                                In the
    United States Court of Appeals
                 For the Seventh Circuit
                            ____________

No. 04-1966
WISCONSIN COMMUNITY SERVICES, INC.
and WISCONSIN CORRECTIONAL
FOUNDATION, INCORPORATED,
                                                  Plaintiffs-Appellees,
                                   v.

CITY OF MILWAUKEE,
                                                Defendant-Appellant.
                            ____________
               Appeal from the United States District Court
                  for the Eastern District of Wisconsin.
                 No. 01 C 575—Lynn Adelman, Judge.
                            ____________
    REARGUED EN BANC JANUARY 18, 2006—DECIDED SEPTEMBER 26, 2006
                            ____________

 Before FLAUM, Chief Judge, and BAUER, POSNER,
EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, WOOD,
EVANS and WILLIAMS, Circuit Judges.Œ
  RIPPLE, Circuit Judge. Wisconsin Community Services
(“WCS”),1 a provider of treatment to mentally ill patients,
brought this action under Title II of the Americans with


Œ
  The Honorable Diane S. Sykes took no part in the consideration
or decision of this case.
1
  Wisconsin Community Services was formerly Wisconsin
Correctional Foundation. The name was changed while this
action was pending in the district court.
2                                                 No. 04-1966

Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, and
section 504 of the Rehabilitation Act of 1973, id. § 794. The
WCS sought an injunction ordering the City of Milwaukee
(“the City”) to issue a zoning permit that would allow it
to move its mental health clinic to an area of Milwaukee,
Wisconsin, where health clinics are permitted only on a
case-by-case basis. The district court granted partial sum-
mary judgment to WCS, concluding that the ADA and the
Rehabilitation Act obligated the City to accommodate the
disabilities of WCS’ patients by allowing WCS to move to its
desired location. For the reasons set forth in this opinion, we
reverse the judgment of the district court and remand for
proceedings consistent with this opinion.


                              I
                     BACKGROUND
A. Wisconsin Community Services
   WCS is a private, non-profit organization that provides a
variety of inpatient and outpatient services to indivi-
duals afflicted with severe mental illnesses.2 WCS pro-
vides patients, who cannot live alone without substan-
tial assistance, with psychiatric treatment, counseling, med-
ication monitoring, transportation and help in finding
housing and employment. A number of WCS’ patients have
a history of substance abuse, and a majority have had
previous run-ins with the criminal justice system; WCS
often accepts patient referrals from court-related agencies


2
  The parties have stipulated that these individuals are “dis-
abled” within the meaning of the ADA and the Rehabilitation
Act. R.45, Ex.E-1 at 8.
No. 04-1966                                                 3

such as the United States Probation Service. Although
WCS staff sometimes will treat patients in their homes, most
of WCS’ services are administered in a 7,500 square-foot
mental health clinic located at 2023 West Wisconsin Avenue
in the City of Milwaukee. Originally, WCS shared this
facility with other non-profit organizations, but, as its
clientele grew, WCS expanded to occupy the entire building.
In 1994, at the time of this initial expansion, WCS employed
twenty full-time employees and served 250 patients.
  By 1998, the staff at WCS’ 2023 West Wisconsin Avenue
facility had grown to approximately forty full-time employ-
ees serving approximately 400 patients. This increase in
clients, services and personnel had caused a shortage in
space available for employee parking, client treatment,
group therapy sessions and other services. Faced with the
shortage, WCS at first considered remodeling, but finally
concluded that such a project would be too costly and
would interfere with client care. WCS then began search-
ing for a new building. Despite having a limited budget,
WCS needed a facility that was located in a safe neighbor-
hood and had adequate floor space, parking and access to
public transit. After searching for three years, WCS was able
to find two buildings that met its criteria. Neither property,
unfortunately, was located in a neighborhood zoned for
health clinics. Both were in areas where health clinics are
permitted only as “special uses” that require issuance of a
permit by the Milwaukee zoning authorities.
  WCS previously had received this type of special use
permit for some of its other facilities. It therefore made an
offer of purchase for one of the properties, contingent on
obtaining the necessary special use permit from the Milwau-
kee zoning board. The seller of this property, concerned
about this contingency, declined to accept the offer. WCS
4                                                 No. 04-1966

then abandoned its efforts to purchase that property and
instead made a similar contingent offer on the other identi-
fied property. This facility was an 81,000 square-foot
building located about one mile from its current facility at
3716 West Wisconsin Avenue. The larger facility is located
in an area zoned as a “local business district.” Milwaukee,
Wis. Code § 295-703-1. According to the City Code’s “use
table,” health care clinics, except for nursing homes, are
deemed “special uses” for this zone. Id. § 295-603-1. Inciden-
tally, the same zone allows foster homes, shelter care
facilities, community living arrangements and animal
hospitals either as “permitted” or “limited” (no special
approval required) uses. Id. The seller accepted WCS’ offer.


B. The First Proceeding Before the Board of Zoning
   Appeals
   Milwaukee’s City Code defines “special use” as “[a] use
which is generally acceptable in a particular zoning dis-
trict but which, because of its characteristics and the charac-
teristics of the zoning district in which it would be located,
requires review on a case by case basis to determine
whether it should be permitted, conditionally permitted, or
denied.” Milwaukee, Wis. Code § 295-7-166. Special use
designations are instruments of municipal planning that
allow city officials to retain review power over land uses
that, although presumptively allowed, may pose special
problems or hazards to a neighborhood. See generally Delta
Biological Res., Inc. v. Bd. Zoning Appeals, 467 N.W.2d 164,
166-67 (Wis. Ct. App. 1991).
  In Milwaukee, an applicant for a special use permit must
present its plans to the Department of City Develop-
No. 04-1966                                                  5

ment (“the DCD”), where they are reviewed by a plan
examiner. If the DCD denies the special use application, the
applicant may appeal the decision to the Milwaukee Board
of Zoning Appeals (“BOZA”), where the application is
reviewed, a public hearing is held and evidence is heard. See
Wis. Stat. § 62.23(7)(e). Consistent with this procedure, WCS
submitted a plan to DCD, outlining its intent to relocate the
mental health clinic and several of its administrative offices
to the new building. The plan stated that WCS would
occupy 32,000 out of the 81,000 square feet of space in the
building. An additional 12,000 square feet, according to the
plan, would be occupied by two existing tenants, a
Walgreens pharmacy and an office of the Social Security
Administration. The remaining 37,000 square feet, the plan
stated, would be rented out for use as office space or for
other commercial purposes.
  Under Wisconsin law, in deciding whether to issue a
special use permit, the City’s zoning officials are guided by
four statutory considerations: (1) protection of public health,
safety and welfare; (2) protection of the use, value and
enjoyment of other property in the neighborhood; (3) traffic
and pedestrian safety; and (4) consistency with the City’s
comprehensive plan. See Milwaukee, Wis. Code § 295-59-5.5.
After reviewing WCS’ plan, DCD concluded that these
criteria had not been met. Specifically, DCD expressed
concern over the second factor, protection of neighboring
property value. It stated that use of the property as a mental
health clinic would jeopardize the commercial revitalization
that the neighborhood currently was undergoing. WCS,
availing itself of its right to administrative review, then
appealed the DCD’s decision to Milwaukee’s BOZA.
 On March 22, 2001, BOZA held a hearing on WCS’ appeal.
At the outset, WCS argued that, even if its proposal did not
6                                                 No. 04-1966

