HEANEY, Senior Circuit Judge:
In December 1992, plaintiff-appellee Innovative Health Systems, Inc. ("IHS"), an outpatient drug- and alcohol-rehabilitation treatment center, began efforts to relocate to a building in downtown White Plains. After over a year of seeking permission from the city, IHS was ultimately denied the necessary building permit by the White Plains Zoning Board of Appeals ("ZBA"). On November 14, 1995, plaintiffs-appellees, IHS and five individual clients, initiated this action against the City of White Plains; Mayor S.J. Schulmann; the ZBA; Chair of the ZBA, Terrence Guerrier; the White Plains Planning Board; and Chair of the Planning Board, Mary Cavallero, (collectively, "the City"), alleging that the ZBA's zoning decision violated both Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165 (1994), and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994). The plaintiffs-appellees moved for a preliminary injunction to prevent the City from interfering with IHS's occupation of the new site. The City cross-moved to dismiss the complaint. In a detailed and thorough opinion, the United States District Court for the Southern District of New York (Barrington D. Parker, Jr., Judge) granted the preliminary injunction and denied the motion to dismiss, except with respect to Mayor Schulmann. Innovative Health Sys. v. City of White Plains, 931 F.Supp. 222 (S.D.N.Y. 1996). The remaining defendants appeal. We affirm except with respect to one individual client, Martin A.
In 1992, Dr. Ross Fishman, Executive Director of IHS, decided that the program should move from its current facility to a building located in downtown White Plains. The new site was more than five times as large as the current site and was closer to a bus line and to other service providers that IHS clients frequently visit. Dr. Fishman planned to expand the services offered by IHS at the new site to include a program for children of chemically dependent persons. Therefore, IHS predicted an increase in the number of clients it would serve.
In December 1992, the Deputy Commissioner of Building for the City of White Plains informed IHS that its proposed use of the downtown site — counseling offices with no physicians on staff for physical examinations or dispensing of medication — qualified as a business or professional office under White Plains' zoning ordinance and thus
The application provoked tremendous opposition from the surrounding community, including Cameo House Owners, Inc. ("Cameo House"), a co-operative association representing resident-owners who lived in the remainder of the downtown building in which IHS sought to relocate, and Fashion Mall Partners, L.P. ("Fashion Mall"), the owner of a shopping mall located near the proposed IHS site. The Planning Board held two public meetings on the proposed use at which the opponents expressed their concern about the condition and appearance of people who attend alcohol- and drug-dependence treatment programs and the effect such a program would have on property values. Opponents also argued that the proposed use constituted a "clinic" and that, therefore, under the zoning ordinance, the use was a "hospital or sanitarium," an impermissible use in the zoning district. In response to this argument, at the Planning Board's request, the Commissioner reconsidered and reaffirmed his previous determination that the proposed site constituted permitted "office" use.
Because continued opposition caused delay and additional costs, IHS withdrew its application from the Planning Board. It instead applied to the Commissioner for a permit to renovate the former retail section of the downtown site, which did not involve a change of use or the Planning Board's approval. Again, however, the application was vehemently opposed by members of the surrounding community.
To resolve the dispute, the Commissioner sought review of his decision by the White Plains Corporation Counsel. In his written opinion, the Corporation Counsel stated that, absent compelling authority to the contrary, the Commissioner's decision should stand. The Corporation Counsel considered the opponents' argument under the zoning ordinance and concluded that the Commissioner's interpretation was correct.
Cameo House and Fashion Mall immediately appealed the Commissioner's decision to the ZBA, requesting an interpretation of the zoning ordinance that an alcohol-treatment facility is not permitted in the relevant zoning district. The ZBA conducted a two-day public hearing on the matter, at which community members continued to voice strong opposition to having a drug- and alcohol-dependency treatment center in the downtown location. They again focused largely on fears of jeopardized safety and falling property values.
On July 5, 1995, the ZBA voted four-to-one to reverse the Commissioner's decision. The Board did not issue a written resolution, as required by the zoning ordinance,
IHS and five individual clients initiated this action against the City, alleging that the revocation of the building permit constituted discrimination and differential treatment based on a disability as against both the individual clients and the program that assisted them. They also claimed that even if the zoning decision was not discriminatory, the City should have permitted the relocation as a reasonable accommodation. In February 1996, they moved for a preliminary injunction against the City to prevent it from interfering with the occupation of the downtown site.
