U.S. Department of Justice Civil Rights Division Coordination and Review Section P.O. Box 66118 Washington, DC 20035-6118 MAR 14 1994 (STAMPED) XXX XXX XXX RE: Complaint Number X Dear Mr. X : This letter constitutes our Letter of Findings in response to your complaint filed with our office against the City of Xenia, Ohio (City) under title II of the Americans with Disabilities Act of 1990 (ADA). Title II of the ADA protects qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, and activities of a State or local government. Your complaint alleges that the City denied your application for rezoning of the property located at XX Street in Xenia, Ohio, and that this denial had the effect of discriminating against persons with disabilities whom your firm employs. You have stated that you own and operate XX XX, a consulting firm that provides land surveying, civil engineering, and land planning services. You have said that you employ five people, two of whom are people with disabilities (a person who is recovering from alcoholism and a person who has chronic depression). You also stated that, because your work force had become too large for the space you were then occupying, you purchased the property located at XX Street in Xenia, Ohio (property), in order to move your offices there. On June 4, 1992, the Xenia Planning Commission (Planning Commission) held a public hearing to consider four applications filed by residents of XX Street, two of which were withdrawn, to have their properties rezoned form R-lC, Single Family Residential, to R-4, Multifamily Residential, the most restrictive zoning that allows office use. After considerable testimony, most of which was presented by residents who opposed the rezoning on the basis of concern for the changes it might bring to the neighborhood, a statement in opposition by the City Planner, and testimony presented by you and by your attorney, the Planning Commission voted to recommend that the Xenia City 01-00169 -2- Commission (City Commission or Commission) deny the rezoning of the property. At this time, you had a contract to buy the property, but you did not own it. On July 9, 1992, by which time you had become the owner of the property, the Commission held a public hearing to consider the rezoning application. At that meeting, after considerable testimony from you, your attorney, and other interested persons, the application was approved and the ordinance to amend the zoning map was read for the first time. On July 23, 1992, at a public hearing that you have said was held without your knowledge or your attorney's knowledge, testimony was presented by residents who opposed the rezoning and the Commission voted to defeat the motion to pass the ordinance. Subsequent to this vote, you moved your offices into the property, and the City filed a Motion for Temporary Restraining order and Preliminary and Permanent Injunctive Relief in the Common Pleas Court of Greene County, Ohio, to prohibit you from using the property for the operation of your business. Section 35.130 of the Department of Justice's title II regulation provides that, "No qualified individual with a disability shall, on the basis of 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 public entity." The activities of the Planning Commission and City Commission are clearly covered by this prohibition. You have stated that you do not believe that the Commission is deliberately discriminating against persons with disabilities, and the evidence in the record supports this belief. However, you have stated also that you believe that the Commission's denial of the application for rezoning has the effect of denying the people with disabilities who work for your firm a place to perform their jobs. The minutes for the Planning Commission and City Commission meetings where the rezoning was considered all contain testimony that refers to two previous cases that involved a change of use for other property in the area of your property. The first, and most frequently mentioned was the case of The City of Xenia v. Robert Geist (no citation given) that was brought to prevent Mr. Geist from operating a duplex home in the predominantly single family residential area. The minutes of the Planning Commission show that the City successfully defended this case "in the Supreme Court." The second case is referred to in the Planning Commission minutes as "a 1985 case in which a petition was submitted to the City to rezone the area into R-0, Office 01-00170 -3- Residential District." This petition was withdrawn when the Planning Commission told the petitioner that the neighborhood was stable and that the City's position had not changed since the Geist case. The evidence shows that the City's decision to deny the rezoning application for your property has the same effect on your employees without disabilities as it does on your employees with disabilities. Further, the evidence shows that the City has an established policy of maintaining the area where your property is located as a predominantly single family area, and that this policy has the same effect on people without disabilities as it does on people with disabilities. The evidence shows that the City's decision to deny your rezoning application was made for reasons that are not discriminatory under the ADA. Therefore, we have determined that no violation of title II occurred. This letter contains our determination with respect to your allegations of discrimination in your administrative complaint. If you are dissatisfied with our determination, you may file a complaint presenting your allegations of discrimination in an appropriate United States District Court under title II of the ADA. Under the Freedom of Information Act, 5 U.S.C. 522, we may be required to release this letter and other correspondence and records related to the complaint in response to a request from a third party. Should we receive such a request, we will safeguard, to the extent permitted by law, release of information that could constitute an unwarranted invasion of your or other's privacy. You should be aware that no one may intimidate, threaten, or coerce anyone or engage in other discriminatory conduct against anyone because he or she has taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if the situation warrants. 01-00171 -4- If you have any questions regarding this letter, please contact Merle Morrow at (202) 514-3571. Sincerely, Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division cc: Mark J. Bonatelli 01-00172