meet the special-use criteria, the ADA required BOZA to
modify these criteria so that WCS would have the same
opportunity to obtain a permit as would a clinic serving
non-disabled individuals. BOZA denied this request
because it did not believe that it had the authority to deviate
from the City’s zoning code. Indeed, BOZA prohibited WCS
from introducing evidence on the issue. Confined to making
its case under the unmodified special use considerations,
WCS presented evidence in an effort to refute the perception
that the mental health clinic posed a safety threat and would
discourage businesses from locating in the neighborhood.
This evidence included testimony from a security official
who told BOZA that, based on his own investigation, WCS’
patients had not been the source of any safety problems in
WCS’ current neighborhood. WCS also presented letters
from its current neighbors to the same effect. Finally, WCS
submitted evidence of an award it had received from the
National Institute of Justice for exemplary care of previously
institutionalized individuals with mental health needs.
   BOZA then heard testimony in opposition to the permit.
An attorney representing several area businesses testified
that opening a mental health clinic that serves a large
number of young, unemployed males with histories of
mental illness and illegal behavior substantially increases
the chance of crime and anti-social behavior in the neighbor-
hood. In a similar vein, a nearby high school voiced its fear
that WCS’ clients would be riding public transit alongside
its “young and vulnerable” students. R.15, Ex.B-1 at 43.
Additionally, a neighborhood organization encouraged
residents to object to WCS’ request; it circulated leaflets that
argued that the clustering of WCS’ clientele “in one location
on a daily basis raises a serious risk for the health and well
being of people living and working in surrounding neigh-
borhoods.” Id., Ex.B-3 at 327-28.
No. 04-1966                                                  7

   On May 9, 2001, BOZA voted unanimously to deny
WCS’ application for a special use permit. The accompany-
ing written decision said only that the proposed use was
inconsistent with the considerations set forth in the zon-
ing code. However, several board members orally an-
nounced the reasoning behind their decision. One member
noted that the “overwhelming” opposition from neighbor-
hood residents convinced him that the WCS clinic would
have “a damaging effect upon neighboring business.” Id.,
Ex.B-1 at 6. Another member stated that WCS’ clientele,
with its large number of convicted criminals, raised “red
flags” for local residents. Id. at 7. These board members did
not think that BOZA had the duty to question the “percep-
tions” of local residents regarding the possible dangers
presented by WCS’ patients. Id. at 6-7.


C. The First Federal Court Proceeding
  Although Wisconsin law allows for direct review by
a Wisconsin state court of adverse BOZA decisions, see
Wis. Stat. § 62.23(10), WCS instead filed the present action
in the United States District Court for the Eastern District of
Wisconsin, see Wisconsin Corr. Serv. v. City of Milwaukee, 173
F. Supp. 2d. 842 (E.D. Wis. 2001) (“WCS I”). Its complaint
alleged that BOZA had violated the ADA and the Rehabili-
tation Act by failing to make reasonable modifications to its
methods for determining whether to issue a special use
permit. The complaint also requested an injunction directing
Milwaukee to issue the desired permit.
  The district court held that BOZA had violated the federal
disability laws when it failed even to consider making a
reasonable modification to its policies to accommodate
WCS’ request. The court began its analysis by noting the
8                                                  No. 04-1966

basic Supremacy Clause principle that federal laws are
superior to conflicting local laws. See U.S. Const. art. VI, cl.
2. The court noted that invocation of this basic principle did
not necessarily mean that WCS was entitled to a special use
permit as an accommodation under the ADA. BOZA’s
failure even to consider WCS’ accommodation request,
however, had deprived the court of a sufficient factual
record on which to determine whether WCS had a right to
such an accommodation. The court directed that BOZA hear
evidence on WCS’ accommodation claim and determine: (1)
whether WCS’ patients are “disabled”; (2) whether the
requested accommodation is “reasonable” and “necessary”;
and (3) whether the requested relief would work a “funda-
mental change” to the services being rendered. See WCS I,
173 F. Supp. 2d at 853 (quoting 28 C.F.R. § 35.130(b)(7)).


D. The Second Proceeding Before the Board of Zoning
   Appeals
  On September 12, 2002, BOZA reconvened a public
hearing to decide whether, and to what extent, the ADA and
the Rehabilitation Act required it to modify its zoning
policies in considering WCS’ application for a special use
permit. BOZA heard testimony regarding the necessity of a
modification, whether such modification was a reasonable
accommodation and whether it might work any fundamen-
tal change on the City’s zoning practices.
  Jill Fuller, WCS’ clinic administrator, was the first to
testify. She described the state of overcrowding at WCS’
current facility and the effect that these conditions were
having on WCS’ patients. Individuals with severe men-
tal disabilities, Fuller explained, are particularly sensitive to
external stimuli and often have poor socials skills. Over-
crowding in the common area of WCS’ facility—a room
No. 04-1966                                                  9

described by another WCS administrator as noisy, smoky
and packed—created an extremely stressful environment for
these patients and caused their symptoms to become more
acute. Additionally, Fuller testified that overcrowding
compromised the privacy of one-on-one therapy sessions,
which represent a primary component of WCS’ treatment.
  WCS then presented testimony from its executive director,
Stephen Swigart. He described the search process under-
taken by WCS to find a new facility that, in addition to
being of adequate size, would satisfy the clinic’s need for a
central location, access to public transit, a serviceable floor
plan, low renovation costs and a safe neighborhood. Swigart
testified that, after being denied the special use permit, WCS
had worked with city planners to locate a suitably zoned
property, but that its efforts had been unsuccessful. Any
potential alternatives, Swigart explained, were either
unavailable or too costly.
  Finally, WCS presented expert testimony from Dr. Nancy
Frank, the Chair and Associate Dean of the Department
of Architecture and Urban Planning at the University of
Wisconsin-Milwaukee. She opined that locating the men-
tal health clinic at WCS’ desired location, 3176 West Wiscon-
sin Avenue, would have a positive rather than an adverse
effect on the surrounding neighborhood. Pointing out that
a properly zoned health clinic already was located directly
across the street from the proposed site, Frank noted that
WCS’ clinic would be a consistent addition to the neighbor-
hood and encourage commercial uses of a similar nature. In
addition, Frank testified that the building at 3176 West
Wisconsin Avenue had been mostly vacant for some time.
According to Frank, the goal of city planners seeking to
revitalize a commercial area should be to fill vacant space as
quickly as possible. Frank predicted that relocating WCS
10                                                No. 04-1966