The City opposed the motion and moved for dismissal, arguing: (1) zoning decisions do not fall within the scope of the ADA or the Rehabilitation Act, (2) the appellees lack standing under the ADA, (3) the federal statutes do not accord preferential treatment to persons with disabilities, and (4) neither IHS nor the individual clients have demonstrated irreparable harm or a likelihood of success on the merits. The district court granted the preliminary injunction and denied the motion to dismiss, except as against the Mayor. The City now appeals, raising essentially the same arguments.
II. Preliminary Injunction
We have jurisdiction to consider an appeal from the grant of a preliminary injunction as an appeal as of right under 28 U.S.C. § 1292(a). The district court found, as is required for the grant of a preliminary injunction, that the appellees demonstrated that they would suffer irreparable harm absent the injunction and that they are likely to succeed on the merits of their discrimination claim.
As an initial matter, the City argues that the district court should have reviewed the evidence under the heightened standard for mandatory injunctions that requires a clear showing of entitlement to the relief sought or demonstration that extreme or serious damage would result absent the relief.
As this circuit has recognized, the distinction between mandatory and prohibitory injunctions is often "more semantical than substantive." Abdul Wali, 754 F.2d at 1025; see also Eng v. Smith, 849 F.2d 80, 82 (2d Cir. 1988) ("[T]he doctrine that preliminary injunctions should be disfavored when they disturb the status quo has been subject to academic and judicial criticism.") (citing Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2948 (1973)). In light of this recognition, we do not believe that the district court erred in treating this preliminary injunction as prohibitory.
A. Irreparable Harm
In determining whether the appellees demonstrated irreparable harm absent injunctive relief, the district court relied heavily on the affidavits of Dr. Fishman and Maria B., a current IHS client. Dr. Fishman testified that clients have dropped out or missed critical therapy sessions because of the size and location of the current site and that the new space would permit IHS to better serve its current clients and to expand its services. He emphasized the great need for treatment programs generally, and specifically in White Plains, where a program at the county jail had recently been closed. Based on his experience, Dr. Fishman predicted that without treatment, IHS's current and potential clients are likely to continue to abuse alcohol and drugs, resulting in death, illness, or disability.
Maria B. testified that she has benefitted greatly from the services at IHS and that if IHS cannot move to the new site, she will most likely be unable to continue participating in her counseling sessions because of the poor public transportation to the current site. She also stated that she hoped to attend vocational training classes as part of her recovery but will not be able to do so unless IHS moves to the larger site and expands its services. Moreover, she stated that she fears that she will face a serious risk of relapse if she is forced to end her connection with IHS.
Moreover, although a significant delay in seeking injunctive relief can be indicative of a reduced need, Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir.1985), the six-month delay between the ZBA decision and the appellees' motion does not negate their demonstration of harm. The delay was, in part, due to the ZBA's failure to send IHS a written decision and to the appellees' initial attempts to resolve the matter without litigation. Thus, we agree with the district court that the appellees have demonstrated that they would suffer irreparable harm, absent injunctive relief.
B. Likelihood of Success on the Merits
The City also challenges the district court's determination that the appellees have demonstrated a likelihood of success on the merits, arguing primarily: (1) neither the ADA nor the Rehabilitation Act covers zoning decisions, (2) the appellees lack standing under both the ADA and the Rehabilitation Act, and (3) appellees have not stated a claim under either statute. We address each argument in turn.
1. Application of Discrimination Statutes to Zoning
Both Title II of the ADA and section 508 of the Rehabilitation Act prohibit discrimination based on a disability by a public entity. The ADA provides:
42 U.S.C. § 12132 (1994). The Rehabilitation Act contains the following similar prohibition:
29 U.S.C. § 794(a) (1994). It is undisputed that both anti-discrimination provisions govern the City. What the City contests is the application of either statute to its zoning decisions because it contends that zoning does not constitute a "service, program, or activity." We disagree.
