Wisconsin Community Services, Inc. v. City of Milwaukee

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1966

WISCONSIN COMMUNITY SERVICES, INC.

and WISCONSIN CORRECTIONAL

FOUNDATION, INCORPORATED,

Plaintiffs-Appellees,

v.

CITY OF MILWAUKEE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01 C 575—Lynn Adelman, Judge.

____________

REARGUED EN BANC JANUARY 18, 2006—DECIDED SEPTEMBER 26, 2006

____________

Before FLAUM, Chief Judge, and BAUER, POSNER,

EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, WOOD,

EVANS and WILLIAMS, Circuit Judges.Œ

RIPPLE, Circuit Judge. Wisconsin Community Services

(“WCS”),1 a provider of treatment to mentally ill patients,

brought this action under Title II of the Americans with

Œ

The Honorable Diane S. Sykes took no part in the consideration

or decision of this case.

1

Wisconsin Community Services was formerly Wisconsin

Correctional Foundation. The name was changed while this

action was pending in the district court.

2 No. 04-1966

Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, and

section 504 of the Rehabilitation Act of 1973, id. § 794. The

WCS sought an injunction ordering the City of Milwaukee

(“the City”) to issue a zoning permit that would allow it

to move its mental health clinic to an area of Milwaukee,

Wisconsin, where health clinics are permitted only on a

case-by-case basis. The district court granted partial sum-

mary judgment to WCS, concluding that the ADA and the

Rehabilitation Act obligated the City to accommodate the

disabilities of WCS’ patients by allowing WCS to move to its

desired location. For the reasons set forth in this opinion, we

reverse the judgment of the district court and remand for

proceedings consistent with this opinion.

I

BACKGROUND

A. Wisconsin Community Services

WCS is a private, non-profit organization that provides a

variety of inpatient and outpatient services to indivi-

duals afflicted with severe mental illnesses.2 WCS pro-

vides patients, who cannot live alone without substan-

tial assistance, with psychiatric treatment, counseling, med-

ication monitoring, transportation and help in finding

housing and employment. A number of WCS’ patients have

a history of substance abuse, and a majority have had

previous run-ins with the criminal justice system; WCS

often accepts patient referrals from court-related agencies

2

The parties have stipulated that these individuals are “dis-

abled” within the meaning of the ADA and the Rehabilitation

Act. R.45, Ex.E-1 at 8.

No. 04-1966 3

such as the United States Probation Service. Although

WCS staff sometimes will treat patients in their homes, most

of WCS’ services are administered in a 7,500 square-foot

mental health clinic located at 2023 West Wisconsin Avenue

in the City of Milwaukee. Originally, WCS shared this

facility with other non-profit organizations, but, as its

clientele grew, WCS expanded to occupy the entire building.

In 1994, at the time of this initial expansion, WCS employed

twenty full-time employees and served 250 patients.

By 1998, the staff at WCS’ 2023 West Wisconsin Avenue

facility had grown to approximately forty full-time employ-

ees serving approximately 400 patients. This increase in

clients, services and personnel had caused a shortage in

space available for employee parking, client treatment,

group therapy sessions and other services. Faced with the

shortage, WCS at first considered remodeling, but finally

concluded that such a project would be too costly and

would interfere with client care. WCS then began search-

ing for a new building. Despite having a limited budget,

WCS needed a facility that was located in a safe neighbor-

hood and had adequate floor space, parking and access to

public transit. After searching for three years, WCS was able

to find two buildings that met its criteria. Neither property,

unfortunately, was located in a neighborhood zoned for

health clinics. Both were in areas where health clinics are

permitted only as “special uses” that require issuance of a

permit by the Milwaukee zoning authorities.

WCS previously had received this type of special use

permit for some of its other facilities. It therefore made an

offer of purchase for one of the properties, contingent on

obtaining the necessary special use permit from the Milwau-

kee zoning board. The seller of this property, concerned

about this contingency, declined to accept the offer. WCS

4 No. 04-1966

then abandoned its efforts to purchase that property and

instead made a similar contingent offer on the other identi-

fied property. This facility was an 81,000 square-foot

building located about one mile from its current facility at

3716 West Wisconsin Avenue. The larger facility is located

in an area zoned as a “local business district.” Milwaukee,

Wis. Code § 295-703-1. According to the City Code’s “use

table,” health care clinics, except for nursing homes, are

deemed “special uses” for this zone. Id. § 295-603-1. Inciden-

tally, the same zone allows foster homes, shelter care

facilities, community living arrangements and animal

hospitals either as “permitted” or “limited” (no special

approval required) uses. Id. The seller accepted WCS’ offer.

B. The First Proceeding Before the Board of Zoning

Appeals

Milwaukee’s City Code defines “special use” as “[a] use

which is generally acceptable in a particular zoning dis-

trict but which, because of its characteristics and the charac-

teristics of the zoning district in which it would be located,

requires review on a case by case basis to determine

whether it should be permitted, conditionally permitted, or

denied.” Milwaukee, Wis. Code § 295-7-166. Special use

designations are instruments of municipal planning that

allow city officials to retain review power over land uses

that, although presumptively allowed, may pose special

problems or hazards to a neighborhood. See generally Delta

Biological Res., Inc. v. Bd. Zoning Appeals, 467 N.W.2d 164,

166-67 (Wis. Ct. App. 1991).

In Milwaukee, an applicant for a special use permit must

present its plans to the Department of City Develop-

No. 04-1966 5

ment (“the DCD”), where they are reviewed by a plan

examiner. If the DCD denies the special use application, the

applicant may appeal the decision to the Milwaukee Board

of Zoning Appeals (“BOZA”), where the application is

reviewed, a public hearing is held and evidence is heard. See

Wis. Stat. § 62.23(7)(e). Consistent with this procedure, WCS

submitted a plan to DCD, outlining its intent to relocate the

mental health clinic and several of its administrative offices

to the new building. The plan stated that WCS would

occupy 32,000 out of the 81,000 square feet of space in the

building. An additional 12,000 square feet, according to the

plan, would be occupied by two existing tenants, a

Walgreens pharmacy and an office of the Social Security

Administration. The remaining 37,000 square feet, the plan

stated, would be rented out for use as office space or for

other commercial purposes.

Under Wisconsin law, in deciding whether to issue a

special use permit, the City’s zoning officials are guided by

four statutory considerations: (1) protection of public health,

safety and welfare; (2) protection of the use, value and

enjoyment of other property in the neighborhood; (3) traffic

and pedestrian safety; and (4) consistency with the City’s

comprehensive plan. See Milwaukee, Wis. Code § 295-59-5.5.

After reviewing WCS’ plan, DCD concluded that these

criteria had not been met. Specifically, DCD expressed

concern over the second factor, protection of neighboring

property value. It stated that use of the property as a mental

health clinic would jeopardize the commercial revitalization

that the neighborhood currently was undergoing. WCS,

availing itself of its right to administrative review, then

appealed the DCD’s decision to Milwaukee’s BOZA.