and all of its employees to the area would attract businesses
such as “restaurants, dry cleaners [and] coffee shops” eager
to serve the new influx of professionals. R.45, Ex.F-2 at 58.
Frank further stated that “[i]t’s actually a strategy in urban
redevelopment to try to get a good non-profit anchor in an
area first because they’re often less dependant on having an
area that already has a lot of consumer demand, and you
can then build on that employee base.” Id. When asked
about safety concerns, Frank stated that four of the six
parole offices in the City of Milwaukee were located in areas
zoned for business use. Frank saw no reason why WCS’
clinic would present any more of a safety risk than these
offices.
  BOZA then heard testimony from Michael Murphy, an
alderman representing the area in which WCS was seek-
ing to relocate its clinic. Steadfastly opposed to WCS’ plans,
Alderman Murphy stated that “WCS’ thrust to rip an 81,000
square foot building out of the heart of this emerging
business district could be fatal to this area.” Id. at 94. When
pressed on whether the new clinic conceivably could bring
economic benefits to the neighborhood, Alderman Murphy
conceded that the influx of professionals potentially could
draw new businesses. He stated, nevertheless, that he
objected to the plan because it meant that WCS, as a non-
profit, would not pay tax on the space used for its clinic and
operations; Alderman Murphy preferred a tax-paying
commercial tenant in the space. Notably, the only submis-
sion on whether WCS’ patients were a safety risk to the
community were affidavits from business owners near the
proposed site. None of these opinions, however, was
supported by actual evidence.
  On December 22, 2002, BOZA issued a written decision
denying the special use permit to WCS. It concluded that
No. 04-1966                                                11

WCS’ claim for an accommodation under the disabilities
laws failed because such an accommodation was neither
reasonable nor necessary. On the question of necessity,
BOZA framed the inquiry as “whether the requested
accommodation will ameliorate, that is, directly improve the
burden of the mental illnesses from which [WCS’ patients]
suffer.” Id., Ex.H at 2. Concluding that WCS had not
satisfied its burden on this issue, BOZA noted that mental
illness, unlike a physical impairment, “is not a one size fits
all handicap or disability within the ADA.” Id. Rather, in
BOZA’s view, the mental disabilities suffered by WCS’
patients were likely to vary dramatically across the patient
population. It was therefore, according to BOZA, a “gross
overgeneralization and speculation” for WCS to contend
that each of its patients would respond favorably to treat-
ment in the new, larger facility. Id. Moreover, in BOZA’s
estimation, the factors considered by WCS in seeking out a
new facility were not linked to its patients’ disabilities.
According to BOZA, “[t]he WCS search criteria resemble
those of many other commercial businesses, profit or non
profit, which have outgrown their physical premises and
want to move into a larger setting.” Id.
  BOZA concluded that, in addition to being unnecessary,
the requested accommodation also was unreasonable. In
making this determination, BOZA stressed that the relo-
cation of WCS’ clinic to its proposed site would “place an
undue financial burden on the district,” id. at 5, threatening
“the economic survival [of] this already shaky neighbor-
hood,” id. at 6. According to BOZA, these costs to the
City were not outweighed by the needs of WCS because
WCS apparently had other relocation options available
in other neighborhoods.
  Finally, BOZA determined that the requested accommoda-
12                                                 No. 04-1966

tion, in addition to being unreasonable and unnecessary,
fundamentally would alter the City’s zoning scheme:
     Every time a social service agency, AA club, homeless
     shelter serving mentally ill homeless people; hospital,
     psychologists or psychiatrists [sic] office, therapists’
     office, etc. wanted to locate their business in a zoning
     district requiring a special use to do so, the City or this
     Board would have to automatically consider giving
     them an accommodation under ADA regardless of the
     special use criteria in the City’s ordinance.
Id. at 3.


E. The Second Federal Court Proceeding
   On January 24, 2003, WCS reinstated its action in federal
court challenging the second BOZA ruling. It alleged that
the City’s refusal to grant WCS a special use permit violated
the ADA and the Rehabilitation Act. In determining the
standard that it ought to employ in assessing WCS’ accom-
modation claim, the district court declined, despite the
parties’ recommendation, to apply the test that governs
cases arising under the Fair Housing Amendments Act of
1988 (“FHAA”). The FHAA requires a reasonable accommo-
dation to zoning rules when necessary to afford a handi-
capped person the “equal opportunity” to obtain housing.
42 U.S.C. § 3604(f)(3)(B). In the district court’s view, this
standard did not apply to the present case because WCS
sought its accommodation not to obtain housing but to
provide mental health services to its patients. Moreover, the
court continued, “unlike housing, the general public does
not require mental health services; thus, in the present case,
it makes little sense to inquire whether the disabled are
entitled to equal opportunity to such services.” Wisconsin
Cmty. Servs. v. City of Milwaukee, 309 F. Supp. 2d 1096, 1105
No. 04-1966                                                  13

(E.D. Wis. 2004) (“WCS II”).
   Instead, relying upon our decision in Oconomowoc Residen-
tial Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir.
2002), the court held that, to satisfy its initial burden, WCS
must show that its requested accommodation is (1) reason-
able and (2) necessary to enhance affirmatively its disabled
patients’ “ ‘quality of life by ameliorating the effects of the
disability.’ ” WCS II, 309 F. Supp. 2d at 1105 (quoting
Oconomowoc Residential Programs, 300 F.3d at 784). Once
WCS had made this showing, according to the district court,
the City then must “demonstrate unreasonableness or
undue hardship in the particular circumstances.” Id.
   Applying this framework, the court first assessed the
accommodation’s reasonableness by weighing the benefits
to WCS’ clients against the potential cost to the City of
issuing the special use permit. In the court’s view, WCS had
presented convincing evidence that overcrowding was a real
problem at its current facility and one that both aggravated
the effects of its clients’ disabilities and impaired WCS’
ability to provide services that ameliorate such effects. The
new, larger facility, the court stated, would solve this
overcrowding problem and benefit WCS’ patients substan-
tially. Against this benefit, the court weighed the costs
purportedly incurred by the City in undermining its zoning
code, interfering with the revitalization of a business district
and losing potential tax revenue. The court did not find
these costs significant enough to outweigh the clear benefit
that the special use permit would provide WCS. Crediting
the testimony of Frank, the court found that WCS’ new
clinic actually would benefit the economic development of
the neighborhood. In any event, noted the court, having a
tenant in a vacant building was better than having no tenant
at all. Further, the court took the view that, given WCS’
plans to lease a majority of its new space to commercial
14                                              No. 04-1966

tenants, the City would not be deprived of substantial tax
revenue.
  The court next considered whether WCS had established
that its requested accommodation was necessary. First,
the court concluded that, for reasons it already had de-
scribed in its reasonableness assessment, the proposed
facility would ameliorate some of the effects of WCS’
patients’ disabilities. Second, the court rejected the City’s
argument that WCS could have moved its clinic to another
location where a mental health clinic would not have
required a special use permit. Under the court’s view of
the evidence, this option was too costly for WCS. Al-
though recognizing that WCS perhaps could have
searched for available properties more effectively, the
court held that necessity may be established simply by
evidence of a good-faith, albeit failed, attempt to find an
alternative to the accommodation requested.


