FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAREK MOLSKI, an individual, 

Plaintiff,

and

DISABILITY RIGHTS ENFORCEMENT,

EDUCATION, SERVICES: HELPING YOU No. 06-56385

HELP OTHERS, a California public D.C. No. benefit corporation,  CV-03-09393-CBM Plaintiff-Appellant,

v.

FOLEY ESTATES VINEYARD AND

WINERY, LLC, a California limited

liability company,

Defendant-Appellee. 

JAREK MOLSKI, an individual, 

Plaintiff,

and

DISABILITY RIGHTS ENFORCEMENT,

EDUCATION, SERVICES: HELPING YOU No. 06-56418

HELP OTHERS, a California public D.C. No. benefit corporation,  CV-03-09393-CBM Plaintiff-Appellee,

OPINION

v.

FOLEY ESTATES VINEYARD AND

WINERY, LLC, a California limited

liability company,

Defendant-Appellant. 

8325
Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted

April 9, 2008—Pasadena, Caliornia

Filed July 9, 2008

Before: Harry Pregerson, Dorothy W. Nelson, and

Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge D.W. Nelson;

Partial Concurrence and Partial Dissent by Judge Fernandez

8326 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
COUNSEL

Julia M. Adams and Thomas E. Frankovich, Law Offices of

Thomas E. Frankovich, San Francisco, California, for the

plaintiff-appellant. 

Barry Clifford Snyder, Snyder Law, Santa Barbara, California, for the defendant-appellee. 

OPINION

D.W. NELSON, Senior Circuit Judge: 

This case involves a paraplegic who encountered discriminatory barriers to access when he visited a winery with his

grandmother. Unwilling to remove barriers to the historic

wine-tasting room, Foley Estates Vineyard and Winery

(“Foley”) began providing services on a gazebo with a “big

bell” where individuals barred from the wine-tasting room

could ring for service. Jarek Molski and Disability Rights

Enforcement, Education, Services (“DREES”) sued Foley for

injunctive relief and damages to redress physical barriers to

wheelchair accessibility. The district court ordered barrier

removal within the building, but determined that it would not

be readily achievable to make an accessible ramp to the

8330 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
entrance. We affirm the injunction requiring barrier removal

within the building and we remand for the district court to

apply 28 C.F.R. § 36.405 and the Americans with Disabilities

Act Accessibility Guidelines for Buildings and Facilities, 28

C.F.R. § 36 App. A 4.1.7 (“ADAAG § 4.1.7” or “§ 4.1.7”)

when evaluating whether an accessible ramp would be readily

achievable. 

FACTUAL AND PROCEDURAL BACKGROUND

On January 18, 2003, Jarek Molski1 visited the Foley

Estates Winery with his grandmother. While attending a

wine-tasting, Molski encountered multiple physical barriers to

entry with his wheelchair. An accessibility expert, Rick

Sarantschin, conducted a sub rosa investigation of the property on October 12, 2003. Sarantschin confirmed the existence

of barriers to entry including a ramp with a slope that varies

between 6% and 20%; a raised threshold measuring 4.5′′; a

round door knob; a rear door width of only 30′′; another door

width of 31.25′′; and a wine-tasting counter height of 42′′.

Jarek Molski and DREES filed suit against Foley on December 22, 2003. 

Prior to the commencement of litigation, Foley undertook

$23,994 in renovations to provide all services on a

wheelchair-accessible gazebo. Renovations included an accessible ramp from the parking lot and a “big bell” to summon

for service. Nearly two years into the court proceedings, the

Santa Barbara County Historic Landmarks Advisory Commission declared Foley Estates a “Place of Historical Merit” by

way of resolution No. 2005-01. 

At trial, the court heard expert testimony regarding proposed methods of barrier removal and associated costs. The

1

Jarek Molski is paraplegic and requires a wheelchair for mobility. Molski is a member of DREES, a nonprofit membership organization that

advocates on behalf of individuals with disabilities. 

DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8331
court also heard testimony from Foley’s architectural historian, who opined that an access ramp would have a severe

impact on the historical nature of the cottage. The judge determined that it would cost $34,074 to construct an access ramp

to the rear of the building, and it would cost $5,130 to remove

all physical access barriers inside the building. The judge

found that removal of interior barriers would be readily

achievable, but removal of exterior barriers would not be

readily achievable because it would threaten the architectural

significance of the property. In reaching this finding, the

judge held that 28 C.F.R. § 36.405 and ADAAG § 4.1.7 do

not apply to barrier removal for existing facilities. Thus, the

judge allocated the burden of production to the plaintiff to

show that the proposed alteration would not threaten the historic significance of the building. The trial judge issued a permanent injunction requiring barrier removal inside the

cottage. 

DREES timely appeals the district court’s findings regarding the applicability of 28 C.F.R. § 36.405 and ADAAG

§ 4.1.7, and the ready achievability of constructing an accessible ramp. Foley cross-appeals and challenges the permanent

injunction requiring removal of interior physical barriers.

JURISDICTION AND STANDARD OF REVIEW

DREES filed the underlying action for violations of the

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-

12300, in federal court pursuant to 28 U.S.C. § 1331. We

exercise jurisdiction over the appeal pursuant to 28 U.S.C.

§ 1291. 

“The interpretation of [the ADA] is a question of law subject to de novo review.” Barden v. City of Sacramento, 292

F.3d 1073, 1075 (9th Cir. 2002). We also review the district

court’s allocation of the burden of proof de novo. Ferrari,

Alvarez, Olsen & Ottoboni v. Home Ins. Co., 940 F.2d 550,

555 (9th Cir. 1991). We review the court’s decision whether

8332 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
to grant equitable relief under the ADA for an abuse of discretion. Bird v. Lewis & Clark Coll., 303 F.3d 1015, 1020 (9th

Cir. 2002). 

DISCUSSION

I. EXTERIOR RAMP 

A. APPLICABLE REGULATIONS

[1] On appeal, we are asked to decide whether 28 C.F.R.

§ 36.405 and ADAAG § 4.1.7 apply to barrier removal in

existing facilities. By their terms, these regulations apply to

“alterations;” however, 28 C.F.R. § 36.304(d)(1) extends their

application to readily achievable barrier removal in existing

facilities. Despite this regulatory directive, the district court

declined to apply § 36.405 and § 4.1.7. We reverse and

remand. 

[2] Our analysis begins with 28 C.F.R. § 36.304, which

regulates barrier removal in existing facilities of public

accommodation. That section requires “[a] public accommodation [to] remove architectural barriers in existing facilities

. . . where such removal is readily achievable.”

2

 28 C.F.R.

§ 36.304(a). The regulation goes on to specify that, “measures

taken to comply with the barrier removal requirements of this

section shall comply with the applicable requirements for

alterations in § 36.402 and §§ 36.404-36.406. . . .” 28 C.F.R.

§ 36.304(d)(1) (emphasis added). If compliance under those

additional regulations would not be readily achievable, “a

public accommodation may take other readily achievable

measures to remove the barrier that do not fully comply with

the specified requirements.” 28 C.F.R. § 36.304(d)(2). 

2The ADA defines readily achievable as “easily accomplishable and

able to be carried out without much difficulty or expense.” 42 U.S.C.

§ 12181(9). Factors to consider include the costs of the project, the

resources of the facility and entity, and the nature of the entity and its

operations. Id. 

DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8333
[3] In this case, we look to the regulations governing historic buildings because the Santa Barbara County Historic

Landmarks Advisory Commission designated the building as

a place of local historic merit. Through its plain language, 28

C.F.R. § 36.304(d)(1) directs vendors to comply with 28

C.F.R. § 36.4053 when making readily achievable accommodations. Section 36.405 requires qualified historic buildings to

“comply to the maximum extent feasible with [ADAAG

§ 4.1.7].” 28 C.F.R. § 36.405(a). Under § 4.1.7, “if the entity

undertaking the alterations believes that compliance with the

requirements . . . would threaten or destroy the historic significance of the building . . . the entity should consult with the

State Historic Preservation Officer.” ADAAG § 4.1.7(2)(b).

“If the State Historic Preservation Officer agrees that compliance with the accessibility requirements for accessible routes

(exterior and interior), ramps, entrances or toilets would

threaten or destroy the historical significance of the building

or facility, the alternative requirements in 4.1.7(3) may be

used.” Id. Under our reading, 28 C.F.R. § 36.304(d)(1)

requires compliance with § 36.405, which incorporates

§ 4.1.7(2)(b) and provides a procedure for businesses to seek

alternative requirements for historic properties. 