On March 22, 2001, BOZA held a hearing on WCS’ appeal.

At the outset, WCS argued that, even if its proposal did not

6 No. 04-1966

meet the special-use criteria, the ADA required BOZA to

modify these criteria so that WCS would have the same

opportunity to obtain a permit as would a clinic serving

non-disabled individuals. BOZA denied this request

because it did not believe that it had the authority to deviate

from the City’s zoning code. Indeed, BOZA prohibited WCS

from introducing evidence on the issue. Confined to making

its case under the unmodified special use considerations,

WCS presented evidence in an effort to refute the perception

that the mental health clinic posed a safety threat and would

discourage businesses from locating in the neighborhood.

This evidence included testimony from a security official

who told BOZA that, based on his own investigation, WCS’

patients had not been the source of any safety problems in

WCS’ current neighborhood. WCS also presented letters

from its current neighbors to the same effect. Finally, WCS

submitted evidence of an award it had received from the

National Institute of Justice for exemplary care of previously

institutionalized individuals with mental health needs.

BOZA then heard testimony in opposition to the permit.

An attorney representing several area businesses testified

that opening a mental health clinic that serves a large

number of young, unemployed males with histories of

mental illness and illegal behavior substantially increases

the chance of crime and anti-social behavior in the neighbor-

hood. In a similar vein, a nearby high school voiced its fear

that WCS’ clients would be riding public transit alongside

its “young and vulnerable” students. R.15, Ex.B-1 at 43.

Additionally, a neighborhood organization encouraged

residents to object to WCS’ request; it circulated leaflets that

argued that the clustering of WCS’ clientele “in one location

on a daily basis raises a serious risk for the health and well

being of people living and working in surrounding neigh-

borhoods.” Id., Ex.B-3 at 327-28.

No. 04-1966 7

On May 9, 2001, BOZA voted unanimously to deny

WCS’ application for a special use permit. The accompany-

ing written decision said only that the proposed use was

inconsistent with the considerations set forth in the zon-

ing code. However, several board members orally an-

nounced the reasoning behind their decision. One member

noted that the “overwhelming” opposition from neighbor-

hood residents convinced him that the WCS clinic would

have “a damaging effect upon neighboring business.” Id.,

Ex.B-1 at 6. Another member stated that WCS’ clientele,

with its large number of convicted criminals, raised “red

flags” for local residents. Id. at 7. These board members did

not think that BOZA had the duty to question the “percep-

tions” of local residents regarding the possible dangers

presented by WCS’ patients. Id. at 6-7.

C. The First Federal Court Proceeding

Although Wisconsin law allows for direct review by

a Wisconsin state court of adverse BOZA decisions, see

Wis. Stat. § 62.23(10), WCS instead filed the present action

in the United States District Court for the Eastern District of

Wisconsin, see Wisconsin Corr. Serv. v. City of Milwaukee, 173

F. Supp. 2d. 842 (E.D. Wis. 2001) (“WCS I”). Its complaint

alleged that BOZA had violated the ADA and the Rehabili-

tation Act by failing to make reasonable modifications to its

methods for determining whether to issue a special use

permit. The complaint also requested an injunction directing

Milwaukee to issue the desired permit.

The district court held that BOZA had violated the federal

disability laws when it failed even to consider making a

reasonable modification to its policies to accommodate

WCS’ request. The court began its analysis by noting the

8 No. 04-1966

basic Supremacy Clause principle that federal laws are

superior to conflicting local laws. See U.S. Const. art. VI, cl.

2. The court noted that invocation of this basic principle did

not necessarily mean that WCS was entitled to a special use

permit as an accommodation under the ADA. BOZA’s

failure even to consider WCS’ accommodation request,

however, had deprived the court of a sufficient factual

record on which to determine whether WCS had a right to

such an accommodation. The court directed that BOZA hear

evidence on WCS’ accommodation claim and determine: (1)

whether WCS’ patients are “disabled”; (2) whether the

requested accommodation is “reasonable” and “necessary”;

and (3) whether the requested relief would work a “funda-

mental change” to the services being rendered. See WCS I,

173 F. Supp. 2d at 853 (quoting 28 C.F.R. § 35.130(b)(7)).

D. The Second Proceeding Before the Board of Zoning

Appeals

On September 12, 2002, BOZA reconvened a public

hearing to decide whether, and to what extent, the ADA and

the Rehabilitation Act required it to modify its zoning

policies in considering WCS’ application for a special use

permit. BOZA heard testimony regarding the necessity of a

modification, whether such modification was a reasonable

accommodation and whether it might work any fundamen-

tal change on the City’s zoning practices.

Jill Fuller, WCS’ clinic administrator, was the first to

testify. She described the state of overcrowding at WCS’

current facility and the effect that these conditions were

having on WCS’ patients. Individuals with severe men-

tal disabilities, Fuller explained, are particularly sensitive to

external stimuli and often have poor socials skills. Over-

crowding in the common area of WCS’ facility—a room

No. 04-1966 9

described by another WCS administrator as noisy, smoky

and packed—created an extremely stressful environment for

these patients and caused their symptoms to become more

acute. Additionally, Fuller testified that overcrowding

compromised the privacy of one-on-one therapy sessions,

which represent a primary component of WCS’ treatment.

WCS then presented testimony from its executive director,

Stephen Swigart. He described the search process under-

taken by WCS to find a new facility that, in addition to

being of adequate size, would satisfy the clinic’s need for a

central location, access to public transit, a serviceable floor

plan, low renovation costs and a safe neighborhood. Swigart

testified that, after being denied the special use permit, WCS

had worked with city planners to locate a suitably zoned

property, but that its efforts had been unsuccessful. Any

potential alternatives, Swigart explained, were either

unavailable or too costly.

Finally, WCS presented expert testimony from Dr. Nancy

Frank, the Chair and Associate Dean of the Department

of Architecture and Urban Planning at the University of

Wisconsin-Milwaukee. She opined that locating the men-

tal health clinic at WCS’ desired location, 3176 West Wiscon-

sin Avenue, would have a positive rather than an adverse

effect on the surrounding neighborhood. Pointing out that

a properly zoned health clinic already was located directly

across the street from the proposed site, Frank noted that

WCS’ clinic would be a consistent addition to the neighbor-

hood and encourage commercial uses of a similar nature. In

addition, Frank testified that the building at 3176 West

Wisconsin Avenue had been mostly vacant for some time.

According to Frank, the goal of city planners seeking to

revitalize a commercial area should be to fill vacant space as

quickly as possible. Frank predicted that relocating WCS

10 No. 04-1966

and all of its employees to the area would attract businesses

such as “restaurants, dry cleaners [and] coffee shops” eager

to serve the new influx of professionals. R.45, Ex.F-2 at 58.

Frank further stated that “[i]t’s actually a strategy in urban

redevelopment to try to get a good non-profit anchor in an

area first because they’re often less dependant on having an

area that already has a lot of consumer demand, and you

can then build on that employee base.” Id. When asked

about safety concerns, Frank stated that four of the six

parole offices in the City of Milwaukee were located in areas

zoned for business use. Frank saw no reason why WCS’

clinic would present any more of a safety risk than these

offices.