                             II
                      DISCUSSION
                             A.
  The legal question before us is whether, and to what
extent, a city must modify its zoning standards to prevent
them from discriminating against the disabled. The stat-
utes relevant to answering that question are three separate
but interrelated federal laws that protect persons with
disabilities from discrimination. The first two laws chrono-
logically were the Rehabilitation Act of 1973 and the FHAA.
Enactment of the ADA followed in 1990. All three statutory
schemes embrace the concept that, in certain instances, the
policies and practices of covered entities must be modified
to accommodate the needs of the disabled. We now shall
examine each statute’s accommodation requirement in
No. 04-1966                                                     15

detail.


    1. The Rehabilitation Act of 1973
  The Rehabilitation Act, 29 U.S.C. § 701 et seq., applies to
federal government agencies as well as organizations that
receive federal funds. The parties in this case stipulated that
the City receives federal funding and is therefore covered by
the Rehabilitation Act. Much of the Rehabilitation Act
focuses on employment, but section 504 broadly covers
other types of programs and activities as well. Section 504(a)
provides that “[n]o otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of
her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance . . . .” 29 U.S.C. § 794(a).
  The Rehabilitation Act does not contain a general accom-
modation requirement. Rather, in implementing the Re-
habilitation Act,3 the Department of Health and Human
Services (“HHS”) promulgated several regulations that
specifically require reasonable accommodations. See Traynor


3
   Courts tend to look to the Rehabilitation Act’s implementing
regulations in interpreting other disability laws such as the
ADA and the FHAA. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 631-
32 (1998) (stating that courts are required to “construe the ADA
to grant at least as much protection as provided by the regula-
tions implementing the Rehabilitation Act”); see also 42 U.S.C. §
12201 (“Except as otherwise provided in this chapter, nothing in
this chapter shall be construed to apply a lesser standard than the
standards applied under title V of the Rehabilitation Act of 1973
(29 U.S.C. § 790 et seq.) or the regulations issued by Federal
agencies pursuant to such title.”).
16                                                No. 04-1966

v. Turnage, 485 U.S. 535, 550 n.10 (1988) (observing that these
regulations “were drafted with the oversight and approval
of Congress and therefore constitute an important source of
guidance on the meaning of § 504”) (internal quotation
marks and citations omitted)). The most pertinent of these
regulations requires recipients of federal funds to “make
reasonable accommodation to the known physical or mental
limitations of an otherwise qualified handicapped applicant
or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the
operation of its program.” 28 C.F.R. § 41.53. The regulation’s
use of the terms “applicant or employee” suggests that it
pertains most directly to workplace accommodation, rather
than to the modification of a city’s zoning practices.
  Nevertheless, the Supreme Court has located a duty to
accommodate in the statute generally. In Alexander v. Choate,
469 U.S. 287 (1985), handicapped individuals challenged a
proposal by the State of Tennessee to reduce the number of
inpatient hospital days that the state Medicaid program
would pay hospitals on behalf of Medicaid recipients.
Because handicapped individuals spend more time in
hospitals, on average, than the non-disabled, the plaintiffs
argued that Tennessee’s proposal had a disproportionate
effect on the disabled and hence was discriminatory in
violation of section 504 of the Rehabilitation Act. After
rejecting Tennessee’s argument that federal law prohibits
only intentional discrimination against the handicapped, the
Court explained that “ ‘a refusal to modify an existing
program might become unreasonable and discriminatory.’”
Id. at 300 (quoting Southeastern Cmty. Coll. v. Davis, 442 U.S.
397, 413 (1979)). The Rehabilitation Act’s promise of
“meaningful access” to state benefits, according to the
Court, means that “reasonable accommodations in the
grantee’s program or benefit may have to be made.” Id. at
No. 04-1966                                                 17

301.
   However, in applying this principle, the Court in Choate
held that Tennessee’s proposal, in fact, did not deny the
plaintiffs “meaningful access” to Medicaid services. This
was because “[t]he new limitation [did] not invoke
criteria that have a particular exclusionary effect on the
handicapped; the reduction, neutral on its face, [did] not
distinguish between those whose coverage will be re-
duced and those whose coverage will not on the basis of any
test, judgment, or trait that the handicapped as a class are
less capable of meeting or less likely of having.” Id. at 302.
More specifically, the Court noted that there was no
“suggestion” in the record “that the illnesses uniquely
associated with the handicapped or occurring with greater
frequency among them cannot be effectively treated, at least
in part, with fewer than 14 days’ coverage.” Id. n.22. In
short, the Court held that, because the denial of benefits was
not linked in any way to the plaintiffs’ particular disabili-
ties, Tennessee’s hospital-day reduction, even when left
unmodified, did not offend the Rehabilitation Act.
   Following Choate, several courts of appeals have adopted
the view that the Rehabilitation Act requires public en-
tities to modify federally assisted programs if such a
modification is necessary to ensure that the disabled have
equal access to the benefits of that program. See, e.g.,
Henrietta D. v. Bloomberg, 331 F.3d 261, 274-75 (2d Cir. 2003).
These circuits, including ours, also follow the corollary
principle implicit in the Choate decision that the Rehabilita-
tion Act helps disabled individuals obtain access to benefits
only when they would have difficulty obtaining those
benefits “by reason of” their disabilities, and not because of
some quality that they share generally with the public. See,
e.g., id. at 276-79 (acknowledging “that the ADA and the
18                                                No. 04-1966

Rehabilitation Act are addressed to rules that hurt people
with disabilities by reason of their handicap, rather than
that hurt them solely by virtue of what they have in com-
mon with other people” (internal quotation marks, citations,
alterations and emphasis omitted)); Washington v. Indiana
High Sch. Athletic Assoc., 181 F.3d 840, 848 (7th Cir. 1999)
(noting that, in a Rehabilitation Act modification claim,
“[t]here must be a causal connection between the disability
and [the plaintiff’s] ineligibility”); Forest City Daly Housing
v. Town of N. Hempstead, 175 F.3d 144, 152 (2d Cir. 1999)
(holding that, for claims under the FHAA, the ADA and the
Rehabilitation Act, a proposed accommodation must be
“necessary in light of the disabilities” of the plaintiffs; and
dismissing claims because “no analogous housing opportu-
nity exist[ed] for persons without disabilities” (internal
quotation marks omitted)); Crowder v. Kitagawa, 81 F.3d
1480, 1485 (9th Cir. 1996) (relying on Choate to require
Hawaii to modify a law that required carnivorous animals
entering the state, including guide dogs, to be quarantined
for 120 days because the quarantine discriminated against
the visually impaired “by reason of their disability”); United
States v. Bd. of Trs. of the Univ. of Alabama, 908 F.2d 740, 748
(11th Cir. 1990) (recognizing that Choate requires an unmod-
ified program to bear more heavily on the disabled on
account of their disability and distinguishing the case of a
deaf student who, unlike his non-handicapped peers, is less
likely to benefit from his classes without a sign-language
interpreter).