[4] Our reading of 28 C.F.R. § 36.304 preserves the

leniency allocated to existing facilities under Title III of the

Americans with Disabilities Act. The ADA only requires barrier removal in existing facilities “where such removal is

readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Section

36.304 integrates the “readily achievable” standard into both

§ 36.304(a) and § 36.304(d)(2). Section 36.304(a) ensures that

only readily achievable barrier removal triggers the incorporation of § 36.405 and § 4.1.7, and § 36.304(d)(2) allows for

partial compliance if full compliance with those regulations

would not be readily achievable. Thus 28 C.F.R. § 36.304

3Section 36.405 applies to “facilities that are eligible for listing in the

National Register of Historic Places . . . or are designated as historic under

State or local law.” 

8334 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
incorporates § 36.405 and § 4.1.7 into the ready achievability

framework, and retains the flexible standard reserved for

existing facilities. 

Additionally, § 4.1.7 establishes a procedure for determining whether barrier removal in existing facilities will be readily achievable. According to the ADA Title III Technical

Assistance Manual (“ADA Manual”) § III-4.4200, “[b]arrier

removal would not be considered ‘readily achievable’ if it

would threaten or destroy the historic significance of a building or facility that is . . . designated as historic under State or

local law.” The standard set in § 4.1.7 is identical to the standard of ready achievability proffered by the ADA Manual.

This similarity between the language suggests that application

of § 4.1.7 is consistent with the standard for existing historic

facilities. Therefore, the procedure set forth in § 4.1.7 may be

used to determine what is readily achievable in existing historic facilities. 

[5] For the foregoing reasons, we find that the district court

erred when it refused to apply § 36.405 and § 4.1.7 to readily

achievable barrier removal in existing facilities. We acknowledge that three courts have considered historical significance

as a factor for determining ready achievability without invoking 28 C.F.R. § 36.405 or ADAAG § 4.1.7.4

 However, we

find the explicit regulatory language to be more persuasive

than the absence of discussion of these regulations in our sister circuits. Therefore, we remand to the district court to apply

§ 36.405 and § 4.1.7 when determining whether an exterior

ramp would be readily achievable. 

4

In, Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1275

(11th Cir. 2006), Colorado Cross Disability Coalition v. Hermanson Family Ltd., 264 F.3d 999, 1007 (10th Cir. 2001), and Speciner v. NationsBank, N.A., 215 F. Supp. 2d 622, 631 (D. Md. 2002), courts have considered historical significance as a factor for determining ready achievability

without invoking 28 C.F.R. § 36.405 or ADAAG § 4.1.7. Notably, none

of these cases rejects the application of 28 C.F.R. § 36.405 and ADAAG

§ 4.1.7; they simply proceed without analyzing those authorities. 

DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8335
B. BURDEN OF PRODUCTION 

At trial, the judge relied on Colorado Cross Disability

Coalition v. Hermanson Family Ltd. to find that DREES bore

the initial burden of production for the question of ready

achievability. See 264 F.3d 999, 1002 (10th Cir. 2001). As

noted above, Colorado Cross failed to address § 36.405 and

§ 4.1.7. This omission tainted the inquiry into who bears the

burden of production for the ready achievability of barrier

removal in historic facilities. We reverse and remand because

we find that § 4.1.7 counsels in favor of placing the burden of

production on the defendant. 

[6] We begin by looking to § 36.405 and § 4.1.7 to allocate

the burden of production. Under § 4.1.7(2)(b), “if the entity

undertaking alterations believes that compliance with the

requirements . . . would threaten or destroy the historic significance of the building . . . the entity should consult with the

State Historic Preservation Officer.” Although this clause uses

permissive language, it calls upon the party who believes that

compliance would threaten the historical significance of the

building to consult the appropriate agency. It does not place

that burden on the party advocating for remedial measures.

Thus, the language of § 4.1.7(2)(b) counsels in favor of placing the burden of production upon the defendant. 

[7] By placing the burden of production on the defendant,

we place the burden on the party with the best access to information regarding the historical significance of the building.