BOZA then heard testimony from Michael Murphy, an

alderman representing the area in which WCS was seek-

ing to relocate its clinic. Steadfastly opposed to WCS’ plans,

Alderman Murphy stated that “WCS’ thrust to rip an 81,000

square foot building out of the heart of this emerging

business district could be fatal to this area.” Id. at 94. When

pressed on whether the new clinic conceivably could bring

economic benefits to the neighborhood, Alderman Murphy

conceded that the influx of professionals potentially could

draw new businesses. He stated, nevertheless, that he

objected to the plan because it meant that WCS, as a non-

profit, would not pay tax on the space used for its clinic and

operations; Alderman Murphy preferred a tax-paying

commercial tenant in the space. Notably, the only submis-

sion on whether WCS’ patients were a safety risk to the

community were affidavits from business owners near the

proposed site. None of these opinions, however, was

supported by actual evidence.

On December 22, 2002, BOZA issued a written decision

denying the special use permit to WCS. It concluded that

No. 04-1966 11

WCS’ claim for an accommodation under the disabilities

laws failed because such an accommodation was neither

reasonable nor necessary. On the question of necessity,

BOZA framed the inquiry as “whether the requested

accommodation will ameliorate, that is, directly improve the

burden of the mental illnesses from which [WCS’ patients]

suffer.” Id., Ex.H at 2. Concluding that WCS had not

satisfied its burden on this issue, BOZA noted that mental

illness, unlike a physical impairment, “is not a one size fits

all handicap or disability within the ADA.” Id. Rather, in

BOZA’s view, the mental disabilities suffered by WCS’

patients were likely to vary dramatically across the patient

population. It was therefore, according to BOZA, a “gross

overgeneralization and speculation” for WCS to contend

that each of its patients would respond favorably to treat-

ment in the new, larger facility. Id. Moreover, in BOZA’s

estimation, the factors considered by WCS in seeking out a

new facility were not linked to its patients’ disabilities.

According to BOZA, “[t]he WCS search criteria resemble

those of many other commercial businesses, profit or non

profit, which have outgrown their physical premises and

want to move into a larger setting.” Id.

BOZA concluded that, in addition to being unnecessary,

the requested accommodation also was unreasonable. In

making this determination, BOZA stressed that the relo-

cation of WCS’ clinic to its proposed site would “place an

undue financial burden on the district,” id. at 5, threatening

“the economic survival [of] this already shaky neighbor-

hood,” id. at 6. According to BOZA, these costs to the

City were not outweighed by the needs of WCS because

WCS apparently had other relocation options available

in other neighborhoods.

Finally, BOZA determined that the requested accommoda-

12 No. 04-1966

tion, in addition to being unreasonable and unnecessary,

fundamentally would alter the City’s zoning scheme:

Every time a social service agency, AA club, homeless

shelter serving mentally ill homeless people; hospital,

psychologists or psychiatrists [sic] office, therapists’

office, etc. wanted to locate their business in a zoning

district requiring a special use to do so, the City or this

Board would have to automatically consider giving

them an accommodation under ADA regardless of the

special use criteria in the City’s ordinance.

Id. at 3.

E. The Second Federal Court Proceeding

On January 24, 2003, WCS reinstated its action in federal

court challenging the second BOZA ruling. It alleged that

the City’s refusal to grant WCS a special use permit violated

the ADA and the Rehabilitation Act. In determining the

standard that it ought to employ in assessing WCS’ accom-

modation claim, the district court declined, despite the

parties’ recommendation, to apply the test that governs

cases arising under the Fair Housing Amendments Act of

1988 (“FHAA”). The FHAA requires a reasonable accommo-

dation to zoning rules when necessary to afford a handi-

capped person the “equal opportunity” to obtain housing.

42 U.S.C. § 3604(f)(3)(B). In the district court’s view, this

standard did not apply to the present case because WCS

sought its accommodation not to obtain housing but to

provide mental health services to its patients. Moreover, the

court continued, “unlike housing, the general public does

not require mental health services; thus, in the present case,

it makes little sense to inquire whether the disabled are

entitled to equal opportunity to such services.” Wisconsin

Cmty. Servs. v. City of Milwaukee, 309 F. Supp. 2d 1096, 1105

No. 04-1966 13

(E.D. Wis. 2004) (“WCS II”).

Instead, relying upon our decision in Oconomowoc Residen-

tial Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir.

2002), the court held that, to satisfy its initial burden, WCS

must show that its requested accommodation is (1) reason-

able and (2) necessary to enhance affirmatively its disabled

patients’ “ ‘quality of life by ameliorating the effects of the

disability.’ ” WCS II, 309 F. Supp. 2d at 1105 (quoting

Oconomowoc Residential Programs, 300 F.3d at 784). Once

WCS had made this showing, according to the district court,

the City then must “demonstrate unreasonableness or

undue hardship in the particular circumstances.” Id.

Applying this framework, the court first assessed the

accommodation’s reasonableness by weighing the benefits

to WCS’ clients against the potential cost to the City of

issuing the special use permit. In the court’s view, WCS had

presented convincing evidence that overcrowding was a real

problem at its current facility and one that both aggravated

the effects of its clients’ disabilities and impaired WCS’

ability to provide services that ameliorate such effects. The

new, larger facility, the court stated, would solve this

overcrowding problem and benefit WCS’ patients substan-

tially. Against this benefit, the court weighed the costs

purportedly incurred by the City in undermining its zoning

code, interfering with the revitalization of a business district

and losing potential tax revenue. The court did not find

these costs significant enough to outweigh the clear benefit

that the special use permit would provide WCS. Crediting

the testimony of Frank, the court found that WCS’ new

clinic actually would benefit the economic development of

the neighborhood. In any event, noted the court, having a

tenant in a vacant building was better than having no tenant

at all. Further, the court took the view that, given WCS’

plans to lease a majority of its new space to commercial

14 No. 04-1966

tenants, the City would not be deprived of substantial tax

revenue.

The court next considered whether WCS had established

that its requested accommodation was necessary. First,

the court concluded that, for reasons it already had de-

scribed in its reasonableness assessment, the proposed

facility would ameliorate some of the effects of WCS’

patients’ disabilities. Second, the court rejected the City’s

argument that WCS could have moved its clinic to another

location where a mental health clinic would not have

required a special use permit. Under the court’s view of

the evidence, this option was too costly for WCS. Al-

though recognizing that WCS perhaps could have

searched for available properties more effectively, the

court held that necessity may be established simply by

evidence of a good-faith, albeit failed, attempt to find an

alternative to the accommodation requested.

II

DISCUSSION

A.

The legal question before us is whether, and to what

extent, a city must modify its zoning standards to prevent

them from discriminating against the disabled. The stat-

utes relevant to answering that question are three separate

but interrelated federal laws that protect persons with

disabilities from discrimination. The first two laws chrono-

logically were the Rehabilitation Act of 1973 and the FHAA.

