appeals, and the Planning Board are "public
entities."
        ** As a remedial statute, the ADA "must be broadly construed
to effectuate its purposes." Kinney v. Yerusalim, 812 F. Supp.
547, 551 (E.D. Pa. 1993), aff'd, 9 F.3d 1067 (3d Cir. 1993), cert.
denied, 114 S. Ct. 1545 (1994).
                                   30
01-06735
that are included within the term 'discrimination,' as was done
in titles I and III, because this title simply extends the anti-
discrimination prohibition embodied in section 504 to all actions
of state and local governments." H.R. Rep. No. 485 (II), 101st
Cong., 2d Sess. 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303,
367 (emphasis added). The House Report later emphasizes the
broad coverage of Title II, stating: "Title II of the bill makes
all activities of State and local governments subject to the
types of prohibitions against discrimination against qualified
individuals with a disability included in section 504
(nondiscrimination)." Id. at 151, reprinted in 1990 U.S.C.C.A.N.
303, 434 (emphasis added). In fact, Representative Coelho, the
ADA's principal sponsor in the House of Representatives,
explained that the ADA was meant to prohibit discrimination in
the enactment and enforcement of local ordinances. 134 Cong.
Rec. 9606, E1310 (April 29, 1988) (Title II "will prohibit
discriminatory activities of State and local governments
resulting from ordinances, laws, regulations, or rules.").*
        2. Section 504 of the Rehabilitation Act
The City also challenges the Rehabilitation Act's
_____________________

        * 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. S 12113 (d) (3). See also H.R. Conf. Rep.
No. 596, 101st Cong., 2d Sess. 61 (1990), reprinted in 1990
U.S.C.C.A.N. 565, 570. This section would have been unnecessary if
the ADA were not otherwise intended to affect local ordinances.
                                   31
01-06736
application to zoning activities. Br. at 34-35. However, section
504 of the Rehabilitation Act also contains expansive language
prohibiting discrimination on the basis of disability in any
"program or activity" of specified recipients of Federal
financial assistance. 29 U.S.C. S 794. The Civil Rights
Restoration Act made clear that "the term 'program or activity'
and 'program' means all of the operations of such a recipient of
federal funding." 29 U.S.C. S 794 (emphasis added). The phrase
"all of the operations of" demonstrates that section 504 applies
to every action taken by such a recipient receiving Federal
financial assistance. Neither the Rehabilitation Act nor the
Civil Rights Restoration Act, nor their legislative histories,
contain any references indicating congressional desire to exempt
zoning enforcement from their coverage. In fact, congressional
debates during the enactment of the Civil Rights Restoration Act
demonstrate that the broad language was understood to cover
zoning activities.*
        B. The Department of Justice Interprets Title II
           To Apply to Local Zoning Activities
        Consistent with Title II's broad language and its
legislative history, the Department of Justice, in its Title II
____________________

        * During consideration of the Civil Rights Restoration Act,
Senator Hatch stated:
                The zoning function of local government will likely be
                covered by these laws in ways never before achieved. . .
                . [I]t will be difficult, if not impossible, for
                localities and states to escape total coverage under the
                bill, including a locality's zoning function . . . .
134 Cong. Rec. 4259, S2422 (March 17, 1988).
                                   32
01-06737
implementing regulation and other Title II analyses, has
interpreted Title II to reach all actions by public entities,
including zoning enforcement actions. The Department of
Justice's regulation implementing Title II repeats the statute's
general nondiscrimination provision that "no qualified individual
with a disability shall . . . be excluded from participation in
or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination
by any public entity." 28 C.F.R. S 35.130(a). The Department of
Justice's preamble to the regulation explains that "Title II
applies to anything a public entity does . . . . All
governmental activities of public entities are covered. . . ."