The defendant sought the historical designation in this case.

Thus, the defendant possesses the best understanding of the

circumstances under which that designation might be threatened. The defendant is also in the best position to discuss the

matter with the Santa Barbara County Historic Landmarks

Advisory Commission and to request an opinion on proposed

methods of barrier removal. As a result, the defendant is in a

better position to introduce, as part of its affirmative defense,

detailed evidence and expert testimony concerning whether

8336 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
the historic significance of a structure would be threatened or

destroyed by the proposed barrier removal plan. 

[8] As the dissent reasoned in Colorado Cross, “[i]f plaintiffs must all but present the court with a pre-approved construction contract for a sum certain which includes detailed

plans, impact statements, engineering studies, and permits to

meet their threshold burden, virtually no plaintiff could afford

to bring an architectural barrier removal claim under 42

U.S.C. § 12182(b)(2)(A)(iv).” Colorado Cross, 264 F.3d at

1011 (Lucero, J., dissenting). We need not require an ADA

plaintiff to undertake such heroic measures. Congress relies

on private actors, i.e., disabled individuals, to enforce the

ADA by filing lawsuits. Thus plaintiffs should not be deterred

from filing meritorious claims by an inappropriate allocation

of the burden of production. 

[9] We find that the language of § 4.1.7, the access to information, and the congressional intent behind the ADA support

placing the burden of production on the defendant. Thus, we

reverse and remand for the district court to assign the burden

of production to the defendant on the issue of whether barrier

removal would threaten the historical significance of the

building. 

II. DUTY TO REMOVE INTERIOR BARRIERS

[10] When the district court ordered removal of interior

barriers to the building, the court arguably enhanced the probability that persons with disabilities would attempt to traverse

the non-compliant ramp to access the building. Foley argues

that we should absolve the winery of its responsibility to

remove interior barriers because the only existing ramp is

non-compliant. We reject this argument and affirm the district

court’s injunction requiring barrier removal inside the building. 

[11] Both parties find support for their positions in 28

C.F.R. § 36.304(d)(2). According to this regulation: 

DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8337
If . . . the measures required to remove a barrier

would not be readily achievable, a public accommodation may take other readily achievable measures to

remove the barrier that do not fully comply with the

specified requirements. Such measures include, for

example, providing a ramp with a steeper slope . . . .

No measure shall be taken, however, that poses a

significant risk to the health or safety of individuals

with disabilities or others. 

28 C.F.R. § 36.304(d)(2). DREES relies on the provision for

partial accommodation wherever complete accommodation is

not readily achievable. Foley relies on the caution against partial accommodations where they pose a significant risk to

health and safety. We find that partial accommodation was

appropriate in this case. 

[12] First, § 36.304(d)(2) expressly contemplates that a

venue may provide a ramp with a steeper slope. The provision

of such a ramp does not excuse the facility from otherwise

making readily achievable accommodations to the maximum

extent feasible. Therefore, the fact that there is an existing

ramp with a steeper slope also does not excuse the facility

from making readily achievable accommodations to the maximum extent feasible. Second, the inaccessibility of entry to

one group of individuals does not justify retaining barriers to

access inside the building for all others who may safely gain

entry. Where readily achievable, the interior of the building

must be made accessible for all who may enter. 

[13] Foley argues that removing barriers to the interior of

the building might tempt people with disabilities to traverse

a ramp that is nearly twelve percent steeper at points than

ADA Guidelines recommend. According to Foley, this temptation implicates 28 C.F.R. § 36.304(d)(2) because it “poses

a significant risk to the health or safety of individuals with

disabilities.” When weighing this consideration, we recognize

the diversity in the population of persons with disabilities who

8338 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
might seek to use this ramp. People using canes, walkers,

braces, and powered chairs can often navigate a steeper ramp

than people using manual chairs, so safety risks vary with the

nature of the disability and adaptive equipment. Notably, the

only evidence that Foley cites to support its theory of a health

and safety risk is the pleading of a manual wheelchair user

who complained of trauma to his upper extremities. Although

the ramp allegedly caused injury to Jarek Molski, the ramp

might not cause injury to people using different adaptive

equipment. Because safe access is possible for many persons

who might need or use the ramp, the district court did not

abuse its discretion by ordering readily achievable accommodations to the interior of the wine-tasting room. 

