Client Alert

New Limits On Local Government Zoning Authority: Ninth Circuit Holds ADA Applies To Zoning

7/1/1999

In Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 99 C.D.O.S. 4223 (9th Cir. 1999), the Ninth Circuit Court of Appeals held that the Americans with Disabilities Act ("ADA") and the Rehabilitation Act (the "Acts") apply to local zoning ordinances. The case is noteworthy for two reasons. First, it is the first time the Ninth Circuit has held that the Acts apply to zoning. Second, the Court explained the showing required under the Acts to obtain a preliminary injunction barring enforcement of a facially-discriminatory ordinance.

Bay Area Addiction was a class action brought by named plaintiffs Bay Area Addiction Research and Treatment, Inc. and California Detoxification Programs, Inc. (collectively, "BAART"). BAART appealed the district court's denial of its motion for a preliminary injunction barring the City of Antioch from enforcing an ordinance prohibiting the operation of methadone clinics within 500 feet of residential areas. The district court denied the motion because, among other things, BAART had not shown that it was likely to prevail on the merits at trial. Relying on Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996), the district court found that a public entity may avoid violating the ADA by making "reasonable modifications" to its challenged policies or practices. Because the ordinance did not entirely exclude BAART's clinic from the City, the district court found that the City could make a reasonable accommodation for BAART. As a result, BAART had not shown that it was likely to prevail on the merits.

The Ninth Circuit reversed and remanded, holding that: (1) both Acts apply to zoning; and (2) the district court incorrectly held that BAART did not demonstrate a likelihood of success on the merits. In holding that the Acts apply to zoning, the Court found that both the ADA and the Rehabilitation Act apply to "all the operations" of a local government. The Court also held that because the City's ordinance discriminates on its face, BAART was not required to show that the City failed to provide a reasonable modification.

Finally, the Court held that the "significant risk" test should be applied to determine whether the proposed clinic's methadone patients were qualified for protection under the ADA. An individual who poses a significant risk to the health or safety of others that cannot be ameliorated by reasonable accommodations or modifications by the agency charged with discrimination does not qualify for the ADA's protection. According to the Court, the district court should have first determined whether clinic patients posed such a risk because, if they do, they are not covered by the Act. Here, the Ninth Circuit explained, the district court erred by proceeding to assess BART's likelihood of success on the merits without first determining whether BART's patients were covered by the Act.

The Bay Area Addiction case provides some guidance to courts (and local governments) considering whether a given individual poses a "significant risk" under the Act. The Court stated that the relevant factors include "the nature, duration, and severity of the risk," and "the probability that the potential injury will actually occur." It further noted that the terms "health and safety" were broad enough to include "severe and likely harms to the community that are directly associated with the operation of the methadone clinic." The Court cautioned, however, that, "[a]lthough a city may consider legitimate safety concerns in its zoning decisions, it may not base its decisions on the perceived harm from . . . stereotypes and generalized fears."

The Court did not state whether the City must assess the risk posed by each clinic patient, or whether it could assess the risk posed by the patient population as a whole. All the cases the Court cited involved a single plaintiff. Bay Area Addiction, however, is a class action brought on behalf of all prospective patients of the clinic. The answer to this question will greatly affect the City's burden of establishing that the clinic poses a significant risk to its neighboring residents. The City has asked the Ninth Circuit to clarify this part of its opinion, but the Court has not yet responded.

Residential landowners and developers should be interested in this case because it defines the parameters under which a nearby use that could adversely affect sales or land values may be federally-protected. As for local governments, the case probably confirms what they already suspected--the ADA applies to zoning activity. However, because the Ninth Circuit remanded the case to the district court for further proceedings, no injunction has issued, and Antioch's ordinance remains in effect. The City has indicated that the matter may proceed to trial as early as August 1999. Finally, although the Court did not resolve the question of the validity of Antioch's ordinance, it strongly suggested that otherwise objectionable use restrictions may be permitted if legitimately necessary to protect the health and safety of the community.

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