28 C.F.R. pt. 35, App. A at 441-42.
        The regulation enumerates several categories of specific
activities that constitute discrimination by public entities. 28
C.F.R. S 35.130. One of these specific provisions requires
public entities to make reasonable modifications to their
policies, practices, and procedures, where such modifications are
necessary to avoid discrimination on the basis of disability. 28
C.F.R. S 35.130(b)(7).* Consistent with the Act, this provision
uses broad language to cover the widest possible range of actions
____________________

        * As discussed in Point I, the Department of Justice's
regulations are entitled to controlling weight unless they are
"arbitrary, capricious, or manifestly contrary to the statute."
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844 (1984). In addition, the Department of Justice's
preamble and Title II Technical Assistance Manual interpreting its
regulations are entitled to controlling weight unless they are
"plainly erroneous or inconsistent with the regulation[s]." Thomas
Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994).
                                   33
01-06738
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.
        Indeed, the Title II TA Manual specifically uses zoning in
an illustration of a public entity's obligation to modify its
policies, practices, and procedures. It explains:
        A municipal zoning ordinance requires a set-back of 12
        feet from the curb in the central business district.
        In order to install a ramp to the front entrance of a
        pharmacy, the owner must encroach on the set-back by
        three feet. Granting a variance in the zoning
        requirement may be a reasonable modification of town
        policy.
TA Manual S II-3.6100 at 14. The TA Manual also makes clear that
Title II reaches local laws and ordinances generally. The Title
II regulation requires public entities to conduct a self-
evaluation to assess, inter alia, all of their policies,
practices, and procedures. 28 C.F.R. S 35.105 (a). The TA
Manual's explanation of the self-evaluation explicitly recognizes
that "a public entity's policies and practices are reflected in
its laws, ordinances, regulations, administrative manuals. . ."
TA Manual S II-8.1000 at 44. Discriminatory "policies,
practices, and procedures must be modified," regardless of their
form. Id.
        The City attempts to narrow the broad reach of "services,
programs and activities" by arguing that the district court erred
in relying on legislative intent and the Department of Justice's
                                   34
01-06739
TA Manual. It argues that the absence of a specific reference to
"zoning" in section 35.102 (a) demonstrates that Title II of the
ADA does not prohibit discrimination in zoning decisions. Br. at
38-39. Not only is this argument flawed for the reasons stated
supra, but the logical result of such an argument is that the
Department of Justice's failure to create an exhaustive list
gives the City license to discriminate in any service, program or
activity of a public entity that is not specifically enumerated
in the regulation. The City's position that the plain meaning of
"services, programs and activities" does not include zoning is
simply unsupported by the text and the legislative history of
Title II and would also deny the Department of Justice's
regulations and TA Manual the deference they are due.
        C. Courts Have Construed the Rehabilitation Act to
           Apply to Discriminatory Zoning Activities and the
           Same Analysis Should Apply to Title II
        Courts have consistently found that the Rehabilitation Act
applies to zoning. Moreover, Congress intended to incorporate in
the ADA all of the protections of section 504 of the
Rehabilitation Act and to extend those protections to cover all
activities of public entities. It is thus persuasive on the
question of whether zoning activities are covered under Title II
of the ADA that courts have construed the Rehabilitation Act as
covering zoning activities. See H.R. Rep. No. 485 (II), 101st
Cong., 2d Sess. 151 (1990), reprinted in 2990 U.S.C.C.A.N. 303,
434.