III. ALTERNATIVE GAZEBO

Foley argues that the provision of all relevant services on

the wheelchair-accessible gazebo was legally adequate as a

means of barrier removal. We reject this argument and affirm

the district court’s imposition of readily achievable barrier

removal inside the building. 

As a threshold matter, a facility may only substitute alternatives to barrier removal where “as a result of compliance with

the alterations requirements specified in paragraph (d)(1) of

this section, the measures required to remove a barrier would

not be readily achievable.” 28 C.F.R. § 36.304(d)(2). As

noted above, the district court did not abuse its discretion in

determining that barrier removal inside the building was readily achievable. In light of this holding, no alternative accommodations can supplant the legally required barrier removal.

[14] Although we find the gazebo inadequate for those who

could otherwise access the wine-tasting room, the gazebo provides an important avenue of participation for those who cannot traverse the steps or ramp to the wine-tasting room. We

acknowledge Foley’s efforts to serve this community; however, these efforts do not change Foley’s obligation to make

DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8339
readily available changes to enable the maximum participation possible for those who are able to access the interior of

the wine-tasting room. The gazebo places those who could

otherwise access the wine-tasting room at a disadvantage that

the ADA seeks to remove. Thus, the Gazebo is not an appropriate alternative accommodation. 

CONCLUSION

We REVERSE and REMAND for the district court to

apply § 36.405 and § 4.1.7 and place the burden of production

on the defendant. Additionally, we AFFIRM the district

court’s permanent injunction requiring removal of interior

barriers to wheelchair access. 

REVERSED AND REMANDED IN PART AND

AFFIRMED IN PART. 

FERNANDEZ, Circuit Judge, concurring and dissenting: 

I concur in the majority’s determination that the district

court did not err when it required Foley Estates Vineyard and

Winery, LLC, to make changes to the interior of its building

pursuant to the Americans with Disabilities Act, 42 U.S.C.

§ 12181-12189 (“ADA”). However, I dissent from the majority’s reversal of the district court’s order denying a demand

that Foley make the proposed exterior changes. 

It is important to note that this is not a case where Foley

sought to construct a new facility. See 42 U.S.C.

§ 12183(a)(1). Nor is it a case where Foley sought to alter an

old facility. See id. § 12183(a)(2). It is, instead, a case where

Foley was not seeking to make any change, but Disability

Rights Enforcement Education Services: Helping You Help

Others (hereafter “Disability Rights”) demanded that changes

be made because the failure to do so would be discriminatory.

8340 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
See id. § 12182(b)(2)(A)(iv). However, a mere failure to

remove an architectural barrier is discriminatory only “where

such removal is readily achievable.” Id. In other words, the

mere existence of the barrier does not bespeak wrongdoing;

it only becomes wrongful if removal can be readily achieved.

Barrier removal is readily achievable when it is “easily

accomplishable and able to be carried out without much difficulty or expense.” Id. § 12181(9). That definition is extremely

important. It imposes a much less stringent standard upon

owners of existing properties than that imposed upon owners

who undertake new construction and are required to show

structural impracticability in order to avoid violating the

ADA. See id. § 12183(a)(1). It is also less stringent than the

“maximum extent feasible” standard imposed upon owners

who seek to alter their facilities. See id. § 12183(a)(2). 

In determining ready achievability, “the nature and cost of

the action needed” must be taken into account. Id.

§ 12181(9)(A). Furthermore, because it was never intended

that the nation’s architectural heritage be destroyed under the

banner of readily achievable accessibility, special consideration is given to buildings that “are designated as historic

under State or local law.” 28 C.F.R. § 36.405(a). As to those,

it is important to avoid changes that would “threaten or

destroy the historic significance of the building . . . .” Id.

§ 36.405(b). As the Department of Justice puts it: “Barrier

removal would not be considered ‘readily achievable’ if it

would threaten or destroy the historic significance of a building or facility that is . . . designated as historic under State or

local law.” Dep’t of Justice, ADA Title III Technical Assistance Manual: Covering Pub. Accommodations & Commercial Facilities, § III-4.4200; see also 16 U.S.C. § 470f;

Nondiscrimination on the Basis of Disability by Pub. Accommodations & in Commercial Facilities, 56 Fed. Reg. 35,544,

35,568-69 (July 26, 1991). It is through that lens that we must

review the district court’s decision in this case because the

Foley building in question is a Craftsman house which has

DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8341
been designated as a Place of Historic Merit by the Santa Barbara County Historic Landmark Commission. Nobody doubts

that. 

