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