        In Sullivan v. City of Pittsburgh, 811 F.2d 171, 181-83 (3d
                                   35
01-06740
Cir. 1987), cert. denied, 484 U.S. 849 (1989), for example, the
Third Circuit, in a case with facts similar to those presented
here, found that the Rehabilitation Act prohibited discriminatory
zoning activities. In Sullivan, facilities treating alcoholics
sued the City of Pittsburgh under the Rehabilitation Act based on
the City's denial of applications for conditional use or
occupancy permits under the City's zoning code. The City based
its decision on the grounds that the treatment centers would
diminish surrounding property values and hinder orderly community
development. It denied the application despite the Planning
Department's recommendation of approval. The district court
granted plaintiff's motion for a preliminary injunction against
the City, ordering the City to provide the permits and funding at
issue. The Third Circuit upheld the injunction. Sullivan, 811
F.2d at 181-82.*
        Likewise, in Oak Ridge, the court refused to dismiss an ADA
and Fair Housing Act action challenging Racine County's denial of
a conditional use permit for a drug and alcohol rehabilitation
facility. See Oak Ridge, 896 F. Supp. at 872-73. The court
cited Cleburne Living Center, Inc. v. City of Cleburne, 726 F.2d
191, 194-95 (5th Cir. 1984), aff'd in part, 473 U.S. 432 (1985)
(equal protection clause violated where City required special use
permit for group home for persons with mental disabilities), a
Rehabilitation Act case in which the court dismissed a similar
____________________

        * The district court opinion in Sullivan has a more
extended discussion of the applicability of Section 504. Sullivan
v. City of Pittsburgh, 620 F. Supp. 935, 946 (W.D. Pa. 1985).
                                   36
01-06741
claim on the ground that the public entity did not receive
federal financial assistance. See Oak Ridge, 896 F. Supp. at
873. The court in Oak Ridge found that implicit in the Cleburne
court's reasoning was that zoning was a public activity covered
by the Rehabilitation Act if the facility at issue had received
federal financial assistance. Oak Ridge, 896 F. Supp. at 873
n.3.
        In support of its argument that the ADA does not prohibit
discriminatory zoning activities, the City cites cases in which
plaintiffs either failed to provide sufficient support for the
court to rule in their favor or in which the opinions were not
well reasoned. In any event, none of them is binding on this
Court. Therefore, this Court should decline to follow them.
        For example, in Oxford House, Inc. v. City of Albany, 155
F.R.D. 409, 410-11 (N.D.N.Y. 1994), the plaintiffs "completely
failed to cite any authority" to support their position. In
considering the plaintiffs' motion for reconsideration, the court
acknowledged that its decision that Title II did not apply to
zoning was based simply on the lack of legal argument presented
by the plaintiffs. Id. at 410. The court further acknowledged
that authorities submitted by the plaintiffs in support of their
reconsideration motion might, if timely presented, have led to a
different conclusion. Id. at 411. Likewise, in Moyer v. Lower
Oxford Township, 1993 WL 5489 * 2 (E.D. Pa. Jan. 6, 1993), the
court dismissed plaintiff's ADA claim on the ground that
plaintiff cited no authority indicating that the ADA should be
                                   37
01-06742
applied in the zoning context.
        Other cases do not provide sufficient analysis to merit
application here. In United States v. City of Charlotte, 904 F.
Supp. 482 (W.D.N.C. 1995), the United States challenged the
City's denial of a construction permit for a group home for AIDS
patients under the Fair Housing Act. Private individuals
intervened and raised a claim under the ADA. The district court
granted the City's motion to dismiss the ADA claim because it
found that "a zoning decision does not constitute a service,
program, or activity of a municipality." Id. at 484. Finding
that the inclusion of zoning decisions in the definitions of the
words "service," "program," and "activity" was not within the
plain meaning of these terms, the court refused to examine the
legislative history or the Department's interpretation of the
ADA. Id. The City of Charlotte court cited Oxford House and
Moyer in support of its ruling, despite the fact that these cases
do not hold that a municipality may discriminate in its zoning
activities under Title II.
        The third case cited by the City of Charlotte court, Burnham
v. Rohnert Park, 1992 WL 672965 (N.D. Ca. May 18, 1992), is
inapposite. In Burnham, plaintiff challenged a municipality's
refusal to modify a zoning ordinance to permit her to park a
mobile home in one of two driveways. Plaintiff alleged that she
suffered from an allergic condition to the environment and that
she could only park her specially outfitted mobile home in one of
the two driveways at issue to reduce the external toxins to which
                                   38
01-06743
she might be exposed. The court found no evidence of
discrimination because plaintiff produced no evidence that the
two driveways at issue were uniquely toxin free, whereas the City
produced evidence demonstrating several other alternative toxin-
free locations for plaintiff's mobile home. Id. at * 4. As a
result, plaintiff could not show that she suffered "harm" as a
result of the City's refusal to vary its zoning ordinance. The
court did not rule, however, that Title II of the ADA did not
apply to zoning, and in fact assumed that Title II did cover the
alleged discrimination. Id.
