Letter 219

January 19, 1999

The Honorable Spencer Abraham

United States Senate

Washington, D.C. 20510-2203

Dear Senator Abraham:

I am responding to your letter on behalf of your constituent, xxxxx xxxxxx. Mr. xxxxxx wrote to you stating that a township rejected his application for a permit to build a house, where he would live and work. Mr. xxxxxx believes that the township's rejection of his application for a building permit is discriminatory and inquires whether the Americans with Disabilities Act (ADA) may exempt his home business from local zoning laws.

Title II of the ADA prohibits discrimination on the basis of disability in the programs, services, and activities of State and local government (i.e., public) 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. A public entity, however, does not have to take any action that it can demonstrate would result in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens.

While title II may require reasonable modification of discriminatory zoning ordinances and procedures, it does not provide a general 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. For example, a retail facility need not be allowed in a neighborhood that is zoned for purely residential use, even if that facility serves primarily persons with disabilities.

In the present circumstance, Mr. xxxxxx does not specifically state the basis for the Township's decision to deny his building permit. Mr. xxxxxx merely states that he applied for a building permit and that he disclosed to the building department that he employs his sister for about three months of the year and that the Township rejected his application. For the purpose of this analysis, we have inferred that the Township is enforcing a ban on the operation of a business in a residential neighborhood.

To establish discrimination under the ADA, Mr. xxxxxx must be able to prove either: 1) that the Township discriminated by denying him a building permit that would have been granted to a non-disabled person; or 2) that the Township failed to make a reasonable modification of its policies that was necessary to enable him to benefit from the Township's program. The key factor in the latter analysis is whether the policy modification is, in fact, necessary to accommodate Mr. xxxxxx's disability. For example, if Mr. xxxxxx cannot work outside of his home because of his disability and can only run his business with the assistance of an employee, then granting a variance from the residential zoning requirement may be a reasonable modification of the Township's policy. However, if Mr. xxxxxx merely chooses to operate his business from his home as a matter of personal preference, then he may be unable to assert an ADA claim successfully.

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 >

Updated August 6, 2015

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