  2. The Fair Housing Amendments Act
  The duty to accommodate imposed by the FHAA, 42
U.S.C. § 3601 et seq., mirrors in large part the modification
obligations under the Rehabilitation Act. Enacted in 1988,
No. 04-1966                                                      19

the FHAA extended the scope of other federal housing laws
to cover persons with disabilities. Under these amendments,
disabled individuals may not be prevented from buying or
renting private housing because of their disabilities. See id.
§ 3604. They also must be provided reasonable “accommo-
dation in rules, policies, practices, or services when such
accommodation may be necessary to afford [them] equal
opportunity to use and enjoy a dwelling.” Id. §
3604(f)(3)(B).4
  Although the plain language of the FHAA provides little
guidance concerning the reach of its accommodation
requirement, the contours of the obligation have been given
substantial elaboration by this court and other courts of
appeals. The basic elements of an FHAA accommodation
claim are well-settled. First, the requested accommodation
must be reasonable, which, as we have stated, is a “highly
fact-specific inquiry and requires balancing the needs of the
parties. An accommodation is reasonable if it is both
efficacious and proportional to the costs to implement it.”
Oconomowoc Residential Programs, 300 F.3d at 784 (internal
citations omitted). In the zoning context, a municipality may



4
  The legislative history of the Fair Housing Amendments Act
explains:
    The Committee intends that the prohibition against discrimi-
    nation against those with handicaps apply to zoning deci-
    sions and practices. The Act is intended to prohibit the
    application of special requirements through land-use
    regulations, restrictive covenants, and conditional or special
    use permits that have the effect of limiting the ability of such
    individuals to live in the residence of their choice in the
    community.
H.R. Rep. No. 100-711, at 24 (1988), reprinted in 1988 U.S.C.C.A.N.
2173, 2185.
20                                                   No. 04-1966

show that a modification to its policy is “unreasonable if it
is so at odds with the purpose behind the rule that it would
be a fundamental and unreasonable change.” Id. (internal
quotation marks and citations omitted).
  Second, the requested accommodation must be “neces-
sary,” meaning that, without the accommodation, the
plaintiff will be denied an equal opportunity to obtain the
housing of her choice. See id. at 784; see also Giebeler v. M &
B Assocs., 343 F.3d 1143, 1155 (9th Cir. 2003); Smith & Lee
Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996).
This has been described by courts essentially as a causation
inquiry. See, e.g., Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjust-
ment of Twp. of Scotch Plains, 284 F.3d 442, 460 (3d Cir. 2002)
(“This requirement has attributes of a causation require-
ment. And if the proposed accommodation provides no
direct amelioration of a disability’s effect, it cannot be said
to be necessary.” (internal quotation marks and citations
omitted)).
  In addition, the FHAA links the term “necessary” to the
goal of “equal opportunity.” 42 U.S.C. § 3604(f)(3)(B). The
“equal opportunity” element limits the accommodation
duty so that not every rule that creates a general inconve-
nience or expense to the disabled needs to be modified.
Instead, the statute requires only accommodations necessary
to ameliorate the effect of the plaintiff’s disability so that she
may compete equally with the non-disabled in the housing
market. We have enforced this limitation by asking whether
the rule in question, if left unmodified, hurts “handicapped
people by reason of their handicap, rather than . . . by virtue of
what they have in common with other people, such as a
limited amount of money to spend on housing.” See Hemi-
sphere Bldg. Co. v. Vill. of Richton Park, 171 F.3d 437, 440 (7th
Cir. 1999) (emphasis in original).
No. 04-1966                                                        21

   Most recently, we considered the “equal opportunity”
limitation in deciding an FHAA claim brought by a group
home challenging a city’s ad hoc decision to shut off the
water supply to the group home’s land. See Good Shepherd
Manor Found., Inc. v. City of Momence, 323 F.3d 557, 561-64
(7th Cir. 2003). Rejecting the group home’s claim that the
city had to modify its decision because shutting off its water
harmed its disabled residents by preventing them from
living in group homes, we stated that “[c]utting off the
water prevents anyone from living in a dwelling, not just
handicapped people.” Id. at 562. Put differently, the plain-
tiff’s accommodation claim failed because the disability
suffered by the group home’s residents did not deny them
an equal opportunity to obtain housing.5


5
   Other circuits similarly have adopted the view that the FHAA’s
accommodation requirement is limited only to lowering barriers
to housing that are created by the disability itself. See, e.g., Forest
City Daly Housing v. Town of N. Hempstead, 175 F.3d 144, 151-53
(2d Cir. 1999) (upholding the decision of a zoning board to
prevent a developer of an assisted living facility to relocate to a
business zone and agreeing with the district court that “reason-
able accommodations were not necessary to afford prospective
residents an equal housing opportunity, because persons without
disabilities do not have opportunities analogous to those being
sought here”); Bryant Woods Inn, Inc. v. Howard County, 124 F.3d
597, 604 (4th Cir. 1997) (“The ‘necessary’ element—the FHA
provision mandating reasonable accommodations which are
necessary to afford an equal opportunity—requires the demonstra-
tion of a direct linkage between the proposed accommodation
and the ‘equal opportunity’ to be provided to the handicapped
person. This requirement has attributes of a causation require-
ment. And if the proposed accommodation provides no direct
amelioration of a disability’s effect, it cannot be said to be
                                                      (continued...)
22                                                    No. 04-1966

    3. Title II of the Americans with Disabilities Act
   The ADA was built on the Rehabilitation Act and the
FHAA, but extends the reach of those laws substantially.
Invoking “the sweep of congressional authority, includ-
ing the power to enforce the fourteenth amendment and
to regulate commerce,” the ADA was designed “to pro-
vide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities.” 42 U.S.C. § 12101(b)(1), (b)(4). It forbids
discrimination against persons with disabilities in three
major areas of public life: (1) employment, which is covered
by Title I of the statute, id. § 12111-12117; (2) public services,
programs and activities, which are the subjects of Title II, id.
§ 12131-12165; and (3) public and private lodging, which is
covered by Title III, id. § 12181-12189. See generally, Tennessee
v. Lane, 541 U.S. 509, 516-17 (2004).
  This case concerns Title II, commonly referred to as the
public services portion of the ADA. Title II 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.” 42 U.S.C. § 12132.
  As courts have held, municipal zoning qualifies as a
public “program” or “service,” as those terms are employed
in the ADA, and the enforcement of those rules is an


5
   (...continued)
‘necessary.’ ” (emphasis in original)); Smith & Lee Assocs., Inc. v.
City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996) (concluding that,
to satisfy the “necessary” element of a FHAA accommodation
claim, the “[p]laintiffs must show that, but for the accommoda-
tion, they likely will be denied an equal opportunity to enjoy the
housing of their choice”).
No. 04-1966                                                       23

“activity” of a local government.6 Section 12131(2) goes on
to define “qualified individual with a disability” as
    an individual with a disability who, with or without
    reasonable modifications to rules, policies, or practices, the
    removal of architectural, communication, or transporta-
    tion barriers, or the provision of auxiliary aids and
    services, meets the essential eligibility requirements for
    the receipt of services or the participation in programs
    or activities provided by a public entity.
(emphasis added).7
  Unlike Title I and Title III, Title II of the ADA does not
contain a specific accommodation requirement.8 Instead, the



6
  See, e.g., Bay Area Addiction Research v. City of Antioch, 179 F.3d
725, 730-32 (9th Cir. 1999) (applying Title II to a city’s zoning
requirements); Innovative Health Sys., Inc. v. City of White Plains,
117 F.3d 37, 48-49 (2d Cir. 1997) (same).
7
  In the opening provisions of the ADA, Congress made the
following finding, applicable to the statute in all parts:
    individuals with disabilities continually encounter various
    forms of discrimination, including outright intentional
    exclusion, the discriminatory effects of architectural, trans-
    portation, and communication barriers, overprotective rules
    and policies, [and] failure to make modifications to existing
    facilities and practices . . . .
42 U.S.C. § 12101(a)(5) (emphasis added).
8
   Title I provides that an employer unlawfully discriminates
by “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individ-
ual with a disability.” 42 U.S.C. § 12112(b)(5)(A). Similarly, Title
III’s definition of discrimination includes “a failure to make
                                                     (continued...)
24                                                    No. 04-1966

Attorney General, at the instruction of Congress,9 has issued
an implementing regulation that outlines the duty of a
public entity to accommodate reasonably the needs of the
disabled. The Title II regulation reads:
        A public entity shall make reasonable modifications
      in policies, practices, or procedures when the modifica-
      tions are necessary to avoid discrimination on the basis
      of disability, unless the public entity can demonstrate
      that making the modifications would fundamentally
      alter the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7).10
     Before proceeding with an assessment of the case before


8
  (...continued)
reasonable modifications in policies, practices, or procedures,
when such modifications are necessary to afford such goods,
services, facilities, privileges, advantages, or accommodations
to individuals with disabilities.” Id. § 12182(b)(2)(A)(ii).
9
   See 42 U.S.C. § 12134(a) (“[T]he Attorney General shall promul-
gate regulations in an accessible format that implement this
part.”). The Attorney General’s regulations, Congress further
directed, “shall be consistent with this chapter and with the
coordination regulations . . . applicable to recipients of Federal
financial assistance under [§ 504 of the Rehabilitation Act].” Id. §
12134(b).
10
   The Supreme Court never has decided whether these reg-
ulations are entitled to the degree of deference described in
Chevron, U.S.A. Inc. v. National Resource Defense Council, Inc., 467
U.S. 837, 844 (1984). Nevertheless, the Court has said that,
“[b]ecause the Department of Justice is the agency directed by
Congress to issue regulations implementing Title II . . . its views
warrant respect.” Olmstead v. L.C., 527 U.S. 581, 597-98 (1998)
(internal citations omitted).
No. 04-1966                                                    25

us, we pause for a closer examination of the regulation
promulgated under the ADA because the text of this
regulation gives us several important guideposts for the
resolution of this case. First, as our cases already hold,
failure to accommodate is an independent basis for liability
under the ADA. Second, the plain language of the regula-
tion also makes clear that an accommodation only is
required when necessary to avoid discrimination on the basis
of a disability. Third, the regulation states, in its plain
language, that any accommodation must be a reasonable one.
We shall now examine each of these features of the regula-
tion, keeping in mind that Congress has expressed its desire
that interpretation of the ADA be compatible with interpre-
tation of the other federal disability statutes, a point also
made clear in several holdings of the Supreme Court.11
  Under the Title II regulation, a modification must be
“necessary to avoid discrimination on the basis of disabil-
ity.” Id. In this way, the regulation differs slightly from the
accommodation regulation promulgated under the Rehabili-
tation Act, which does not contain any express language
regarding necessity. See id. § 41.53. However, as we
noted earlier, Choate seems to read the Rehabilitation Act
as containing a necessity requirement.
  Similarly, there is a minor difference between the Title II
regulation and the FHAA’s accommodation provision.
Although the FHAA’s accommodation provision does
contain an express necessity requirement, the text is differ-
ent from the ADA regulation. The FHAA version reads


11
   See, e.g., Bragdon, 524 U.S. at 631-32 (stating that courts are
required to “construe the ADA to grant at least as much protec-
tion as provided by the regulations implementing the Rehabilita-
tion Act”).
26                                                  No. 04-1966

“necessary to afford . . . equal opportunity,” 42 U.S.C. §
3604(f)(3)(B); by contrast, the ADA version reads “necessary
to avoid discrimination on the basis of disability,” 28 C.F.R.
§ 35.130(b)(7). Nevertheless, as we have interpreted it, the
Title II regulation, like the FHAA provision, links necessity
to a causation inquiry. In the context of the FHAA, we have
enforced this limitation by asking whether the rule in
question, if left unmodified, hurts “handicapped people by
reason of their handicap, rather than . . . by virtue of what they
have in common with other people, such as a limited
amount of money to spend on housing.” See Hemisphere
Bldg. Co., 171 F.3d at 440 (emphasis in original). Similarly,
under our Title II case law, the “on the basis of” language
requires the plaintiff to show that, “but for” his disability,
he would have been able to access the services or benefits
desired. See Washington v. Indiana High Sch. Athletic Assoc.,
181 F.3d 840, 849 (7th Cir. 1999) (requiring a high school to
modify its rule prohibiting “red-shirting” for a student
whose learning disability required him to miss a year of
school). Moreover, Title II’s necessity component mirrors the
judicial gloss afforded to the Rehabilitation Act in Choate. As
in Choate, a plaintiff invoking Title II’s modification require-
ment must show that his disability is what causes his
deprivation of the services or benefits desired. In short, each
of these provisions requires the plaintiff to satisfy the
“necessary” element by showing that the reason for his
deprivation is his disability.
  The regulation also requires that any accommodation be
a reasonable one. In the context of the FHAA, we have
interpreted this requirement to mandate an inquiry into
whether the accommodation is “both efficacious and
proportional to the costs to implement it.” Oconomowoc
Residential Programs, 300 F.3d at 784. In the zoning context,
a municipality may show that a modification to its policy is
No. 04-1966                                                      27

“unreasonable if it is so at odds with the purpose behind the
rule that it would be a fundamental and unreason-
able change.” Id. (internal quotation marks and citations
omitted). This assessment is “a highly fact-specific in-
quiry and requires balancing the needs of both parties.” Id.
In this regard, we think it is important to note that, in
undertaking this highly fact-specific assessment, it is
necessary that the court take into consideration all of the
costs to both parties. Some of these costs may be objective
and easily ascertainable. Others may be more subjective and
require that the court demonstrate a good deal of wisdom in
appreciating the intangible but very real human costs
associated with the disability in question. On the other side
of the equation, some governmental costs associated with
the specific program at issue may be a matter of simply
looking at a balance sheet. Others, however, may be those
intangible values of community life that are very important
if that community is to thrive and is to address the needs of
its citizenry.12


12
  Contrary to the assertions of the City, see Appellant’s Br. at 40-
42 (quoting Bryant Woods, Inc. v. Howard County, Maryland, 124
F.3d 597, 603 (4th Cir. 1997)), we do not believe that, in conduct-
ing this reasonableness inquiry, the district court owes special
deference to the City’s zoning ordinance. The House Report
accompanying the FHAA noted specifically that “[t]he Commit-
tee intends that the prohibition against those with handicaps
apply to zoning decisions and practices.” H.R. Rep. No. 100-711,
at 24 n.63 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2185.
Furthermore, the House had rejected an amendment to the FHAA
that “mandated” a showing of discriminatory “intent before a
zoning decision [could be] struck down.” See id. at 89 (additional
views of Representatives Swindall, Sensenbrenner, Shaw,
Dannemeyer, Coble and Slaughter). Because the ADA is founded
                                                     (continued...)
28                                                    No. 04-1966

   We pause to emphasize one other important feature of the
Title II regulation. We think that the regulation makes clear
that the duty to accommodate is an independent basis of
liability under the ADA. The language of the regula-
tion itself certainly supports this view. By requiring mea-
sures that are “necessary to avoid discrimination on the
basis of disability,” 28 C.F.R. § 35.130(b)(7), the regulation
clearly contemplates that prophylactic steps must be taken
to avoid discrimination. Indeed, we have taken this view in
our earlier cases, and other circuits also have favored this
interpretation. See McGary v. City of Portland, 386 F.3d 1259,
1266 (9th Cir. 2004) (“The district court’s suggestion that
McGary must allege that the City inconsistently enforced its
nuisance abatement policy misses the point of a reasonable
accommodation claim. Indeed, the crux of a reasonable
accommodation claim is a facially neutral requirement that
is consistently enforced.”); Henrietta D. v. Bloomberg, 331
F.3d 261, 276-77 (2d Cir. 2003) (“[A] claim of discrimination
based on a failure reasonably to accommodate is distinct
from a claim of discrimination based on disparate
impact.”).13


12
  (...continued)
on the FHAA and is intended to expand upon rights guaranteed
by that act, see supra at 21-22, we believe that these statements
provide guidance with respect to the ADA, especially in the
absence of contrary statutory language or legislative history
specific to the ADA. The one-sentence dicta to the contrary in
Bryant Woods is, notably, unsupported by citation. See 124 F.3d at
603.
13
  Similarly, in Olmstead, two mentally ill patients brought a
Title II action against a state hospital that refused to place them
in a community living environment. The Court rejected the state’s
argument that “discrimination” under Title II “necessarily
                                                      (continued...)
No. 04-1966                                                      29

   Under the law of this circuit, a plaintiff need not allege
either disparate treatment or disparate impact14 in order
to state a reasonable accommodation claim under Title II
of the ADA. See Washington, 181 F.3d at 846-48 (describ-
ing the showing of a failure to accommodate as an inde-
pendent method of proving discrimination under Title II);
cf. Good Shepherd Manor Found., 323 F.3d at 561-62 (holding
that “reasonable accommodation is a theory of liability
separate from intentional discrimination”). In sum, a Title II
claim under the ADA “may be established by evidence that
(1) the defendant intentionally acted on the basis of
the disability, (2) the defendant refused to provide a
reasonable modification, or (3) the defendant’s rule dis-
proportionally impacts disabled people.” Washington, 181
F.3d at 847. The district court resolved WCS’ claim employ-
ing the second approach, see Wisconsin Community Serv., 309
F. Supp. 2d at 1104, and our case law provides support for



13
   (...continued)
requires uneven treatment of similarly situated individuals.” 527
U.S. at 598 (internal quotation marks omitted). “[S]atisfied that
Congress had a more comprehensive view of the concept of
discrimination advanced in the ADA,” id., the Court went on to
hold that the state hospital violated Title II and 28 C.F.R.
§ 35.130(b)(7) by failing to accommodate the plaintiffs’ request for
community living, id. at 607.
14
  We understand the City to be using “disparate impact” to
signify the method of proof under anti-discrimination laws that
compares the treatment among otherwise similarly situated
individuals. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S.
977, 987 (1988) (“The evidence in these ‘disparate impact’ cases
usually focuses on statistical disparities, rather than specific
incidents, and on competing explanations for those disparities.”).
30                                                No. 04-1966

such a cause of action.15


                               B.
  With the key legislative provisions in full view, we
turn now to the task of applying them to the case before us.
In essence, we must decide whether, and to what extent, the
Rehabilitation Act and Title II require the City to modify its
zoning practices in order to accommodate the needs of the
disabled individuals served by WCS.
   WCS submits that the City must waive application of
its normal special-use criteria for WCS because it has shown
that granting the permit will ameliorate overcrowding, a
condition that particularly affects its disabled clients. Before
accepting this position, however, we must ask whether WCS
has satisfied the “necessity” element contained in the
Rehabilitation Act as interpreted by Choate and in the Title
II regulation, see 28 C.F.R. § 35.130(b)(7). WCS contends that
the necessity element is satisfied simply when a modifica-
tion helps the disabled, regardless of whether it is necessary
to alleviate discrimination. Implicit in this position is that
the federal accommodation obligation reaches not only rules
that create barriers “on the basis of” a person’s disability,
but also rules that are not disability-based and create
obstacles to persons because of some factor unrelated to
disability.
     As we already have discussed, with respect to the Rehabil-


15
  Because the district court resolved WCS’ ADA claim on a
reasonable accommodation basis, it did not have occasion to
reach WCS’ disparate impact or disparate treatment arguments.
We therefore do not address, nor do we offer any comment on,
the merits of those claims.
No. 04-1966                                                   31

itation Act, Choate held that a modification is “necessary”
only when it allows the disabled to obtain benefits that they
ordinarily could not have by reason of their disabilities, and
not because of some quality that they share with the public
generally. See Choate, 469 U.S. at 302; cf. Hemisphere Bldg. Co.,
171 F.3d at 440 (asking whether the rule in question, if left
unmodified, hurts “handicapped people by reason of their
handicap, rather than . . . by virtue of what they have in
common with other people, such as a limited amount of
money to spend on housing” (emphasis in original)). The
inquiry is the same under the ADA regulation, which asks
whether a modification is “necessary to avoid discrimina-
tion on the basis of disability.” 28 C.F.R. § 35.130(b)(7).
Framed by our cases as a causation inquiry, the element is
satisfied only when the plaintiff shows that, “but for” his
disability, he would have been able to access the services or
benefits desired. See Washington, 181 F.3d at 849.
   On the present record, WCS’ inability to meet the
City’s special use criteria appears due not to its client’s
disabilities but to its plan to open a non-profit health clinic
in a location where the City desired a commercial, taxpaying
tenant instead. As far as this record indicates, the
City would have rejected similar proposals from non-
profit health clinics serving the non-disabled. WCS contends
that Title II’s accommodation requirement calls, in such a
situation, for “ ‘preferential’ treatment and ‘is not limited
only to lowering barriers created by the disability itself.’ ”
Appellee’s Br. at 30 n.5 (quoting Giebeler, 343 F.3d at 1154).
WCS’ view, however, is inconsistent with the “necessity”
element as it has been defined under the Rehabilitation Act,
the FHAA and Title II of the ADA. On this record, because
the mental illness of WCS’ patients is not the cause-in-fact
of WCS’ inability to obtain a suitable facility, the program
that it seeks modified does not hurt persons with disabilities
32                                                No. 04-1966