        The only opinion cited by the court in City of Charlotte
that supports its ruling is Kessler Institute for Rehabilitation
v. Mayor and Council of Essex Falls, 876 F. Supp. 641 (D.N.J.
1995). The Kessler Institute for Rehabilitation ("Kessler"),
which planned to build a transitional residence for the disabled
on property it purchased, sued the Borough in which that property
was located when it denied Kessler's application for an amendment
to the zoning ordinance to permit its planned construction.
Instead of granting the application the Borough enacted an
ordinance authorizing the condemnation of the property for
recreational use. The court found that the complaint did not
support a finding that plaintiffs were denied "municipal
services" under the ADA, stating without any analysis that a
zoning amendment is not a "public service, program, or activity."
Id. at 655.
        As the district court found, JA 529 (931 F. Supp. at 232),
                                   39
01-06744
the conclusions reached by City of Charlotte and Kessler are not
only unsupported, but are plainly contrary to the broad statutory
language, legislative history, and implementing regulation of
Title II, none of which were considered by those courts.*
        D. Construing Title II to Cover Zoning Is
           Consistent with Other Civil Rights Laws
        As the district court correctly noted, JA 532-33 (931 F.
Supp. at 233 n.5), in addition to the Rehabilitation Act, courts
have found zoning to be covered under related civil rights laws,
most notably the Fair Housing Act, 42 U.S.C. SS 3601 et seq.
Like Title II of the ADA, 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. Stressing Congress' use of expansive language, courts
have interpreted the Fair Housing Act's general statutory
language to cover local zoning decisions, even though zoning was
not specifically mentioned in that Act. See, e.g., LeBlanc-
Sternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir. 1995), cert.
denied, 116 S. Ct. 2546 (1996); Casa Marie, Inc. v. Superior
Court, 988 F.2d 252, 257 n. 6 (1st Cir. 1993) (citing H.R. Rep.
No. 711, 100th Cong., 2d Sess. 22 (1988), reprinted in 1988
U.S.C.C.A.N. 2173, 2183); South-Suburban Housing Ctr. v. Greater
South Suburban Bd. of Realtors, 935 F.2d 868, 882 (7th Cir. 1991)
(en banc), cert. denied, 502 U.S. 1074 (1992); Southend
____________________

        * Despite its ruling as to Title II, the City of Charlotte
court acknowledged that Section 504 of the Rehabilitation Act
covers zoning. City of Charlotte, 904 F. Supp. at 487.
                                   40
01-06745
Neighborhood Improvement Ass'n v. County of St. Clair, 743 F.2d
1207, 1209-10 (7th Cir. 1984); United States v. City of Black
Jack, 508 F.2d 1179 (8th Cir. 1974), cert. denied, 422 U.S. 1042
(1975).
        When the Fair Housing Act was amended in 1988, among other
things, to prohibit discrimination on the basis of disability,
Congress confirmed this judicial interpretation of the statute
that discriminatory zoning decisions were prohibited by the
statute. H.R. Rep. No. 711, 100th Cong., 2d Sess. 24 (1988),
reprinted in 1988 U.S.C.C.A.N. 2173, 2185 ("Congress intends that
the prohibition against discrimination against those with
handicaps apply to zoning decisions and practices"). The 1988
amendments define the term "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 with a disability equal opportunity to use and enjoy
a dwelling . . . ." 42 U.S.C. S 3604(f)(3)(B). Courts have
confirmed that that language authorizes challenges to zoning
actions. See, e.g., City of Edmonds v. Washington State Building
Code Council, 18 F.3d 802 (9th Cir. 1994), aff'd, 115 S. Ct. 1776
(1995); Casa Marie, 988 F.2d at 270 n.22; Potomac Group Home
Corp. v. Montgomery County, Md., 823 F. Supp. 1285 (D. Md. 1993).
