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.
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Your 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
01-03073