Lead Opinion
Wisconsin Community Services (“WCS”),
I
BACKGROUND
A. Wisconsin Community Services
WCS is a private, non-profit organization that provides a variety of inpatient and outpatient services to individuals afflicted with severe mental illnesses.
WCS previously had received this type of special use permit for some of its other facilities. It therefore made an offer of purchase for one of the properties, contingent on obtaining the necessary special use permit from the Milwaukee zoning board. The seller of this property, concerned about this contingency, declined to accept the offer. WCS then abandoned its efforts to purchase that property and instead made a similar contingent offer on the other identified property. This facility was an 81,000 square-foot building located about one mile from its current facility at 3716 West Wisconsin Avenue. The larger facility is located in an area zoned as a “local business district.” Milwaukee, Wis. Code § 295-703-1. According to the City Code’s “use table,” health care clinics, except for nursing homes, are deemed “special uses” for this zone. Id. § 295-603-1. Incidentally, the same zone allows foster homes, shelter care facilities, community living arrangements and animal hospitals either as “permitted” or “limited” (no special approval required) uses. Id. The seller accepted WCS’ offer.
B. The First Proceeding Before the Board of Zoning Appeals
Milwaukee’s City Code defines “special use” as “[a] use which is generally acceptable in a particular zoning district but which, because of its characteristics and the characteristics of the zoning district in which it would be located, requires review on a case by case basis to determine whether it should be permitted, conditionally permitted, or denied.” Milwaukee, Wis.Code § 295-7-166. Spécial use designations are instruments of municipal planning that allow city officials to retain review power over land uses that, although presumptively allowed, may pose special problems or hazards to a neighborhood. See generally Delta Biological Res., Inc. v. Bd. Zoning Appeals,
In Milwaukee, an applicаnt for a special use permit must present its plans to the Department of City Development (“the DCD”), where they are reviewed by a plan examiner. If the DCD denies the special use application, the applicant may appeal the decision to the Milwaukee Board of Zoning Appeals (“BOZA”), where the application is reviewed, a public hearing is held and evidence is heard. See Wis. Stat. § 62.23(7)(e). Consistent with this procedure, WCS submitted a plan to DCD, outlining its intent to relocate the mental health clinic and several of its administrative offices to the new building. The plan stated that WCS would occupy 32,000 out of the 81,000 square feet of space in the building. An additional 12,000 square feet, according to the plan, would be occupied by two existing tenants, a Walgreens pharmacy and an office of the Social Security
Under Wisconsin law, in deciding whether to issue a special use permit, the City’s zoning officials are guided by four statutory considerations: (1) protection of publiс health, safety and welfare; (2) protection of the use, value and enjoyment of other property in the neighborhood; (3) traffic and pedestrian safety; and (4) consistency with the City’s comprehensive plan. See Milwaukee, Wis.Code § 295-59-5.5. After reviewing WCS’ plan, DCD concluded that these criteria had not been met. Specifically, DCD expressed concern over the second factor, protection of neighboring property value. It stated that use of the property as a mental health clinic would jeopardize the commercial revitalization that the neighborhood currently was undergoing. WCS, availing itself of its right to administrative review, then appealed the DCD’s decision to Milwaukee’s BOZA.
On March 22, 2001, BOZA held a hearing on WCS’ appeal. At the outset, WCS argued that, even if its proposal did not meet the special-use criteria, the ADA required BOZA to modify these criteria so that WCS would have the same opportunity to obtain a permit as would a clinic serving non-disabled individuals. BOZA denied this request because it did not believe that it had the authority to deviate from the City’s zoning code. Indeed, BOZA prohibited WCS from introducing evidence on the issue. Confined to making its case under the unmodified special use considerations, WCS presented evidence in an effort to refute the perception that the mental health clinic posed a safety threat and would discourage businesses from locating in the neighborhood. This evidence included testimony from a security official who told BOZA that, based on his own investigation, WCS’ patients had not been the source of any safety problems in WCS’ current neighborhood. WCS also presented letters from its current neighbors to the same effect. Finally, WCS submitted evidence of an award it had received from the National Institute of Justice for exemplary care of previously institutionalized individuals with mental health needs.