Enactment of the ADA followed in 1990. All three statutory

schemes embrace the concept that, in certain instances, the

policies and practices of covered entities must be modified

to accommodate the needs of the disabled. We now shall

examine each statute’s accommodation requirement in

No. 04-1966 15

detail.

1. The Rehabilitation Act of 1973

The Rehabilitation Act, 29 U.S.C. § 701 et seq., applies to

federal government agencies as well as organizations that

receive federal funds. The parties in this case stipulated that

the City receives federal funding and is therefore covered by

the Rehabilitation Act. Much of the Rehabilitation Act

focuses on employment, but section 504 broadly covers

other types of programs and activities as well. Section 504(a)

provides that “[n]o otherwise qualified individual with a

disability in the United States . . . shall, solely by reason of

her or his disability, be excluded from the participation in,

be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance . . . .” 29 U.S.C. § 794(a).

The Rehabilitation Act does not contain a general accom-

modation requirement. Rather, in implementing the Re-

habilitation Act,3 the Department of Health and Human

Services (“HHS”) promulgated several regulations that

specifically require reasonable accommodations. See Traynor

3

Courts tend to look to the Rehabilitation Act’s implementing

regulations in interpreting other disability laws such as the

ADA and the FHAA. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 631-

32 (1998) (stating that courts are required to “construe the ADA

to grant at least as much protection as provided by the regula-

tions implementing the Rehabilitation Act”); see also 42 U.S.C. §

12201 (“Except as otherwise provided in this chapter, nothing in

this chapter shall be construed to apply a lesser standard than the

standards applied under title V of the Rehabilitation Act of 1973

(29 U.S.C. § 790 et seq.) or the regulations issued by Federal

agencies pursuant to such title.”).

16 No. 04-1966

v. Turnage, 485 U.S. 535, 550 n.10 (1988) (observing that these

regulations “were drafted with the oversight and approval

of Congress and therefore constitute an important source of

guidance on the meaning of § 504”) (internal quotation

marks and citations omitted)). The most pertinent of these

regulations requires recipients of federal funds to “make

reasonable accommodation to the known physical or mental

limitations of an otherwise qualified handicapped applicant

or employee unless the recipient can demonstrate that the

accommodation would impose an undue hardship on the

operation of its program.” 28 C.F.R. § 41.53. The regulation’s

use of the terms “applicant or employee” suggests that it

pertains most directly to workplace accommodation, rather

than to the modification of a city’s zoning practices.

Nevertheless, the Supreme Court has located a duty to

accommodate in the statute generally. In Alexander v. Choate,

469 U.S. 287 (1985), handicapped individuals challenged a

proposal by the State of Tennessee to reduce the number of

inpatient hospital days that the state Medicaid program

would pay hospitals on behalf of Medicaid recipients.

Because handicapped individuals spend more time in

hospitals, on average, than the non-disabled, the plaintiffs

argued that Tennessee’s proposal had a disproportionate

effect on the disabled and hence was discriminatory in

violation of section 504 of the Rehabilitation Act. After

rejecting Tennessee’s argument that federal law prohibits

only intentional discrimination against the handicapped, the

Court explained that “ ‘a refusal to modify an existing

program might become unreasonable and discriminatory.’”

Id. at 300 (quoting Southeastern Cmty. Coll. v. Davis, 442 U.S.

397, 413 (1979)). The Rehabilitation Act’s promise of

“meaningful access” to state benefits, according to the

Court, means that “reasonable accommodations in the

grantee’s program or benefit may have to be made.” Id. at

No. 04-1966 17

301.

However, in applying this principle, the Court in Choate

held that Tennessee’s proposal, in fact, did not deny the

plaintiffs “meaningful access” to Medicaid services. This

was because “[t]he new limitation [did] not invoke

criteria that have a particular exclusionary effect on the

handicapped; the reduction, neutral on its face, [did] not

distinguish between those whose coverage will be re-

duced and those whose coverage will not on the basis of any

test, judgment, or trait that the handicapped as a class are

less capable of meeting or less likely of having.” Id. at 302.

More specifically, the Court noted that there was no

“suggestion” in the record “that the illnesses uniquely

associated with the handicapped or occurring with greater

frequency among them cannot be effectively treated, at least

in part, with fewer than 14 days’ coverage.” Id. n.22. In

short, the Court held that, because the denial of benefits was

not linked in any way to the plaintiffs’ particular disabili-

ties, Tennessee’s hospital-day reduction, even when left

unmodified, did not offend the Rehabilitation Act.

Following Choate, several courts of appeals have adopted

the view that the Rehabilitation Act requires public en-

tities to modify federally assisted programs if such a

modification is necessary to ensure that the disabled have

equal access to the benefits of that program. See, e.g.,

Henrietta D. v. Bloomberg, 331 F.3d 261, 274-75 (2d Cir. 2003).

These circuits, including ours, also follow the corollary

principle implicit in the Choate decision that the Rehabilita-

tion Act helps disabled individuals obtain access to benefits

only when they would have difficulty obtaining those

benefits “by reason of” their disabilities, and not because of

some quality that they share generally with the public. See,

e.g., id. at 276-79 (acknowledging “that the ADA and the

18 No. 04-1966

Rehabilitation Act are addressed to rules that hurt people

with disabilities by reason of their handicap, rather than

that hurt them solely by virtue of what they have in com-

mon with other people” (internal quotation marks, citations,

alterations and emphasis omitted)); Washington v. Indiana

High Sch. Athletic Assoc., 181 F.3d 840, 848 (7th Cir. 1999)

(noting that, in a Rehabilitation Act modification claim,

“[t]here must be a causal connection between the disability

and [the plaintiff’s] ineligibility”); Forest City Daly Housing

v. Town of N. Hempstead, 175 F.3d 144, 152 (2d Cir. 1999)

(holding that, for claims under the FHAA, the ADA and the

Rehabilitation Act, a proposed accommodation must be

“necessary in light of the disabilities” of the plaintiffs; and

dismissing claims because “no analogous housing opportu-

nity exist[ed] for persons without disabilities” (internal

quotation marks omitted)); Crowder v. Kitagawa, 81 F.3d

1480, 1485 (9th Cir. 1996) (relying on Choate to require

Hawaii to modify a law that required carnivorous animals

entering the state, including guide dogs, to be quarantined

for 120 days because the quarantine discriminated against

the visually impaired “by reason of their disability”); United

States v. Bd. of Trs. of the Univ. of Alabama, 908 F.2d 740, 748

(11th Cir. 1990) (recognizing that Choate requires an unmod-

ified program to bear more heavily on the disabled on

account of their disability and distinguishing the case of a

deaf student who, unlike his non-handicapped peers, is less

likely to benefit from his classes without a sign-language

interpreter).

