MAY 12 1994 The Honorable William V. Roth, Jr.

United States Senator 12 The Circle Georgetown, Delaware 19947-1502 Dear Senator Roth: This letter is in response to your inquiry on behalf of your constituent, Steven D. Beaston, Town Manager of the Town of South Bethany, who seeks information about the application of the Americans With Disabilities Act (ADA) to local zoning enforcement activities. We have no record of having received Mr. Beaston's letter. All state and local governmental entities and instrumentalities are public entities within the meaning of title II of the ADA, which 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, or be subjected to discrimination by any such entity." See 42 U.S.C. 12132. By this language, Title II prohibits local governments from discriminating on the basis of disability in all actions they take, including zoning enforcement activities. There is nothing in title II or the implementing regulation that prescribes a particular type of zoning scheme. Set-back requirements are not prohibited. However, title II requires public entities, including zoning authorities, to make reasonable modifications to their policies, practices, or procedures, if such modifications are necessary to avoid discrimination against individuals with disabilities. 28 C.F.R. 35.130(b)(7). For example, if a zoning ordinance requires a certain set-back between a business entrance and a curb, but the business must encroach on the set-back to ramp its entrance, the zoning authority may be required to issue a variance as a reasonable modification to that ordinance. See example in Title II Technical Assistance Manual, Part II-3.6100, Illustration 1. Thus, the zoning procedures must allow for some process whereby requests for exemptions or special permits for such purposes may be considered. Such requests must be granted where reasonable.

cc: Records, chrono, Wodatch, McDowney, Magagna, Novich, FOIA MAF Udd:Novich:Congress:Roth 01-03070

-2Your constituent should also be aware of the other prohibitions and regulations in the title II regulation, which may apply to his town's zoning activities. See 28 C.F.R. pt 35. Copies of the title II regulation and title II Technical Assistance manual are enclosed I hope this information is useful to your constituent. Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosures 01-03071

March 7, 1994 The Honorable William V. Roth, Jr. Senator, United States Congress 12 The Circle Georgetown, DE 19947 Dear Senator Roth: We have attempted to obtain some information on the American's with Disabilities Act. As you can see by the letter attached, I spoke with the Department of Justice, and

they informed me that they do have the information we requested. We have not received a written reply to our letter as of this date with this information. We need to put it into our Zoning Ordinance, which we are presently updating. We would appreciate any assistance you could provide in either obtaining a response to our letter or providing the information we need as indicated in the letter. Thank you for your attention in the matter. Sincerely TOWN OF BETHANY

Steven D. Beaston Town Manager

SDB/tlb Attachment 01-03072

January 12, 1994 Mr. John Wodatch, Chief Public Access Section Civil Rights Division U.S. Department of Justice P.O. Box 66378 Washington, DC 20035 Dear Mr. Wodatch: The Town of South Bethany is in the process of revising it's zoning ordinance. We want to assure adequate provision for handicap access. We are particularly concerned with making provisions in setback requirements that meet requirements of the Americans with Disabilities Act but still permit us some control. I spoke on the phone with Ms. Lucille Johanson of your staff, and she was very helpful. She cited a case where a ramp had to be permitted even thought it encroached into a required setback. I would appreciate this and other information I could use in ensuring our zoning ordinance meets ADA requirements. Sincerely yours, TOWN OF BETHANY Steven D. Beaston Town Manager SDB/tlb