The ADA does not explicitly define "services, programs, or activities." Section 508 of the Rehabilitation Act, however, defines "program or activity" as "all of the operations" of specific entities, including "a department, agency, special purpose district, or other instrumentality of a State or of a local government." 29 U.S.C. § 794(b)(1)(A) (1994). Further, as the district court recognized, the plain meaning of "activity" is a "natural or normal function or operation." Innovative Health Sys., 931 F.Supp. at 232 (quoting Webster's Third New International Dictionary (1993)). Thus, as the district court held, both the ADA and the Rehabilitation Act clearly encompass zoning decisions by the City because making such decisions is a normal function of a governmental entity. Id. Moreover, as the district court also noted, the language of Title II's anti-discrimination
In its analysis, the district court also looked to the ADA's legislative history and the Department of Justice's regulations and Technical Assistance Manual, all of which support the court's interpretation of the plain language of the statute. With respect to Title II of the ADA, the House Committee on Education and Labor stated:
H.R.Rep. No. 101-485(II), at 84, 151 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367, 434 (emphasis added). As the preamble to the Department of Justice regulations explains, "[T]itle II applies to anything a public entity does.... All governmental activities of public entities are covered." 28 C.F.R. pt. 35, app. A at 456 (1996). The Department of Justice's Technical Assistance Manual, which interprets its regulations, specifically refers to zoning as an example of a public entity's obligation to modify its policies, practices, and procedures to avoid discrimination.
Although it gives lip service to the importance of looking to the statutory language to glean legislative intent, the City does not point to specific language in either statute to explain the exemption it seeks to create for zoning decisions.
The City also challenges IHS's standing to sue under either the ADA or the Rehabilitation Act.
At first blush, this argument has appeal. The City appropriately looks to the statutory language to determine whether Congress granted an express right of action to persons who otherwise would be barred by prudential standing rules. See Warth, 422 U.S. at 501, 95 S.Ct. at 2206 (as long as constitutional requirements met, Congress may grant standing to seek relief on the basis of the legal rights and interests of
Looking to the enforcement provisions of each statute, we agree with the district court that IHS has standing under both Title II of the ADA and the Rehabilitation Act. Title II's enforcement provision extends relief to "any person alleging discrimination on the basis of disability." 42 U.S.C. § 12133 (1994). Similarly, the Rehabilitation Act extends its remedies to "any person aggrieved" by the discrimination of a person on the basis of his or her disability. 29 U.S.C. § 794a(a)(2). As the district court noted, the use of such broad language in the enforcement provisions of the statutes "evinces a congressional intention to define standing to bring a private action under 504 [and Title II] as broadly as is permitted by Article III of the Constitution." See Innovative Health Sys., 931 F.Supp. at 237 (quoting Nodleman v. Aero Mexico, 528 F.Supp. 475, 485 (D.C.Cal.1981) (citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 366-67, 34 L.Ed.2d 415 (1972))).
With respect to Title II, the City further argues that we should respect the different language Congress chose to employ in Titles I and III, which define discrimination to include conduct directed at an entity based on its relationship or association with disabled persons. See 42 U.S.C. § 12112(b)(4) (Title I); 42 U.S.C. § 12182(b)(1)(E) (Title III). According to the City, because Title II does not contain similar language, Congress intended to prevent standing based on association under this section. Although courts generally should be reluctant to conclude that the omission of language in one part of a statute that is included in another is unintentional, see e.g., City of Chicago v. Environmental Defense Fund, 511 U.S. 328, 337-38, 114 S.Ct. 1588, 1593, 128 L.Ed.2d 302 (1994), there is extensive support in this instance to read the specific examples of discrimination from the other two titles into Title II.
As a starting point, Title II sets out only a general definition of discrimination. By listing specific examples of discriminatory behavior in the other two titles, Congress surely did not intend to excuse similar discriminatory conduct by a public entity simply because such conduct is not spelled out in Title II. This common-sense interpretation of Title II is confirmed by the legislative history. The House Committee on Education and Labor indicated that Title II's prohibitions are to be "identical to those set out in the applicable provisions of titles I and III of this legislation." H.R.Rep. No. 101-485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367. More specifically, the House Report on the ADA states that the prohibitions of discrimination on the basis of association from Titles I and III should be incorporated in the regulations implementing Title II. Id.; H.R.Rep. No. 485(III), at 51 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 474; see also Kinney v. Yerusalim, 9 F.3d 1067, 1073 n. 6 (3d Cir. 1993) (legislative history indicates that Titles II and III are to be read consistently).
As directed by the House Report, the regulations implementing Title II provide:
28 C.F.R. § 35.130(g).
In any event, because we have already determined that Title II provides relief to "any person alleging discrimination," it is irrelevant whether Title II directly proscribes discrimination based on association with disabled persons. Accordingly, we affirm the district court's determination that IHS has standing to assert a claim under both the ADA and the Rehabilitation Act.