        As the Title II regulations make clear, discrimination under
Title II also includes a failure to "make reasonable
modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis
                                   41
01-06746
of disability . . ." 28 C.F.R. S 35.130(b)(7). As the district
court ruled, JA 532-33 (931 F. Supp. at 233 n.5), this language
easily reaches zoning activities. Of course, in this case, there
is abundant evidence that the City acted with discriminatory
intent. Therefore, as the district court recognized, it was not
necessary to reach the issue of reasonable accommodation. JA
(931 F. Supp. at 239).
                               POINT III
        THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
        GRANTING THE PRELIMINARY INJUNCTION
        A. The Standard of Review
        The district court's award of injunctive relief is reviewed
for an abuse of discretion. Shapiro v. Cadman Towers, Inc., 51
F.3d 328, 332 (2d Cir. 1995). "Such an abuse of discretion
typically consists of either applying incorrect legal standards
or relying on clearly erroneous findings of fact." Id. The
"scope of a district court's powers to remedy past wrongs is
broad, for breadth and flexibility are inherent in equitable
remedies." Swann v. Charlotte-Mecklenburg Bd. of Education, 401
U.S. 1, 15 (1971). Moreover, the party seeking to overturn a
district court's exercise of such remedial discretion "has the
burden of showing that the court abused that discretion and the
burden necessarily is a heavy one." Securities and Exch. Comm'n
v. Manor Nursing Ctrs., Inc., 458 F.2d 1082, 1100 (2d Cir. 1972).
The City argues that the district court applied an incorrect
        legal standard by failing to require IHS to demonstrate
irreparable harm and likelihood of success on the merits by clear
                                   42
01-06747
and convincing evidence because the preliminary injunction sought
was mandatory and not prohibitory in nature. Br. at 10, 31, 33.
It further contends that this heightened standard of review is
appropriate because the preliminary injunction "may adversely
affect the public interest." Br. at 12 (emphasis added)
        The district court correctly determined that the preliminary
injunction IHS sought was prohibitory, not mandatory. JA 551 (931
F. Supp. at 240-41). Generally, a prohibitory injunction
preserves the status quo. Johnson v. Kay, 860 F.2d 529, 541 (2d
Cir. 1988). This Court, however, has found that a court cannot
determine whether a requested preliminary injunction is
prohibitory or mandatory simply by determining whether the status
quo is maintained or upset and, therefore, the analysis does not
end with the language of the injunction sought. Abdul Wali v.
Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985); see also Johnson,
860 F.2d at 541 (preliminary injunction requiring union to expend
funds to permit dissident views at election not mandatory because
it ordered union to do what it should have done initially).
Furthermore, this higher standard of review is not appropriate
where the preliminary injunction could be undone if the non-
moving party prevails at trial. Tom Dougherty Assoc., Inc. v.
Saban Entertainment, 60 F.3d 27, 35 (2d Cir. 1995).
        The district court enjoined the City from interfering with
IHS' relocation to downtown White Plains; it did not require the
City to act affirmatively. Moreover, there is no evidence in the
record to suggest that once IHS relocates to downtown White
                                   43
01-06748
Plains, the City has no method of removing IHS from the BR-4
zoning district if it prevails at trial. Indeed, the City has
not even suggested that the preliminary injunctive relief would
be unalterable. Accordingly, the higher standard of proof
required for a mandatory inunction does not apply here.