BOZA then heard testimony in opposition to the permit. An attorney representing several area businesses testified that opening a mental health clinic that serves a large number of young, unemployed males with histories of mental illness and illegal behavior substantially increases the chance of crime and anti-social behavior in the neighborhood. In a similar vein, a nearby high school voiced its fear that WCS’ clients would be riding public transit alongside its “young and vulnerable” students. R.15, Ex.B-1 at 43. Additionally, a neighborhood organization encouraged residents to object to WCS’ request; it circulated leaflets that argued that the clustering of WCS’ clientele “in one location on a daily basis raises a serious risk for the health and well being of people living and working in surrounding neighborhoods.” Id., Ex.B-3 at 327-28.
On May 9, 2001, BOZA voted unanimously to deny WCS’ application for a special use permit. The accompanying written decision said only that the proposed use was inconsistent with the considerations set forth in the zoning code. However, several board members orally announced the reasoning behind their decision. One member noted that the “overwhelming” opposition from neighborhood residents convinced him that the WCS clinic would have “a damaging effect upon neighboring business.” Id., Ex.B-1 at 6. Another member stated that WCS’ clientele, with its large number of convicted criminals, raised “red flags” for local residents. Id. at 7. These board members did
C. The First Federal Court Proceeding
Although Wisconsin law allows for direct review by a Wisconsin state court of adverse BOZA dеcisions, see Wis. Stat. § 62.23(10), WCS instead filed the present action in the United States District Court for the Eastern District of Wisconsin, see Wisconsin Corr. Serv. v. City of Milwaukee, 173 F.Supp.2d. 842 (E.D.Wis.2001) (“WCS I”). Its complaint alleged that BOZA had violated the ADA and the Rehabilitation Act by failing to make reasonable modifications to its methods for determining whether to issue a special use permit. The complaint also requested an injunction directing Milwaukee to issue the desired permit.
The district court held that BOZA had violated the federal disability laws when it failed even to consider making a reasonable modification to its policies to accommodate WCS’ request. The court began its analysis by noting the basic Supremacy Clause principle that federal laws are superior to conflicting local laws. See U.S. Const. art. VI, cl. 2. The court noted that invocation of this basic principle did not necessarily mean that WCS was entitled to a special use permit as an accommodation under the ADA. BOZA’s failure even to consider WCS’ accommodation request, however, had deprived the court of a sufficient factual record on which to determine whether WCS had a right to such an accommodation. The court directed that BOZA hear evidence on WCS’ accommodation claim and determine: (1) whether WCS’ patients are “disabled”; (2) whether the requested accommodation is “reasonable” and “necessary”; and (3) whether the requested relief would work a “fundamental change” to the services being rendered. See WCS I,
D. The Second Proceeding Before the Board of Zoning Appeals
On September 12, 2002, BOZA reconvened a public hearing to decide whether, and to what extent, the ADA and the Rehabilitation Act required it to modify its zoning policies in considering WCS’ application for a special use permit. BOZA heard testimony regarding the necessity of a modification, whether such modification was a reasonable accommodation and whether it might work any fundamental change on the City’s zoning practices.
Jill Fuller, WCS’ clinic administrator, was the first to testify. She described the state of overcrowding at WCS’ current facility and the effect that these conditions were having on WCS’ patients. Individuals with severe mental disabilities, Fuller explained, are particularly sensitive to external stimuli and often have poor socials skills. Overcrowding in the common area of WCS’ facility — a room described by another WCS administrator as noisy, smoky and packed — created an extremely stressful environment for these patients and caused their symptoms to become more acute. Additionally, Fuller testified that overcrowding compromised the privacy of one-on-one therapy sessions, which represent a primary component of WCS’ treatment.