3. Appellees' Discrimination Claims
Assuming that the discrimination statutes apply to zoning decisions and that the appellees have standing, the City contends that the district court erred in concluding the appellees will likely be successful on the merits of their discrimination claims. The City argues that the appellees' claims will fail because (1) IHS's clients are not "qualified individuals with a disability" because they are not drug-free, (2) the appellees were not denied the benefits of the City's zoning activity, and (3) the City's zoning decision was not based on bias against chemically-dependent persons. We address each argument in turn.
The City claims that IHS has admitted that some of its clients are not drug-free and that therefore, under either statute the clients are excluded from the definition of "qualified individuals with a disability." See 42 U.S.C. § 12210(a) (term "does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use"); 29 U.S.C. § 706(8)(C)(i) (same). Although, we are not convinced that IHS has admitted that its clients are not drug-free,
The City also argues that the appellees have not been denied the benefits of the City's zoning activity because they were able to participate in every step of the process: They were given full consideration by the Commissioner, the Corporation Counsel, the Planning Board, and the ZBA. In so arguing, the City has misconstrued the nature of the appellees' complaint. The appellees' claim is not premised on the denial of the right to participate in the zoning approval process.
The City additionally contends that the appellees have not produced any evidence of the City's discriminatory motives in denying the building permit to IHS. There is little evidence in the record to support the ZBA's decision on any ground other than the need to alleviate the intense political pressure from the surrounding community brought on by the prospect of drug- and alcohol-addicted neighbors. The public hearings and submitted letters were replete with discriminatory comments about drug- and alcohol-dependent persons based on stereotypes and general, unsupported fears. See supra notes 1, 3. Although the City certainly may consider legitimate safety concerns in its zoning decisions, it may not base its decisions on the perceived harm from such stereotypes and generalized fears. As the district court found, a decision made in the context of strong, discriminatory opposition becomes tainted with discriminatory intent even if the decisionmakers personally have no strong views on the matter. Innovative Health Sys., 931 F.Supp. at 243 (quoting Association of Relatives & Friends of AIDS Patients v. Regulations & Permits Admin., 740 F.Supp. 95, 104 (D.P.R.1990)); see also Support Ministries for Persons with AIDS, Inc. v. Village of Waterford, N.Y., 808 F.Supp. 120, 134 (N.D.N.Y.1992) (zoning officials who "bowed to political pressure" by those with animus against people with alcohol- and drug-related disabilities violated Fair Housing Act).
We also find the ZBA's decision to be highly suspect in light of the requirements set forth in the zoning ordinance. The Commissioner and the Corporation Counsel carefully reviewed IHS's application and gave detailed explanations for their approval. The Corporation Counsel analyzed the definition of "hospital or sanitaria" and concluded that because IHS was not an "institution for the purpose of serving general medical, surgical, psychiatric, physical therapy and rehabilitation purposes," it did not fall under this classification. The ZBA, on the other hand, simply stated, without explanation, that IHS was a clinic and thus an impermissible use in the downtown site. The ZBA ignored the requirements of the "hospital or sanitaria" classification and did not explain why it declined to follow the Corporation Counsel's straightforward analysis. Further, although made aware of other similar uses in the same district, the ZBA did not explain the distinction between IHS's proposed use and the other mental health professionals and social workers who do not work exclusively with chemically-dependent persons. On appeal, the City states that the ZBA's decision was "amply supported by legal arguments" without setting forth any of the supposed "legal arguments" for our consideration. The lack of a credible justification for the zoning decision raises an additional inference that the decision was based on impermissible factors, namely the chemical-dependent status of IHS's clients. Accordingly, we see no reason to disturb the district court's finding of likelihood of success on the merits.
III. Motion to Dismiss
The district court's order partially denying the City's motion to dismiss is not a final decision under 28 U.S.C. § 1291 nor are we granted jurisdiction to hear an appeal from that order under any of the statutory exceptions, see 28 U.S.C. § 1292. The City urges us to exercise pendant jurisdiction over the order, however, because they argue that the issues involved are inextricably intertwined with the issues raised in the preliminary injunction motion. We see no reason to exercise such jurisdiction at this time and leave the progression of this case to the sound discretion of the district court.
Accordingly, we affirm the district court's grant of a preliminary injunction in favor of appellees, except with respect to Martin A., who lacks standing to pursue this claim.
(J.A. at 436-37.)
28 C.F.R. pt. 35, app. A at 470 (emphasis added). Expanding on the regulation, the Technical Assistance Manual also explains:
TA Manual § II-3.9000 at 7 (1993).