2. The Fair Housing Amendments Act

The duty to accommodate imposed by the FHAA, 42

U.S.C. § 3601 et seq., mirrors in large part the modification

obligations under the Rehabilitation Act. Enacted in 1988,

No. 04-1966 19

the FHAA extended the scope of other federal housing laws

to cover persons with disabilities. Under these amendments,

disabled individuals may not be prevented from buying or

renting private housing because of their disabilities. See id.

§ 3604. They also must be provided reasonable “accommo-

dation in rules, policies, practices, or services when such

accommodation may be necessary to afford [them] equal

opportunity to use and enjoy a dwelling.” Id. §

3604(f)(3)(B).4

Although the plain language of the FHAA provides little

guidance concerning the reach of its accommodation

requirement, the contours of the obligation have been given

substantial elaboration by this court and other courts of

appeals. The basic elements of an FHAA accommodation

claim are well-settled. First, the requested accommodation

must be reasonable, which, as we have stated, is a “highly

fact-specific inquiry and requires balancing the needs of the

parties. An accommodation is reasonable if it is both

efficacious and proportional to the costs to implement it.”

Oconomowoc Residential Programs, 300 F.3d at 784 (internal

citations omitted). In the zoning context, a municipality may

4

The legislative history of the Fair Housing Amendments Act

explains:

The Committee intends that the prohibition against discrimi-

nation against those with handicaps apply to zoning deci-

sions and practices. The Act is intended to prohibit the

application of special requirements through land-use

regulations, restrictive covenants, and conditional or special

use permits that have the effect of limiting the ability of such

individuals to live in the residence of their choice in the

community.

H.R. Rep. No. 100-711, at 24 (1988), reprinted in 1988 U.S.C.C.A.N.

2173, 2185.

20 No. 04-1966

show that a modification to its policy is “unreasonable if it

is so at odds with the purpose behind the rule that it would

be a fundamental and unreasonable change.” Id. (internal

quotation marks and citations omitted).

Second, the requested accommodation must be “neces-

sary,” meaning that, without the accommodation, the

plaintiff will be denied an equal opportunity to obtain the

housing of her choice. See id. at 784; see also Giebeler v. M &

B Assocs., 343 F.3d 1143, 1155 (9th Cir. 2003); Smith & Lee

Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996).

This has been described by courts essentially as a causation

inquiry. See, e.g., Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjust-

ment of Twp. of Scotch Plains, 284 F.3d 442, 460 (3d Cir. 2002)

(“This requirement has attributes of a causation require-

ment. And if the proposed accommodation provides no

direct amelioration of a disability’s effect, it cannot be said

to be necessary.” (internal quotation marks and citations

omitted)).

In addition, the FHAA links the term “necessary” to the

goal of “equal opportunity.” 42 U.S.C. § 3604(f)(3)(B). The

“equal opportunity” element limits the accommodation

duty so that not every rule that creates a general inconve-

nience or expense to the disabled needs to be modified.

Instead, the statute requires only accommodations necessary

to ameliorate the effect of the plaintiff’s disability so that she

may compete equally with the non-disabled in the housing

market. We have enforced this limitation by asking whether

the rule in question, if left unmodified, hurts “handicapped

people by reason of their handicap, rather than . . . by virtue of

what they have in common with other people, such as a

limited amount of money to spend on housing.” See Hemi-

sphere Bldg. Co. v. Vill. of Richton Park, 171 F.3d 437, 440 (7th

Cir. 1999) (emphasis in original).

No. 04-1966 21

Most recently, we considered the “equal opportunity”

limitation in deciding an FHAA claim brought by a group

home challenging a city’s ad hoc decision to shut off the

water supply to the group home’s land. See Good Shepherd

Manor Found., Inc. v. City of Momence, 323 F.3d 557, 561-64

(7th Cir. 2003). Rejecting the group home’s claim that the

city had to modify its decision because shutting off its water

harmed its disabled residents by preventing them from

living in group homes, we stated that “[c]utting off the

water prevents anyone from living in a dwelling, not just

handicapped people.” Id. at 562. Put differently, the plain-

tiff’s accommodation claim failed because the disability

suffered by the group home’s residents did not deny them

an equal opportunity to obtain housing.5

5

Other circuits similarly have adopted the view that the FHAA’s

accommodation requirement is limited only to lowering barriers

to housing that are created by the disability itself. See, e.g., Forest

City Daly Housing v. Town of N. Hempstead, 175 F.3d 144, 151-53

(2d Cir. 1999) (upholding the decision of a zoning board to

prevent a developer of an assisted living facility to relocate to a

business zone and agreeing with the district court that “reason-

able accommodations were not necessary to afford prospective

residents an equal housing opportunity, because persons without

disabilities do not have opportunities analogous to those being

sought here”); Bryant Woods Inn, Inc. v. Howard County, 124 F.3d

597, 604 (4th Cir. 1997) (“The ‘necessary’ element—the FHA

provision mandating reasonable accommodations which are

necessary to afford an equal opportunity—requires the demonstra-

tion of a direct linkage between the proposed accommodation

and the ‘equal opportunity’ to be provided to the handicapped

person. This requirement has attributes of a causation require-

ment. And if the proposed accommodation provides no direct

amelioration of a disability’s effect, it cannot be said to be

(continued...)

22 No. 04-1966

3. Title II of the Americans with Disabilities Act

The ADA was built on the Rehabilitation Act and the

FHAA, but extends the reach of those laws substantially.

Invoking “the sweep of congressional authority, includ-

ing the power to enforce the fourteenth amendment and

to regulate commerce,” the ADA was designed “to pro-

vide a clear and comprehensive national mandate for the

elimination of discrimination against individuals with

disabilities.” 42 U.S.C. § 12101(b)(1), (b)(4). It forbids

discrimination against persons with disabilities in three

major areas of public life: (1) employment, which is covered

by Title I of the statute, id. § 12111-12117; (2) public services,

programs and activities, which are the subjects of Title II, id.

§ 12131-12165; and (3) public and private lodging, which is

covered by Title III, id. § 12181-12189. See generally, Tennessee

v. Lane, 541 U.S. 509, 516-17 (2004).

This case concerns Title II, commonly referred to as the

public services portion of the ADA. Title II provides that

“no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities of

a public entity.” 42 U.S.C. § 12132.

As courts have held, municipal zoning qualifies as a

public “program” or “service,” as those terms are employed

in the ADA, and the enforcement of those rules is an

5

(...continued)

‘necessary.’ ” (emphasis in original)); Smith & Lee Assocs., Inc. v.

City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996) (concluding that,

to satisfy the “necessary” element of a FHAA accommodation

claim, the “[p]laintiffs must show that, but for the accommoda-

tion, they likely will be denied an equal opportunity to enjoy the

housing of their choice”).

No. 04-1966 23

“activity” of a local government.6 Section 12131(2) goes on

to define “qualified individual with a disability” as

an individual with a disability who, with or without

reasonable modifications to rules, policies, or practices, the

removal of architectural, communication, or transporta-

tion barriers, or the provision of auxiliary aids and

services, meets the essential eligibility requirements for

the receipt of services or the participation in programs

or activities provided by a public entity.