WCS then presented testimony from its executive director, Stephen Swigart. He described the search process under-taken by WCS to find a new facility that, in addition to being of adequate size, would satisfy the clinic’s need for a central location, access to public transit, a serviceable floor plan, low renovation costs and a safe neighborhood. Swigart testified that, after being denied the special use permit, WCS had worked with city planners to
Finally, WCS presented expert testimony from Dr. Nancy Frank, the Chair and Associate Dean of the Department of Architecture and Urban Planning at the University of Wisconsin-Milwaukee. She opined that locating the mental health clinic at WCS’ desired location, 3716 West Wisconsin Avenue, would have a positive rather than an adverse effect on the surrounding neighborhood. Pointing out that a properly zoned health clinic already was located directly across the street from the proposed site, Frank noted that WCS’ clinic would be a consistent addition to the neighborhood and encourage commercial uses of a similar nature. In addition, Frank testified that the building at 3716 West Wisconsin Avenue had been mostly vacant for some time. According to Frank, the goal of city planners seeking to revitalize a commercial area should be to fill vacant space as quickly as possible. Frank predicted that relocating WCS and all of its employees to the area would attract businesses such as “restaurants, dry cleaners [and] coffee shops” eager to serve the new influx of professionals. R.45, Ex.F-2 at 58. Frank further stated that “[i]t’s actually a strategy in urban redevelopment to try to get a good nonprofit anchor in an area first because they’re often less dependant on having an area that already has a lot of consumer demand, and you can then build on that employee base.” Id. When asked about safety concerns, Frank stated that four of the six parole offices in the City of Milwaukee were located, in areas zoned for business use. Frank saw no reason why WCS’ clinic would present any more of a safety risk than these offices.
BOZA then heard testimony from Michael Murphy, an alderman representing the area in which WCS was seeking to relocate its clinic. Steadfastly opposed to WCS’ plans, Alderman Murphy stated that “WCS’ thrust to rip an 81,000 square foot building out of the heart of this emerging business district could be fatal to this area.” Id. at 94. When pressed on whether the new clinic conceivably could bring economic benefits to the neighborhood, Alderman Murphy conceded that the influx of professionals potentially could draw new businesses. He stated, nevertheless, that he objected to the plan because it meant that WCS, as a non-profit, would not pay tax on the space used for its clinic and operations; Alderman Murphy preferred a tax-paying commercial tenant in the space. Notably, the only submission on whethеr WCS’ patients were a safety risk to the community were affidavits from business owners near the proposed site. None of these opinions, however, was supported by actual evidence.
On December 22, 2002, BOZA issued a written decision denying the special use permit to WCS. It concluded that WCS’ claim for an accommodation under the disabilities laws failed because such an accommodation was neither reasonable nor necessary. On the question of necessity, BOZA framed the inquiry as “whether the requested accommodation will ameliorate, that is, directly improve the burden of the mental illnesses from which [WCS’ patients] suffer.” Id., Ex.H at 2. Concluding that WCS. had not satisfied its burden on this issue, BOZA noted that mental illness, unlike a physical impairment, “is not a one size fits all handicap or disability within the ADA.” Id. Rather, in BOZA’s view, the mental disabilities suffered by WCS’ patients were likely to vary dramatically across the patient population. It was therefore, according to BOZA, a “gross overgeneralization and speculation” for WCS to contend that each of its patients would respond favorably to treatment in
BOZA concluded that, in addition to being unnecessary, the requested accommodation also was unreasonable. In making this determination, BOZA stressed that the relocation of WCS’ clinic to its proposed site would “place an undue financial burden on the district,” id. at 5, threatening “the economic survival [of] this already shaky neighborhood,” id. at 6. According to BOZA, these costs to the City were not outweighed by the needs of WCS because WCS apparently had other relocation options available in other neighborhoods.
Finally, BOZA determined that the requested accommodation, in addition to being unreasonable and unnecessary, fundamentally would alter the City’s zoning scheme:
Every time a social service agency, AA club, homeless shelter serving mentally ill homeless people; hospital, psychologists or psychiatrists [sic] office, therapists’ office, etc. wantеd to locate their business in a zoning district requiring a special use to do so, the City or this Board would have to automatically consider giving them an accommodation under ADA regardless of the special use criteria in the City’s ordinance.
Id. at 3.