When that proper method of examining the district court’s

determination is used, it is apparent that the district court did

not clearly err1 when, based on the record before it, the court

determined that the changes suggested by Disability Rights

would, in fact, severely impact or destroy the historic significance of Foley’s building. In reaching that conclusion, the

court relied upon the unrebutted evidence from an expert

architectural historian, Dr. Pamela Post, who testified to that

effect and added that if the suggested changes had been made

previously, they would have made the designation of the

house as a Place of Historic Merit problematic. She, by the

way, is the person who presented the initial report that supported the designation of the property in the first place. 

But, argues Disability Rights, the district court was not permitted to make that finding. Why? Well, Disability Rights

points to the fact that the regulation on removal of barriers

states that when measures are taken to comply with readily

achievable barrier removal requirements, any alterations made

are to comply with 28 C.F.R. § 36.405(a) “for the element

being altered.” 28 C.F.R. § 36.304(d)(1). Of course, that is no

surprise because if a change is made, it becomes an alteration

and ought to then make the property accessible. But, to state

that the intent of the regulation is to make barrier removal

essentially the same as voluntary alteration is to conflate those

two different concepts by making the very threshold for

removability the same as the standard for alteration. That cannot have been the intent of the regulation. 

Leaving that objection aside, however, Disability Rights’

second step is even more problematic. Having been referred

1

See Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 837

(9th Cir. 2007). 

8342 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
to 28 C.F.R. § 36.405, we should, says Disability Rights, then

note that § 36.405 further refers to 28 C.F.R. Pt. 36, app. A

(hereafter “Appendix A”). And, notes Disability Rights,

§ 4.17(2)(b) of Appendix A states that when making alterations to historic buildings the entity (here Foley) “should

consult with the State Historic Preservation Officer.” What

Disability Rights bypasses is the clear definition of “should”

as used in Appendix A. As opposed to “may”

2

 and “shall,”

3

the word “should” by definition “[d]enotes an advisory specification or recommendation.” See Appendix A § 3.4. I fail to

see how or why the existence of that recommendation of a

possible course of action would preclude a district court from

taking direct expert testimony and making a finding on the

effect of a proposed change on the historic significance of the

property in question. Thus, the claim that the district court

could not make a finding on the issue must fail. 

Disability Rights also raises questions about whether it had

any burden to propound a prima facie case that included an

element regarding the effect of its proposed changes on the

historic significance of the property. Other courts have indicated that plaintiffs, like Disability Rights, do have that obligation. See, e.g., Gathright-Dietrich v. Atlanta Landmarks,

Inc., 452 F.3d 1269, 1273-75 (11th Cir. 2006); Colo. Cross

Disability Coal. v. Hermanson Family Ltd., 264 F.3d 999,

1004-07 (10th Cir. 2001); Speciner v. NationsBank, N.A., 215

F. Supp. 2d 622, 632 (D. Md. 2002). However, I see no need

to resolve that issue in this case. The district court decided the

question of ready achievability after a trial. Thus, any shifting

burdens of production are of no import. Cf. St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 509-11, 113 S. Ct. 2742, 2748-49,

125 L. Ed. 2d 407 (1993) (holding that a burden shifting presumption “simply drops out of the picture” once the party

comes forward with evidence). Here the district court

received all evidence that the parties chose to put forward,

2Appendix A § 3.4. 

3

Id.

DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8343
and made a finding that there would be a deleterious impact

upon the historic significance of the property. No more was

needed, and the fact that Disability Rights did not put forth

any historic significance evidence of its own, expert or otherwise, is fatal to its position. See, e.g., Gathright-Dietrich, 452

F.3d at 1275; Colorado Cross, 264 F.3d at 1009. 

In short, as I see it, the district court’s perspicacity and care

led it to the correct result in this case. Its decision should be

affirmed. 

Thus, I concur in part and respectfully dissent in part.

8344 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES