816

May 30, 2000

The Honorable Richard C. Shelby
United States Senator
308 U.S. Courthouse
Mobile, Alabama 36602

Dear Senator Shelby:

This letter is in response to your correspondence to me on behalf of your constituent, Mr. xxxxxxx x. xxxx. According to the documents enclosed with your letter, Mr. xxxx has brought a state court case appealing the denial of his application for a variance from a zoning requirement enforced by a local permitting authority.

Our inquiry into the circumstances reveals that, in consideration of flood danger, the zoning requirement prescribes a particular elevation for a dwelling Mr. xxxx is remodeling on beachfront property. Apparently, the local zoning officials denied the request for a variance based on regulations issued by the Federal Emergency Management Agency (FEMA) in its authority relating to safety and insurance. The elevation requirement poses difficulties for Mr. xxxx, who uses a wheelchair, and he asserts that because he is an individual with a disability, under the Fair Housing Act and the Americans with Disabilities Act (ADA), he should be granted a variance from the local zoning ordinance in order to build on ground level.

Title II of the ADA prohibits discrimination on the basis of disability in the programs, services, and activities of state and local government entities. Title II requires public entities to make reasonable modifications to their policies, practices, and procedures, including their zoning policies, practices, and procedures, when such modifications are necessary to ensure that individuals with disabilities are not subjected to discrimination because of their disabilities. 28 C.F.R. §35.130(b)(7). In the appropriate circumstances, granting a variance to a zoning regulation can constitute a reasonable modification required under Title II. However, a modification need not be made if the public entity can demonstrate that making the modification would fundamentally alter the nature of the program, or cause an undue burden. 28 C.F.R. § 35.150(a)(3).

Zoning restrictions are also covered by the Fair Housing Act, which provides that it is a discriminatory practice to refuse to make a reasonable accommodation in rules, policies, practices, or services when such accommodation may be necessary to afford an individual with a disability equal opportunity to use and enjoy a dwelling. 42 U.S.C. § 3604(f)(3)(b).

While Title II and the Fair Housing Act require reasonable modification of zoning ordinances and procedures, they do not provide a broad exemption from zoning requirements for individuals with disabilities. Individuals with disabilities must generally comply with their local zoning requirements just as non-disabled individuals must comply. When a particular aspect of a zoning ordinance is alleged to be discriminatory, determination of what constitutes a reasonable modification of that aspect is highly fact-specific, requiring a case-by-case analysis. Crowder v. Kitigawa, 81 F.3d 1480, 1486 (9^th Cir. 1996). An inquiry into reasonable modification in the case of your constituent would most likely necessitate findings of fact regarding the nature of the safety and insurance concerns addressed by the FEMA regulation and local ordinance, including the nature of the risks underlying the elevation requirement; the extent of risk posed by granting a variance; and the probability that harm would occur in the event that a variance was granted.

The Department of Justice does not intervene in state court actions implicating the ADA. Nor can the Department override a state court's judicial decision regarding an individual's case in a state judicial proceeding or serve as a reviewer of the judicial decisions of courts in individual cases. Although discrimination on the basis of disability in violation of the ADA may be a basis for challenging a court's decision, that challenge must be made through the applicable appeals procedure, including appeal to the U.S. Supreme Court.

The Department's policy in this regard is based on federal judicial decisions, including U.S. Supreme Court precedent, making clear that judicial determinations by state courts can only be reviewed through the state appellate process and by the U.S. Supreme Court. See, e.g., District of Columbia Ct. Of Appeals v. Feldman, 460 U.S. 462, 476 (1982); Campbell v. Greisberger, 80 F.3d 703, 706-07 (2d Cir. 1996) (federal court has no jurisdiction to hear ADA-based challenge to a state court decision). These cases make clear that ADA challenges to state court decisions must be made through the state appellate process.

I hope this information is helpful to you in responding to your constituent. Please do not hesitate to contact the Department if we can be of assistance in other matters.

Sincerely,

Bill Lann Lee
Acting Assistant Attorney General
Civil Rights Division