E. The Second Federal Court Proceeding
On January 24, 2003, WCS reinstated its action in federal court challenging the second BOZA ruling. It alleged that the City’s refusal to grant WCS a special use permit violated the ADA and the Rehabilitation Act. In determining the standard that it ought to employ in assessing WCS’ accommodation claim, the district court declined, despite the parties’ recommendation, to apply the test that governs cases arising under the Fair Housing Amendments Act of 1988 (“FHAA”). The FHAA requires a reasonable accommodation to zoning rules when necessary to afford a handicapped person the “equal opportunity” to obtain housing. 42 U.S.C. § 3604(f)(3)(B). In the district court’s view, this standard did not apply to the present case because WCS sought its accommodation not to obtain housing but to provide mental health services to its patients. Moreover, the court continued, “unlike housing, the general public does not require mental health services; thus, in the prеsent case, it makes little sense to inquire whether the disabled are entitled to equal opportunity to such services.” Wisconsin Cmty. Servs. v. City of Milwaukee,
Instead, relying upon our decision in Oconomowoc Residential Programs, Inc. v. City of Milwaukee,
Applying this framework, the court first assessed the accommodation’s reasonableness by weighing the benefits to WCS’ clients- against the potential cost to the City of issuing the special use permit. In the court’s view, WCS had presented con
The court next considered whether WCS had established that its requested accommodation was necessary. First, the court concluded that, for reasons it already had described in its reasonableness assessment, the proposed facility would ameliorate some of the effects of WCS’ patients’ disabilities. Second, the court rejected the City’s argument that WCS could have moved its clinic to another location where a mental health clinic would not have required a special use permit. Under the court’s view of the evidence, this option was too costly for WCS. Although recognizing that WCS perhaps could have searched for available properties more effectively, the court held that necessity may be established simply by evidence of a good-faith, albeit failed, attempt to find an alternative to the accommodation requested.
II
DISCUSSION
A.
The legal question before us is whether, and to what extent, a city must modify its zoning standards to prevent them from discriminating against the disabled. The statutes relevant to answering that question are three separate but interrelated federal laws that protect persons with disabilities from discrimination. The first two laws chronologically were the Rehabilitation Act of 1973 and the FHAA. Enactment of the ADA followed in 1990. All three statutory schemes embrace the concept that, in certain instances, the policies and practices of covered entities must be modified to accommodate the needs of the disabled. We now shall examine each statute’s accommodation requirement in detail.
1. The Rehabilitation Act of 1973
The Rehabilitation Act, 29 U.S.C. § 701 et seq., applies to federal government agеncies as well as organizations that receive federal funds. The parties in this case stipulated that the City receives federal funding and is therefore covered by the Rehabilitation Act. Much of the Rehabilitation Act focuses on employment, but section 504 broadly covers other types of programs and activities as well. Section 504(a) provides that “[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance .... ” 29 U.S.C. § 794(a).
The Rehabilitation Act does not contain a general accommodation requirement. Rather, in implementing the Rehabilitation
Nevertheless, the Supreme Court has located a duty to accommodate in the statute generally. In Alexander v. Choate,
However, in applying this principle, the Court in Choate held that Tennessee’s proposal, in fact, did not deny the plaintiffs “meaningful access” to Medicaid services. This was because “[t]he new limitation [did] not invoke criteria that have a particular exclusionary effect on the handicapped; the reduction, neutral on its face, [did] not distinguish between those whose coverage will be reduced and those whose coverage will not on the basis of any test, judgment, or trait that the handicapped as a class are less capable of meeting or less likely оf having.” Id. at 302,
Following Choate, several courts of appeals have adopted the view that the Rehabilitation Act requires public entities to modify federally assisted programs if such a modification is necessary to ensure that the disabled have equal access to the benefits of that program. See, e.g., Henrietta D. v. Bloomberg,
2. The Fair Housing Amendments Act
The duty to aсcommodate imposed by the FHAA, 42 U.S.C. § 3601 et seq., mirrors in large part the modification obligations under the Rehabilitation Act. Enacted in 1988, the FHAA extended the scope of other federal housing laws to cover persons with disabilities. Under these amendments, disabled individuals may not be prevented from buying or renting private housing because of their disabilities. See id. § 3604. They also must be provided reasonable “accommodation in rules, policies, practices, or services when such accommodation may be necessary to afford [them] equal opportunity to use and enjoy a dwelling.” Id. § 3604(f)(3)(B).
