U.S.

Department of Justice

Civil Rights Division

Coordination and Review Section

P.O. Box 66118

Washington, DC 20035-6118

MAR 14 1994 (STAMPED)

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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withdrawn, to have their properties rezoned form R-lC, Single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

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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

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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.

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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

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