concurring and dissenting:
I concur in the majority’s determination that the district court did not err when it required Foley Estates Vineyard and Winery, LLC, to make changes to the interior of its building pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12181-12189 (“ADA”). However, I dissent from the majority’s reversal of the district court’s order denying a demand that Foley make the proposed exterior changes.
It is important to note that this is not a case where Foley sought to construct a new facility. See 42 U.S.C. § 12183(a)(1). Nor is it a case where Foley sought to alter an old facility. See id. § 12183(a)(2). It is, instead, a case where Foley was not seeking to make any change, but Disability Rights Enforcement Education Services: Helping You Help Others (hereafter “Disability Rights”) demanded that changes be made because the failure to do so would be discriminatory. See id. 12182(b)(2)(A)(iv). However, a mere failure to remove an architectural barrier discriminatory only “where such remov-is readily achievable.” Id. In other words, the mere existence of the barrier does not bespeak wrongdoing; it only be*1051comes wrongful if removal can be readily achieved.
Barrier removal is readily achievable when it is “easily accomplishable and able to be carried out without much difficulty or expense.” Id. § 12181(9). That definition is extremely important. It imposes a much less stringent standard upon owners of existing properties than that imposed upon owners who undertake new construction and are required to show structural impracticability in order to avoid violating the ADA. See id. § 12188(a)(1). It is also less stringent than the “maximum extent feasible” standard imposed upon owners who seek to alter their facilities. See id. § 12183(a)(2).
In determining ready achievability, “the nature and cost of the action needed” must be taken into account. Id. § 12181(9)(A). Furthermore, because it was never intended that the nation’s architectural heritage be destroyed under the banner of readily achievable accessibility, special consideration is given to buildings that “are designated as historic under State or local law.” 28 C.F.R. § 36.405(a). As to those, it is important to avoid changes that would “threaten or destroy the historic significance of the building....” Id. § 36.405(b). As the Department of Justice puts it: “Barrier removal would not be considered ‘readily achievable’ if it would threaten or destroy the historic significance of a building or facility that is ... designated as historic under State or local law.” Dep’t of Justice, ADA Title III Technical Assistance Manual: Covering Pub. Accommodations & Commercial Facilities, § III— 4.4200; see also 16 U.S.C. § 470f; Nondiscrimination on the Basis of Disability by Pub. Accommodations & in Commercial Facilities, 56 Fed.Reg. 35,544, 35,568-69 (July 26, 1991). It is through that lens that we must review the district court’s decision in this case because the Foley building in question is a Craftsman house which has been designated as a Place of Historic Merit by the Santa Barbara County Historic Landmark Commission. Nobody doubts that.
When that proper method of examining the district court’s determination is used, it is apparent that the district court did not clearly err1 when, based on the record before it, the court determined that the changes suggested by Disability Rights would, in fact, severely impact or destroy the historic significance of Foley’s building. In reaching that conclusion, the court relied upon the unrebutted evidence from an . expert architectural historian, Dr. Pamela Post, who testified to that effect and added that if the suggested changes had been made previously, they would have made the designation of the house as a Place of Historic Merit problematic. She, by the way, is the person who presented the initial report that supported the designation of the property in the first place.
But, argues Disability Rights, the district court was not permitted to make that finding. Why? Well, Disability Rights points to the fact that the regulation on removal of barriers states that when measures are taken to comply with readily achievable barrier removal requirements, any alterations made are to comply with 28 C.F.R. § 36.405(a) “for the element being altered.” 28 C.F.R. § 36.304(d)(1). Of course, that is no surprise because if a change is made, it becomes an alteration and ought to then make the property accessible. But, to state that the intent of the regulation is to make barrier removal essentially the same as voluntary alteration is to conflate those two different concepts by making the very threshold for removability the same as the standard for alteration. That cannot have been the intent of the regulation.
*1052Leaving that objection aside, however, Disability Rights’ second step is even more problematic. Having been referred to 28 C.F.R. § 36.405, we should, says Disability Rights, then note that § 36.405 further refers to 28 C.F.R. Pt. 36, app. A (hereafter “Appendix A”). And, notes Disability Rights, § 4.17(2)(b) of Appendix A states that when making alterations to historic buildings the entity (here Foley) “should consult with the State Historic Preservation Officer.” What Disability Rights bypasses is the clear definition of “should” as used in Appendix A. As opposed to “may”2 and “shall,”3 the word “should” by definition “[djenotes an advisory specification or recommendation.” See Appendix A § 3.4. I fail to see how or why the existence of that recommendation of a possible course of action would preclude a district court from taking direct expert testimony and making a finding on the effect of a proposed change on the historic significance of the property in question. Thus, the claim that the district court could not make a finding on the issue must fail.
Disability Rights also raises questions about whether it had any burden to propound a prima facie case that included an element regarding the effect of its proposed changes on the historic significance of the property. Other courts have indicated that plaintiffs, like Disability Rights, do have that obligation. See, e.g., Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1273-75 (11th Cir.2006); Colo. Cross Disability Coal. v. Hermanson Family Ltd., 264 F.3d 999, 1004-07 (10th Cir.2001); Speciner v. Nations-Bank, N.A., 215 F.Supp.2d 622, 632 (D.Md.2002). However, I see no need to resolve that issue in this case. The district court decided the question of ready aehievability after a trial. Thus, any shifting burdens of production are of no import. Cf. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509-11, 113 S.Ct. 2742, 2748-49, 125 L.Ed.2d 407 (1993) (holding that a burden shifting presumption “simply drops out of the picture” once the party comes forward with evidence). Here the district court received all evidence that the parties chose to put forward, and made a finding that there would be a deleterious impact upon the historic significance of the property. No more was needed, and the fact that Disability Rights did not put forth any historic significance evidence of its own, expert or otherwise, is fatal to its position. See, e.g., Gathright-Dietrich, 452 F.3d at 1275; Colorado Cross, 264 F.3d at 1009.
In short, as I see it, the district court’s perspicacity and care led it to the correct result in this case. Its decision should be affirmed.
Thus, I concur in part and respectfully dissent in part.
. See Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 837 (9th Cir.2007).
. Appendix A § 3.4.
. Id.