Second, the requested accommodation must be “necessary,” meaning that, without the accommodation, the plaintiff will be denied an equal opportunity to obtain the housing of her choice. See id. at 784; see also Giebeler v. M & B Assocs.,
In addition, the FHAA links the term “necessary” to the goal of “equal opportunity.” 42 U.S.C. § 3604(f)(3)(B). The “equal opportunity” element limits the accommodation duty so that not every rule that creates a general inconvenience or expense to the disabled needs to bе modified. Instead, the statute requires only accommodations necessary to ameliorate the effect of the plaintiffs disability so that she may compete equally with the non-disabled in the housing market. We have enforced this limitation by asking whéther the rule in question, if left unmodified, hurts “handicapped people by reason of their handicap, rather than ... by virtue of what they have in common with other people, such as a limited amount of money to spend on housing.” See Hemisphere Bldg. Co., Inc. v. Vill. of Richton Park,
Most recently, we considered the “equal opportunity” limitation in deciding an FHAA claim brought by a group home challenging a city’s ad hoc decision to shut off the water supply to the group home’s land. See Good Shepherd Manor Found., Inc. v. City of Momence,
The ADA was built on the Rehabilitation Act and the FHAA, but extends the reach of those laws substantially. Invoking “the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce,” the ADA was designed “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1), (b)(4). It forbids discrimination against persons with disabilities in three major areas of public life: (1) employment, which is covered by Title I of the statute, id. § 12111-12117; (2) public services, programs and activities, which are the subjects of Title II, id. § 12131-12165; and (3) public and private lodging, which is covered by Title III, id. § 12181-12189. See. generally, Tennessee v. Lane,
This case concerns Title II, commonly referred to as the public services portion of the. ADA. Title II provides that “no 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.” 42 U.S.C. § 12132.
As courts have held, municipal zoning qualifies as a public “program” or “service,” as those terms are employed in the ADA, and the enforcement of those rules is an “activity” of a local government.
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by á public entity.
(emphasis added).
Unlike Title I and Title III, Title II of the ADA does not contain a specific accommodation requirement.
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7).
Before proceeding with an assessment of the case before us, we pause for a closer examination of the regulation promulgated under the ADA because the text of this regulation gives us several important guideposts for the resolution of this case. First, as our cases already hold, failure to accommodate is an independent basis for liability under the ADA. Second, the plain language of the regulation also makes clear that an accommodation only is required when necessary to avoid discrimination on the basis of a disability. Third, the regulation states, in its plain language, that any accommodation must be a reasonable one. We shall now examine each of these features of the regulation, keeping in mind that Congress has expressed its desire that interpretation of the ADA be compatible with interpretation of the other federal disability statutes, a point also made clear in several holdings of the Supreme Court.
Under the Title II regulation, a modification must be “necessary to avoid discrimination on the basis of disability.” Id. In this way, the regulation differs slightly from the accommodation regulation promulgated under the Rehabilitation Act, which does not contain any express language regarding necessity. See id. § 41.53. However, as we noted earlier, Choate seems to read the Rehabilitation Act as containing a necessity requirement.
Similarly, there is a minor difference between the Title II regulation and the FHAA’s accommodation provision. Although the FHAA’s accommodation provision does contain an express necessity requirement, the text is different from the ADA regulation. The FHAA version reads “necessary to afford ... equal opportunity,” 42 U.S.C. § 3604(f)(3)(B); by contrast, the ADA version reads “necessary to avoid discrimination on the basis of
The regulation also requires that any accommodation be a reasonable one. In the context of the FHAA, we have interpreted this requirement to mandate an inquiry into whether the accommodation is “both efficacious and proportional to the costs to implement it.” Oconomowoc Residential Programs,
Under the law of this circuit, a plaintiff need not allege either disparate treatment or disparate impact
B.