        B. The District Court Had Sufficient Evidence of
           Discriminatory Animus to Support Its Finding of
           Likelihood of Success on the Merits
        The district court correctly found that IHS met its burden
of establishing a likelihood of success on the merits based on
the following evidence of discriminatory animus: 1) both the
City's Building Commissioner and Corporation Counsel determined
that IHS' proposed use of the 33 South Broadway space was
permissible under the Zoning Ordinance; 2) the ZBA was operating
under intense political pressure from residents and community
members opposed to IHS relocation to 33 South Broadway based on
animus towards drug and alcohol-dependent individuals; 3) the ZBA
ignored the use of the term "clinic" in the Zoning Ordinance in
arriving at its decision that IHS served "general medical,
surgical, psychiatric, physical therapy and rehabilitation
purposes"; 4) the ZBA ignored the fact that IHS is not sponsored
by or affiliated with a hospital or sanitarium as provided by the
Zoning Ordinance's definition of a "clinic"; 5) the ZBA did not
distinguish IHS from other counseling services permitted to
operate in the zoning district; and, 6) IHS had been operating
for years in a zoning district in which hospitals and sanitaria
were not permitted. JA 556-57 (931 F. Supp. at 241-42). The
                                   44
01-06749
district court further found that the City did not present any
evidence to respond to the Commissioner's interpretation of the
Zoning Ordinance, which permitted IHS' use of the 33 South
Broadway site. JA 557-58 n.7 (Id. at 242 n. 7).
        Neither the conclusory affidavits of ZBA members averring
that they did not discriminate against IHS, nor statements at the
July 1995 public hearing in which board members stated, without
explanation, their conclusion that IHS was a "clinic," provide
sufficient evidence to suggest that plaintiffs were not likely to
prevail on the merits. Moreover, the City did not provide any
evidence that it would have considered medical offices as
"clinics" in the BR-4 zoning district or that it would have found
IHS to be in violation of the Zoning Ordinance at its 7 Holland
Avenue site because it was a "clinic." The district court
decision is thus fully supported by the facts in the record.
Despite the City's assertions to the contrary, see Br. at 20, the
district court did not fail to consider the City's evidence. It
merely found that evidence unpersuasive.
        C. The District Court Did Not Abuse Its Discretion in
           Finding That IHS Had Demonstrated Irreparable Harm
        The City argues that because IHS was located near a Metro
North train station and a bus line that connected to other bus
lines, was less than two miles from the 33 South Broadway site,
and was still operating, the district court erred in finding that
IHS demonstrated irreparable harm. Br. at 14-16. In essence,
the City argues that plaintiffs have only demonstrated
inconvenience, not irreparable harm.
                                   45
01-06750
        The district court, however, correctly ruled that plaintiffs
provided sufficient evidence of the risk of relapse due to both
the inaccessibility of IHS' treatment program and IHS' inability
to offer additional services that could improve the efficacy of
the treatment program. JA 554 (931 F. Supp. at 240). Moreover,
inconvenience may yield irreparable harm in some instances. See
Shapiro, 51 F.3d at 333 (plaintiff who used a wheelchair
demonstrated irreparable injury in denial of parking space in
apartment building because of difficulty getting on-the-street
parking and parking garages inconveniently far from building).
The district court's decision was amply supported by evidence
that IHS clients had been forced to drop out of its treatment
program due to its inconvenient location and its inability to
offer baby-sitting services. JA 552 (931 F. Supp. at 240). In
addition, as the district court observed, "[c]ourts have held
that the deprivation of treatment needed to recover from
addiction or prevent relapse constitutes irreparable injury." JA
553 (931 F. Supp. at 240).
                                   46
01-06751
                                CONCLUSION
        For the foregoing reasons, the district court's Memorandum
Decision and Order (a) ruling that IHS has standing to sue under
Title II of the ADA and section 504 of the Rehabilitation Act,
(b) ruling that Title II of the ADA and section 504 of the
Rehabilitation Act apply to zoning enforcement activities
undertaken by public entities, and (c) granting a preliminary
injunction should be affirmed.
Dated:          New York, New York
                November 8, 1996
                                        Respectfully submitted,
                                        MARY JO WHITE,
                                        United States Attorney for the
                                        Southern District of New York,
                                        Attorney for the United States
                                        of America.
MAYA WILEY,
JAMES L. COTT,
   Assistant United States Attorneys,
           Of Counsel.
                                   47
01-06752