(emphasis added).7

Unlike Title I and Title III, Title II of the ADA does not

contain a specific accommodation requirement.8 Instead, the

6

See, e.g., Bay Area Addiction Research v. City of Antioch, 179 F.3d

725, 730-32 (9th Cir. 1999) (applying Title II to a city’s zoning

requirements); Innovative Health Sys., Inc. v. City of White Plains,

117 F.3d 37, 48-49 (2d Cir. 1997) (same).

7

In the opening provisions of the ADA, Congress made the

following finding, applicable to the statute in all parts:

individuals with disabilities continually encounter various

forms of discrimination, including outright intentional

exclusion, the discriminatory effects of architectural, trans-

portation, and communication barriers, overprotective rules

and policies, [and] failure to make modifications to existing

facilities and practices . . . .

42 U.S.C. § 12101(a)(5) (emphasis added).

8

Title I provides that an employer unlawfully discriminates

by “not making reasonable accommodations to the known

physical or mental limitations of an otherwise qualified individ-

ual with a disability.” 42 U.S.C. § 12112(b)(5)(A). Similarly, Title

III’s definition of discrimination includes “a failure to make

(continued...)

24 No. 04-1966

Attorney General, at the instruction of Congress,9 has issued

an implementing regulation that outlines the duty of a

public entity to accommodate reasonably the needs of the

disabled. The Title II regulation reads:

A public entity shall make reasonable modifications

in policies, practices, or procedures when the modifica-

tions are necessary to avoid discrimination on the basis

of disability, unless the public entity can demonstrate

that making the modifications would fundamentally

alter the nature of the service, program, or activity.

28 C.F.R. § 35.130(b)(7).10

Before proceeding with an assessment of the case before

8

(...continued)

reasonable modifications in policies, practices, or procedures,

when such modifications are necessary to afford such goods,

services, facilities, privileges, advantages, or accommodations

to individuals with disabilities.” Id. § 12182(b)(2)(A)(ii).

9

See 42 U.S.C. § 12134(a) (“[T]he Attorney General shall promul-

gate regulations in an accessible format that implement this

part.”). The Attorney General’s regulations, Congress further

directed, “shall be consistent with this chapter and with the

coordination regulations . . . applicable to recipients of Federal

financial assistance under [§ 504 of the Rehabilitation Act].” Id. §

12134(b).

10

The Supreme Court never has decided whether these reg-

ulations are entitled to the degree of deference described in

Chevron, U.S.A. Inc. v. National Resource Defense Council, Inc., 467

U.S. 837, 844 (1984). Nevertheless, the Court has said that,

“[b]ecause the Department of Justice is the agency directed by

Congress to issue regulations implementing Title II . . . its views

warrant respect.” Olmstead v. L.C., 527 U.S. 581, 597-98 (1998)

(internal citations omitted).

No. 04-1966 25

us, we pause for a closer examination of the regulation

promulgated under the ADA because the text of this

regulation gives us several important guideposts for the

resolution of this case. First, as our cases already hold,

failure to accommodate is an independent basis for liability

under the ADA. Second, the plain language of the regula-

tion also makes clear that an accommodation only is

required when necessary to avoid discrimination on the basis

of a disability. Third, the regulation states, in its plain

language, that any accommodation must be a reasonable one.

We shall now examine each of these features of the regula-

tion, keeping in mind that Congress has expressed its desire

that interpretation of the ADA be compatible with interpre-

tation of the other federal disability statutes, a point also

made clear in several holdings of the Supreme Court.11

Under the Title II regulation, a modification must be

“necessary to avoid discrimination on the basis of disabil-

ity.” Id. In this way, the regulation differs slightly from the

accommodation regulation promulgated under the Rehabili-

tation Act, which does not contain any express language

regarding necessity. See id. § 41.53. However, as we

noted earlier, Choate seems to read the Rehabilitation Act

as containing a necessity requirement.

Similarly, there is a minor difference between the Title II

regulation and the FHAA’s accommodation provision.

Although the FHAA’s accommodation provision does

contain an express necessity requirement, the text is differ-

ent from the ADA regulation. The FHAA version reads

11

See, e.g., Bragdon, 524 U.S. at 631-32 (stating that courts are

required to “construe the ADA to grant at least as much protec-

tion as provided by the regulations implementing the Rehabilita-

tion Act”).

26 No. 04-1966

“necessary to afford . . . equal opportunity,” 42 U.S.C. §

3604(f)(3)(B); by contrast, the ADA version reads “necessary

to avoid discrimination on the basis of disability,” 28 C.F.R.

§ 35.130(b)(7). Nevertheless, as we have interpreted it, the

Title II regulation, like the FHAA provision, links necessity

to a causation inquiry. In the context of the FHAA, we have

enforced this limitation by asking whether the rule in

question, if left unmodified, hurts “handicapped people by

reason of their handicap, rather than . . . by virtue of what they

have in common with other people, such as a limited

amount of money to spend on housing.” See Hemisphere

Bldg. Co., 171 F.3d at 440 (emphasis in original). Similarly,

under our Title II case law, the “on the basis of” language

requires the plaintiff to show that, “but for” his disability,

he would have been able to access the services or benefits

desired. See Washington v. Indiana High Sch. Athletic Assoc.,

181 F.3d 840, 849 (7th Cir. 1999) (requiring a high school to

modify its rule prohibiting “red-shirting” for a student

whose learning disability required him to miss a year of

school). Moreover, Title II’s necessity component mirrors the

judicial gloss afforded to the Rehabilitation Act in Choate. As

in Choate, a plaintiff invoking Title II’s modification require-

ment must show that his disability is what causes his

deprivation of the services or benefits desired. In short, each

of these provisions requires the plaintiff to satisfy the

“necessary” element by showing that the reason for his

deprivation is his disability.

The regulation also requires that any accommodation be

a reasonable one. In the context of the FHAA, we have

interpreted this requirement to mandate an inquiry into

whether the accommodation is “both efficacious and

proportional to the costs to implement it.” Oconomowoc

Residential Programs, 300 F.3d at 784. In the zoning context,

a municipality may show that a modification to its policy is

No. 04-1966 27

“unreasonable if it is so at odds with the purpose behind the

rule that it would be a fundamental and unreason-

able change.” Id. (internal quotation marks and citations

omitted). This assessment is “a highly fact-specific in-

quiry and requires balancing the needs of both parties.” Id.