With the key legislative provisions in full view, we turn now to the task of applying them to the case before us. In essence, we must decide whether, and to what extent, the Rehabilitation Act and Title II
WCS submits that the City must waive application of its normal special-use criteria for WCS because it has shown that granting the permit will ameliorate overcrowding, a condition that particularly affects its disabled clients. Before accepting this position, however, we must ask whether WCS has satisfied the “necessity” element contained in the Rehabilitation Act as interpreted by Choate and in the Title II regulation, see 28 C.F.R. § 35.130(b)(7). WCS contends that the necessity element is satisfied simply when a modification helps the disabled, regardless of whether it is necessary to alleviate .discrimination. Implicit in this position is that the federal accommodation obligation reaches not only rules that create barriers “on the basis of’ a person’s disability, but also rules that are not disability-based and create obstacles to persons because of some faсtor unrelated to disability.
As we already have discussed, with respect to the Rehabilitation Act, Choate held that a modification is “necessary” only when it allows the disabled to obtain benefits that they ordinarily could not have by reason of their disabilities, and not because of some quality that they share with the public generally. See Choate,
On the present record, WCS’ inability to meet the City’s special use criteria appears due not to its client’s disabilities but to its plan to open a non-profit health clinic in a location where the City desired a commercial, taxpaying tenant instead. As far as this record indicates, the City would havе rejected similar proposals from non-profit health clinics serving the non-disabled. WCS contends that Title II’s accommodation requirement calls, in such a situation, for “ ‘preferential’ treatment and ‘is not limited only to lowering barriers created by the disability itself.’ ” Appellee’s Br. at 30 n.5 (quoting Giebeler,
WCS responds that the Supreme Court’s decision in US Airways, Inc. v. Barnett,
According to WCS’ characterization, in Barnett, the seniority policy treated the disabled and non-disabled alike, and it was a non-disability characteristic (seniority) that denied Barnett the job. WCS sees no distinction between Barnett and the present case: Just as the plaintiff in Barnett was ineligible for the mail room position because of his seniority rather than his disability, WCS was ineligible for a special use permit because it was a non-profit health clinic, not because its clients were disabled. Because the Supreme Court allowed Barnett’s claim to go forward, albeit with a heightened burden of persuasion, WCS submits that it has satisfied the necessity element of its accommodation claim.
We cannot accept this argument. Barnett and the present case simply deal with different analytical problems. Fairly read, Barnett did not deal with the issue of necessity-causality, which was addressed in the cases we discussed earlier. Rather, it dealt with the second question that courts must confront in Title II accommodation cases: whether the аccommodation was reasonable. Yet, this element cannot be reached until it has been determined that an accommodation is necessary because a person’s disability is the cause for his being denied the service or benefit. As we explained earlier, to satisfy Title II’s necessity element, a plaintiff must show that, “but for” its disability, it would have received the ultimate benefit being sought — which, in WCS’ case, is a larger facility. Washington,
The district court assumed that the proposed modification could be deemed “necessary” even if the disabilities suffered by WCS’ patients were not the cause-in-fact of its inability to find a larger building. The district court failed to apply a “but for” causation standard in determining the necessity element of WCS’ accommodation claim. Choosing this course was error in light of the prevailing standards under our case law. We therefore must remand to the district cоurt so that it may afford the parties the opportunity to develop the question of whether WCS has been prevented, because of its clients’ disabilities, from locating a satisfactory new facility.
Conclusion
For the foregoing reasons, we reverse the judgment of the district court and
RbveRsed and Reminded.
Notes
. Wisconsin Community Services was formerly Wisconsin Correctional Foundation. The name was changed while this action was pending in the district court.
. The parlies have stipulated that these individuals are "disabled” within the meaning of the ADA and the Rehabilitation Act. R.45, Ex.E-1 at 8.
. Courts tend to look to the Rehabilitation Act's implementing regulations in interpreting other disability laws such as the ADA and the FHAA. See, e.g., Bragdon v. Abbott,
. The legislative history of the Fair Housing Amendments Act explains:
The Committee intends thаt the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. The Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community.
H.R.Rep. No. 100-711, at 24 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2185.