“by reason of their handicap.” Hemisphere Bldg. Co., 171 F.3d at
440 (emphasis in original).
  WCS responds that the Supreme Court’s decision in
US Airways, Inc. v. Barnett, 535 U.S. 391 (2001), has overruled
the principle, central to previous Title II accommodation
decisions, that the proposed modification must be necessary
to avoid discrimination on the basis of a disability. In
Barnett, a case decided under Title I of the ADA, a US
Airways baggage handler injured his back and requested
transfer to a mailroom position that recently had become
available. US Airways refused because, under its seniority
policy, the company was required to award the position to
a more senior employee. Recognizing that US Airways’
seniority policy must yield, under certain circumstances, to
the needs created by the plaintiff’s disability, the Supreme
Court held that the plaintiff should be permitted to rebut the
presumption that his requested modification to the neutral
seniority policy was unreasonable.
   According to WCS’ characterization, in Barnett, the
seniority policy treated the disabled and non-disabled alike,
and it was a non-disability characteristic (seniority) that
denied Barnett the job. WCS sees no distinction between
Barnett and the present case: Just as the plaintiff in Barnett
was ineligible for the mail room position because of his
seniority rather than his disability, WCS was ineligible for
a special use permit because it was a non-profit health clinic,
not because its clients were disabled. Because the Supreme
Court allowed Barnett’s claim to go forward, albeit with a
heightened burden of persuasion, WCS submits that it has
satisfied the necessity element of its accommodation claim.
  We cannot accept this argument. Barnett and the present
case simply deal with different analytical problems. Fairly
read, Barnett did not deal with the issue of necessity-causal-
No. 04-1966                                                    33

ity, which was addressed in the cases we discussed earlier.
Rather, it dealt with the second question that courts must
confront in Title II accommodation cases: whether the
accommodation was reasonable. Yet, this element cannot be
reached until it has been determined that an accommoda-
tion is necessary because a person’s disability is the cause
for his being denied the service or benefit. As we explained
earlier, to satisfy Title II’s necessity element, a plaintiff must
show that, “but for” its disability, it would have received
the ultimate benefit being sought—which, in WCS’ case, is
a larger facility. Washington, 181 F.3d at 849. The same is
true under the Rehabilitation Act. See Choate, 469 U.S. at 302.
If the City’s zoning rules are to be compared to the seniority
policy in Barnett, WCS must demonstrate that, because of its
clients’ disabilities, it cannot relocate to a suitable site. Only
then will the unmodified policy hurt the disabled on account
of their disability. Only then will the modification be
“necessary to avoid discrimination on the basis of disabil-
ity.” 28 C.F.R. § 35.130(b)(7).
  The district court assumed that the proposed modification
could be deemed “necessary” even if the disabilities suf-
fered by WCS’ patients were not the cause-in-fact of its
inability to find a larger building. The district court failed to
apply a “but for” causation standard in determining the
necessity element of WCS’ accommodation claim. Choosing
this course was error in light of the prevailing standards
under our case law. We therefore must remand to the
district court so that it may afford the parties the opportu-
nity to develop the question of whether WCS has been
prevented, because of its clients’ disabilities, from locating
34                                                 No. 04-1966

a satisfactory new facility.16


                         Conclusion
  For the foregoing reasons, we reverse the judgment of
the district court and remand for proceedings consistent
with this opinion. The City may recover its costs in this
court.
                                    REVERSED and REMANDED




  EASTERBROOK, Circuit Judge, concurring. One question
on which the parties have disagreed is whether 28 C.F.R.
§35.130(b)(7), which was promulgated under Title II of
the Americans with Disabilities Act, establishes an ac-
commodation requirement in addition to the statutory rules


16
  Because we have determined that the district court erred
in determining whether the accommodation was “necessary,” we
need not reach the question of whether its determination that the
accommodation was “reasonable” was error.
  Also, as noted above, see supra note 15, because the district
court resolved WCS’ claim on the failure of the City to offer a
reasonable accommodation, the court did not address WCS’
alternative theories of disparate impact and disparate treatment.
The district court is free to consider those claims on remand
should WCS ultimately fail with respect to its reasonable
accommodation claim.
No. 04-1966                                                    35

that prohibit disparate treatment and limit disparate impact.
The district judge said “yes,” the panel said “no,” and now
the en banc court says “yes.” Having written the panel’s
opinion saying “no,” see 413 F.3d 642, 646-47 (7th Cir. 2005),
I now join the en banc opinion saying “yes,” because further
consideration has led me to conclude that the right question
is what this regulation means rather than what label to
attach to its provisions.
  The regulation provides:
    A public entity shall make reasonable modifications
    in policies, practices, or procedures when the modi-
    fications are necessary to avoid discrimination on the
    basis of disability, unless the public entity can demon-
    strate that making the modifications would fundamen-
    tally alter the nature of the service, program, or activity.
A proposed accommodation is required only if it is “neces-
sary” to “avoid discrimination”. That an alteration in zoning
rules would be convenient or helpful to a plaintiff does not
make the change “necessary.” Moreover, “discrimination”
exists only if the zoning regulation (or other rule at issue)
hurts “handicapped people by reason of their handicap, rather
than . . . by virtue of what they have in common with other
people, such as a limited amount of money to spend” (slip
op. at 18, 21, 26-27 & 32, all quoting from Hemisphere
Building Co. v. Richton Park, 171 F.3d 437, 440 (7th Cir. 1999)
(emphasis in original)). That was the panel’s view as well.
413 F.3d at 646.
  In a brief amicus curiae filed at the court’s request, the Civil
Rights Division of the Department of Justice told us that this
regulation creates an accommodation requirement distinct
in the sense that disparate impact may be established by
case-specific as well as statistical evidence. In employment-
36                                                No. 04-1966

discrimination litigation under Title VII of the Civil Rights
Act of 1964 or the Age Discrimination in Employment Act,
a “disparate impact” means a statistically significant
adverse effect of a rule that is neutral in its terms. There is
no good reason, however, why a regulation may not take a
different approach to disparate-impact theories in disability-
discrimination cases, where the circumstances of the
affected persons may be so different—and the number of
zoning or housing-code rules so numerous—that statistical
analysis would be impractical. Title II does not specify a
regimen for disparate-impact analysis, which means that a
regulation requiring local zoning rules to yield when
“necessary” to avoid applicant-specific disparate impacts
that occur by reason of disability is a reasonable way to
implement the statute. So I accept the Civil Rights Division’s
reading of this regulation, and I understand the court’s
opinion to do so too.

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




                    USCA-02-C-0072—9-26-06