In this regard, we think it is important to note that, in

undertaking this highly fact-specific assessment, it is

necessary that the court take into consideration all of the

costs to both parties. Some of these costs may be objective

and easily ascertainable. Others may be more subjective and

require that the court demonstrate a good deal of wisdom in

appreciating the intangible but very real human costs

associated with the disability in question. On the other side

of the equation, some governmental costs associated with

the specific program at issue may be a matter of simply

looking at a balance sheet. Others, however, may be those

intangible values of community life that are very important

if that community is to thrive and is to address the needs of

its citizenry.12

12

Contrary to the assertions of the City, see Appellant’s Br. at 40-

42 (quoting Bryant Woods, Inc. v. Howard County, Maryland, 124

F.3d 597, 603 (4th Cir. 1997)), we do not believe that, in conduct-

ing this reasonableness inquiry, the district court owes special

deference to the City’s zoning ordinance. The House Report

accompanying the FHAA noted specifically that “[t]he Commit-

tee intends that the prohibition against those with handicaps

apply to zoning decisions and practices.” H.R. Rep. No. 100-711,

at 24 n.63 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2185.

Furthermore, the House had rejected an amendment to the FHAA

that “mandated” a showing of discriminatory “intent before a

zoning decision [could be] struck down.” See id. at 89 (additional

views of Representatives Swindall, Sensenbrenner, Shaw,

Dannemeyer, Coble and Slaughter). Because the ADA is founded

(continued...)

28 No. 04-1966

We pause to emphasize one other important feature of the

Title II regulation. We think that the regulation makes clear

that the duty to accommodate is an independent basis of

liability under the ADA. The language of the regula-

tion itself certainly supports this view. By requiring mea-

sures that are “necessary to avoid discrimination on the

basis of disability,” 28 C.F.R. § 35.130(b)(7), the regulation

clearly contemplates that prophylactic steps must be taken

to avoid discrimination. Indeed, we have taken this view in

our earlier cases, and other circuits also have favored this

interpretation. See McGary v. City of Portland, 386 F.3d 1259,

1266 (9th Cir. 2004) (“The district court’s suggestion that

McGary must allege that the City inconsistently enforced its

nuisance abatement policy misses the point of a reasonable

accommodation claim. Indeed, the crux of a reasonable

accommodation claim is a facially neutral requirement that

is consistently enforced.”); Henrietta D. v. Bloomberg, 331

F.3d 261, 276-77 (2d Cir. 2003) (“[A] claim of discrimination

based on a failure reasonably to accommodate is distinct

from a claim of discrimination based on disparate

impact.”).13

12

(...continued)

on the FHAA and is intended to expand upon rights guaranteed

by that act, see supra at 21-22, we believe that these statements

provide guidance with respect to the ADA, especially in the

absence of contrary statutory language or legislative history

specific to the ADA. The one-sentence dicta to the contrary in

Bryant Woods is, notably, unsupported by citation. See 124 F.3d at

603.

13

Similarly, in Olmstead, two mentally ill patients brought a

Title II action against a state hospital that refused to place them

in a community living environment. The Court rejected the state’s

argument that “discrimination” under Title II “necessarily

(continued...)

No. 04-1966 29

Under the law of this circuit, a plaintiff need not allege

either disparate treatment or disparate impact14 in order

to state a reasonable accommodation claim under Title II

of the ADA. See Washington, 181 F.3d at 846-48 (describ-

ing the showing of a failure to accommodate as an inde-

pendent method of proving discrimination under Title II);

cf. Good Shepherd Manor Found., 323 F.3d at 561-62 (holding

that “reasonable accommodation is a theory of liability

separate from intentional discrimination”). In sum, a Title II

claim under the ADA “may be established by evidence that

(1) the defendant intentionally acted on the basis of

the disability, (2) the defendant refused to provide a

reasonable modification, or (3) the defendant’s rule dis-

proportionally impacts disabled people.” Washington, 181

F.3d at 847. The district court resolved WCS’ claim employ-

ing the second approach, see Wisconsin Community Serv., 309

F. Supp. 2d at 1104, and our case law provides support for

13

(...continued)

requires uneven treatment of similarly situated individuals.” 527

U.S. at 598 (internal quotation marks omitted). “[S]atisfied that

Congress had a more comprehensive view of the concept of

discrimination advanced in the ADA,” id., the Court went on to

hold that the state hospital violated Title II and 28 C.F.R.

§ 35.130(b)(7) by failing to accommodate the plaintiffs’ request for

community living, id. at 607.

14

We understand the City to be using “disparate impact” to

signify the method of proof under anti-discrimination laws that

compares the treatment among otherwise similarly situated

individuals. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S.

977, 987 (1988) (“The evidence in these ‘disparate impact’ cases

usually focuses on statistical disparities, rather than specific

incidents, and on competing explanations for those disparities.”).

30 No. 04-1966

such a cause of action.15

B.

With the key legislative provisions in full view, we

turn now to the task of applying them to the case before us.

In essence, we must decide whether, and to what extent, the

Rehabilitation Act and Title II require the City to modify its

zoning practices in order to accommodate the needs of the

disabled individuals served by WCS.

WCS submits that the City must waive application of

its normal special-use criteria for WCS because it has shown

that granting the permit will ameliorate overcrowding, a

condition that particularly affects its disabled clients. Before

accepting this position, however, we must ask whether WCS

has satisfied the “necessity” element contained in the

Rehabilitation Act as interpreted by Choate and in the Title

II regulation, see 28 C.F.R. § 35.130(b)(7). WCS contends that

the necessity element is satisfied simply when a modifica-

tion helps the disabled, regardless of whether it is necessary

to alleviate discrimination. Implicit in this position is that

the federal accommodation obligation reaches not only rules

that create barriers “on the basis of” a person’s disability,

but also rules that are not disability-based and create

obstacles to persons because of some factor unrelated to

disability.

As we already have discussed, with respect to the Rehabil-

15

Because the district court resolved WCS’ ADA claim on a

reasonable accommodation basis, it did not have occasion to

reach WCS’ disparate impact or disparate treatment arguments.

We therefore do not address, nor do we offer any comment on,

the merits of those claims.

No. 04-1966 31

itation Act, Choate held that a modification is “necessary”

only when it allows the disabled to obtain benefits that they

ordinarily could not have by reason of their disabilities, and

not because of some quality that they share with the public

generally. See Choate, 469 U.S. at 302; cf. Hemisphere Bldg. Co.,

171 F.3d at 440 (asking whether the rule in question, if left

unmodified, hurts “handicapped people by reason of their

handicap, rather than . . . by virtue of what they have in

common with other people, such as a limited amount of

money to spend on housing” (emphasis in original)). The

inquiry is the same under the ADA regulation, which asks

whether a modification is “necessary to avoid discrimina-

tion on the basis of disability.” 28 C.F.R. § 35.130(b)(7).

Framed by our cases as a causation inquiry, the element is

satisfied only when the plaintiff shows that, “but for” his

disability, he would have been able to access the services or

benefits desired. See Washington, 181 F.3d at 849.

On the present record, WCS’ inability to meet the

City’s special use criteria appears due not to its client’s

disabilities but to its plan to open a non-profit health clinic

in a location where the City desired a commercial, taxpaying

tenant instead. As far as this record indicates, the

City would have rejected similar proposals from non-

profit health clinics serving the non-disabled. WCS contends

that Title II’s accommodation requirement calls, in such a

situation, for “ ‘preferential’ treatment and ‘is not limited

only to lowering barriers created by the disability itself.’ ”

Appellee’s Br. at 30 n.5 (quoting Giebeler, 343 F.3d at 1154).