. Other circuits similarly have adopted the view that the FHAA's accommodation requirement is limited only to lowering barriers to housing that are created by the disability itself. See, e.g., Forest City Daly Housing v. Town of N. Hempstead,
. See, e.g., Bay Area Addiction Research v. City of Antioch,
. In the opening provisions of the ADA, Congress made the following finding, applicable to the statute in all parts:
individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, [and] failure to make modifications to existing facilities and practices ....
42 U.S.C. § 12101(a)(5) (emphasis added).
. Title I provides that an employer unlawfully discriminates by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified indi
.See 42 U.S.C. § 12134(a) ("[T]he Attorney General shall promulgate regulations in an accessible format that implement this part."). The Attorney General’s regulations, Congress further directed, "shall be consistent with this chapter and with the coordination regulations ... applicable to recipients of Federal financial assistance under [§ 504 of the Rehabilitation Act]." Id. § 12134(b).
. The Supreme Court never has decided whether these regulations are entitled to the degree of deference described in Chevron, U.S.A. Inc. v. National Resource Defense Council, Inc.,
. See, e.g., Bragdon,
. Contrary to the assertions of the City, see Appellant’s Br. at 40-42 (quoting Bryant Woods Inn, Inc. v. Howard County, Maryland,
. Similarly, in Olmstead, two mentally ill patients brought a Title II action against a state hospital that refused to place them in a community living environment. The Court rejected the state’s argument that "discrimination” under Title II "necessarily requires uneven treatment of similarly situated individuals.”
. We understand the City to be using "disparate impact” to signify the method of proof under anti-discrimination laws that compares the treatment among otherwise similarly situated individuals. See, e.g., Watson v. Fort Worth Bank & Trust,
.Because the district court resolved WCS’ ADA claim on a reasonable accommodation basis, it did not have occasion to reach WCS' disparate impact or disparate trеatment arguments. We therefore do not address, nor do we offer any comment on, the merits of those claims.
. Because we have determined that the district court erred in determining whether the accommodation was “necessary,’1 we need not reach the question of whether its determination that the accommodation was “reasonable” was error.
Also, as noted above, see supra note 15, because the district court resolved WCS’ claim on the failure of the City to offer a reasonable accommodation, the court did not address WCS’ alternative theories of disparate impact and disparate treatment. The district court is free to consider those claims on remand should WCS ultimately fail with respect to its reasonable accommodation claim.
Concurrence Opinion
concurring.
One question on which the parties have disagreed is whether 28 C.F.R. § 35.130(b)(7), which was promulgated under Title II of the Americans with Disabilities Act, establishes an accommodation requirement in addition to the statutory rules that prohibit disparate treatment and limit disparate impact. The district judge said “yes,” the panel said “no,” and now the en banc court says “yes.” Having written the panel’s opinion sаying “no,” see
The regulation provides:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
A proposed accommodation is required only if it is “necessary” to “avoid discrimination”. That an alteration in zoning rules would be convenient or helpful to a plaintiff does not make the change “necessary.” Moreover, “discrimination” exists only if the zoning regulation (or other rule at issue) hurts “handicapped people by reason of their handicap, rather than ... by virtue of what they have in common with other people, such as a limited amount of money to spend” (maj. at 737, 748, 749, 751-52, 754, all quoting from Hemisphere Building Co. v. Richton Park,
In a brief amicus curiae filed at the court’s request, the Civil Rights Division of the Department of Justice told us thаt this regulation creates an accommodation requirement distinct in the sense that disparate impact may be established by case-specific as well as statistical evidence. In employment-discrimination litigation under Title VII of the Civil Rights Act of 1964 or the Age Discrimination in Employment Act, a “disparate impact” means a statistically significant adverse effect of a rule that is neutral in its terms. There is no good reason, however, why a regulation may not take a different approach to disparate-impact theories in disability-discrimination cases, where the circumstances of the affected persons may be so different — and the number of zoning or housing-code rules so numerous — that statistical analysis would be impractical. Title II does not specify a regimen for disparate-impact analysis, which means that a regulation requiring local zoning rules to yield when “necessary” to avoid applicant-specific disparate impacts that occur by reason of disability is a reasonable way to implement the statute. So I accept the Civil Rights Division’s reading of this regulation, and I understand the court’s opinion to do so too.