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Disabilities Act Applies to Zoning: Court Bolsters Group Homes, Treatment Centers

The federal Americans with Disabilities Act applies to local zoning ordinances, the Ninth Circuit U.S. Court of Appeals has ruled. The decision stemmed from a City of Antioch urgency ordinance that prevented a methadone treatment clinic from opening on an appropriately zoned site. The unanimous three-judge appellate panel reversed a ruling by District Court Judge Susan Illston, who agreed ADA applies to local zoning but refused to issue a preliminary injunction against the city. The appellate panel said Illston applied the wrong legal test when deciding the clinic's preliminary injunction. The appellate court said the preliminary injunction blocking the urgency ordinance is appropriate if the clinic demonstrates it "does not pose a significant risk to the health or safety of the community" or that such threats may be ameliorated. The ruling is important for drug treatment clinics, group homes for mentally ill people and proponents of other land uses that are often unpopular, said Amitai Schwartz, attorney for the methadone clinic. "What it basically holds is that the ADA overrides the typical zoning considerations a city might entertain when adopting zoning ordinances and general plans," Schwartz said. However, the city's lawyer, Gary Lepper, said application of the ruling to actual land use matters might prove limited. The ruling is "more sweeping theoretically than it is practically," he said. Still, Lepper said he expects ADA proponents to cite the case extensively. In December of 1997, Contra Costa County officials told Bay Area Addiction Research and Treatment, Inc., and California Detoxification Programs, Inc., that the methadone clinic operated by those two organizations in the Pittsburg courthouse would have to move by September 30, 1998. The county is renovating the courthouse, where the methadone clinic has operated for 13 years. Clinic operators found a suitable new location among medical and commercial offices on Sunset Lane in Antioch, the town just east of Pittsburg. Antioch's deputy director for community development notified clinic operators in writing that the clinic would be a permitted use under the city's general plan and zoning designation. But when Antioch residents who live nearby learned of the clinic's planned relocation, they demanded the City Council prevent the move. The City Council responded on April 28, 1998, with a 45-day urgency ordinance forbidding issuance of permits for substance abuse clinics within 500 feet of a residential property. Residential backyards abut the proposed clinic site. In June, the council extended the ordinance and singled out methadone clinics. Councilmembers said the clinic would attract drug dealers and increase area crime. The clinic operators sued. They contended zoning is an activity covered by the ADA, 42 U.S.C. 12131-12165, and the Rehabilitation Act, U.S.C. 794. The district court agreed but ruled against the request for a preliminary injunction because the clinic had not demonstrated it would be irreparably harmed without the injunction or that it was likely to prevail on the suit's merits. In defending the appeal, Antioch conceded that ADA and the Rehabilitation Act apply to zoning. Still, the appellate court noted that other jurisdictions have argued that zoning is not a service, program or activity within the meaning of ADA, and the court considered the issue. In reviewing the ADA's legislative history, Judge Wallace Tashima wrote, "Congress specifically rejected an approach that could have left room for exceptions to 12132's prohibition on discrimination by public entities." Tashima further noted that the U.S. Department of Justice's Technical Assistance Manual "expressly cites zoning as an example of a public entity's obligation to avoid discrimination." Frequently citing the Second Circuit's decision in Innovative Health Systems, Inc., v. City of White Plains, 117 F.3rd 37 (2d Cir. 1997), Tashima wrote, "Although we recognize that zoning is a traditionally local activity, Congress has spoken. Accordingly, we hold that APA applies to zoning." As for the preliminary injunction request, the appellate panel said the district court wrongly applied the "reasonable modifications test." This test holds that "[a] public entity shall make reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity." According to Schwartz, the clinic's attorney, District Court Judge Illston refused the preliminary injunction because there were other places in town where the clinic could open. The appellate court agreed with Schwartz, who argued that the reasonable modifications test "makes little sense in the context of a statute that discriminates against qualified individuals on its face rather than in its application." Instead, the district court should have used the significant risk test. "[T]he ADA does not wholly preclude public entities from making certain distinctions on the basis of disability if those distinctions are absolutely necessary. The significant risk test provides public entities with the ability to craft program or statutes that respond to serious threats to the public health and safety while insuring that these (rare) distinctions are based on sound policy grounds instead of on fear and prejudice," the court ruled. To receive protection under the ADA, the methadone clinic operators need only show that it does not present a "direct threat" to the health or safety of others, the court said. Lepper, the city's lawyer, said the test prescribed by the Ninth Circuit will lead to the same answer is almost every instance. Antioch, for example, has never had a methadone clinic before, so proving that one would pose a threat to the community is nearly impossible, he said. People on either side of the issue could argue that the experience of another town is not applicable in Antioch, he said. "How do you demonstrate that it's a threat? It's going to be a damned tough test for the city to pass," Lepper said. Because it considers part of the opinion ambiguous, the city has field a request with the Ninth Circuit for a rehearing. The Case: Bay Area Addiction Research and Treatment v. City of Antioch, No. 98-16612, D.C. No. CV 98-2651 SI, 99 C.D.O.S. 4223, Daily Journal D.A.R. 5381, filed June 3, 1999. The Lawyers: For BAART: Amitai Schwartz, (415) 398-0922 For Antioch: Gary M. Lepper, Lepper, Schaefer & Harrington, (925) 256-6180.