WCS’ view, however, is inconsistent with the “necessity”

element as it has been defined under the Rehabilitation Act,

the FHAA and Title II of the ADA. On this record, because

the mental illness of WCS’ patients is not the cause-in-fact

of WCS’ inability to obtain a suitable facility, the program

that it seeks modified does not hurt persons with disabilities

32 No. 04-1966

“by reason of their handicap.” Hemisphere Bldg. Co., 171 F.3d at

440 (emphasis in original).

WCS responds that the Supreme Court’s decision in

US Airways, Inc. v. Barnett, 535 U.S. 391 (2001), has overruled

the principle, central to previous Title II accommodation

decisions, that the proposed modification must be necessary

to avoid discrimination on the basis of a disability. In

Barnett, a case decided under Title I of the ADA, a US

Airways baggage handler injured his back and requested

transfer to a mailroom position that recently had become

available. US Airways refused because, under its seniority

policy, the company was required to award the position to

a more senior employee. Recognizing that US Airways’

seniority policy must yield, under certain circumstances, to

the needs created by the plaintiff’s disability, the Supreme

Court held that the plaintiff should be permitted to rebut the

presumption that his requested modification to the neutral

seniority policy was unreasonable.

According to WCS’ characterization, in Barnett, the

seniority policy treated the disabled and non-disabled alike,

and it was a non-disability characteristic (seniority) that

denied Barnett the job. WCS sees no distinction between

Barnett and the present case: Just as the plaintiff in Barnett

was ineligible for the mail room position because of his

seniority rather than his disability, WCS was ineligible for

a special use permit because it was a non-profit health clinic,

not because its clients were disabled. Because the Supreme

Court allowed Barnett’s claim to go forward, albeit with a

heightened burden of persuasion, WCS submits that it has

satisfied the necessity element of its accommodation claim.

We cannot accept this argument. Barnett and the present

case simply deal with different analytical problems. Fairly

read, Barnett did not deal with the issue of necessity-causal-

No. 04-1966 33

ity, which was addressed in the cases we discussed earlier.

Rather, it dealt with the second question that courts must

confront in Title II accommodation cases: whether the

accommodation was reasonable. Yet, this element cannot be

reached until it has been determined that an accommoda-

tion is necessary because a person’s disability is the cause

for his being denied the service or benefit. As we explained

earlier, to satisfy Title II’s necessity element, a plaintiff must

show that, “but for” its disability, it would have received

the ultimate benefit being sought—which, in WCS’ case, is

a larger facility. Washington, 181 F.3d at 849. The same is

true under the Rehabilitation Act. See Choate, 469 U.S. at 302.

If the City’s zoning rules are to be compared to the seniority

policy in Barnett, WCS must demonstrate that, because of its

clients’ disabilities, it cannot relocate to a suitable site. Only

then will the unmodified policy hurt the disabled on account

of their disability. Only then will the modification be

“necessary to avoid discrimination on the basis of disabil-

ity.” 28 C.F.R. § 35.130(b)(7).

The district court assumed that the proposed modification

could be deemed “necessary” even if the disabilities suf-

fered by WCS’ patients were not the cause-in-fact of its

inability to find a larger building. The district court failed to

apply a “but for” causation standard in determining the

necessity element of WCS’ accommodation claim. Choosing

this course was error in light of the prevailing standards

under our case law. We therefore must remand to the

district court so that it may afford the parties the opportu-

nity to develop the question of whether WCS has been

prevented, because of its clients’ disabilities, from locating

34 No. 04-1966

a satisfactory new facility.16

Conclusion

For the foregoing reasons, we reverse the judgment of

the district court and remand for proceedings consistent

with this opinion. The City may recover its costs in this

court.

REVERSED and REMANDED

EASTERBROOK, Circuit Judge, concurring. One question

on which the parties have disagreed is whether 28 C.F.R.

§35.130(b)(7), which was promulgated under Title II of

the Americans with Disabilities Act, establishes an ac-

commodation requirement in addition to the statutory rules

16

Because we have determined that the district court erred

in determining whether the accommodation was “necessary,” we

need not reach the question of whether its determination that the

accommodation was “reasonable” was error.

Also, as noted above, see supra note 15, because the district

court resolved WCS’ claim on the failure of the City to offer a

reasonable accommodation, the court did not address WCS’

alternative theories of disparate impact and disparate treatment.

The district court is free to consider those claims on remand

should WCS ultimately fail with respect to its reasonable

accommodation claim.

No. 04-1966 35

that prohibit disparate treatment and limit disparate impact.

The district judge said “yes,” the panel said “no,” and now

the en banc court says “yes.” Having written the panel’s

opinion saying “no,” see 413 F.3d 642, 646-47 (7th Cir. 2005),

I now join the en banc opinion saying “yes,” because further

consideration has led me to conclude that the right question

is what this regulation means rather than what label to

attach to its provisions.

The regulation provides:

A public entity shall make reasonable modifications

in policies, practices, or procedures when the modi-

fications are necessary to avoid discrimination on the

basis of disability, unless the public entity can demon-

strate that making the modifications would fundamen-

tally alter the nature of the service, program, or activity.

A proposed accommodation is required only if it is “neces-

sary” to “avoid discrimination”. That an alteration in zoning

rules would be convenient or helpful to a plaintiff does not

make the change “necessary.” Moreover, “discrimination”

exists only if the zoning regulation (or other rule at issue)

hurts “handicapped people by reason of their handicap, rather

than . . . by virtue of what they have in common with other

people, such as a limited amount of money to spend” (slip

op. at 18, 21, 26-27 & 32, all quoting from Hemisphere

Building Co. v. Richton Park, 171 F.3d 437, 440 (7th Cir. 1999)

(emphasis in original)). That was the panel’s view as well.

413 F.3d at 646.

In a brief amicus curiae filed at the court’s request, the Civil

Rights Division of the Department of Justice told us that this

regulation creates an accommodation requirement distinct

in the sense that disparate impact may be established by

case-specific as well as statistical evidence. In employment-

36 No. 04-1966

discrimination litigation under Title VII of the Civil Rights

Act of 1964 or the Age Discrimination in Employment Act,

a “disparate impact” means a statistically significant

adverse effect of a rule that is neutral in its terms. There is

no good reason, however, why a regulation may not take a

different approach to disparate-impact theories in disability-

discrimination cases, where the circumstances of the

affected persons may be so different—and the number of

zoning or housing-code rules so numerous—that statistical

analysis would be impractical. Title II does not specify a

regimen for disparate-impact analysis, which means that a

regulation requiring local zoning rules to yield when

“necessary” to avoid applicant-specific disparate impacts

that occur by reason of disability is a reasonable way to

implement the statute. So I accept the Civil Rights Division’s

reading of this regulation, and I understand the court’s

opinion to do so too.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-26-06