Wilkison v. City of Arapahoe , 302 Neb. 968 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/05/2019 09:06 AM CDT
- 968 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968Brooke Wilkison, individually and
on behalf of Brianna Wilkison,
a minor child, appellee, v. City
of A rapahoe, appellant.
___ N.W.2d ___
Filed April 25, 2019. No. S-18-196.
1. Declaratory Judgments. An action for declaratory judgment is sui
generis; whether such action is to be treated as one at law or one in
equity is to be determined by the nature of the dispute.
2. Ordinances: Zoning: Injunction: Equity. An action to declare an ordi-
nance void and to enjoin its enforcement is equitable in nature.
3. Declaratory Judgments: Equity: Appeal and Error. In reviewing an
equity action for a declaratory judgment, an appellate court tries factual
issues de novo on the record and reaches a conclusion independent of
the findings of the trial court, subject to the rule that where credible
evidence is in conflict on material issues of fact, the reviewing court
may consider and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over another.
4. Ordinances: Appeal and Error. Interpretation of a municipal ordinance
is a question of law, on which an appellate court reaches an independent
conclusion irrespective of the determination made by the court below.
5. Courts: Statutes: Ordinances. When reviewing preemption claims, a
court is obligated to harmonize, to the extent it legally can be done, state
and municipal enactments on the identical subject.
6. Statutes: Appeal and Error. The interpretation of statutes and regu-
lations presents questions of law which an appellate court reviews
de novo.
7. Federal Acts: Discrimination. The federal Fair Housing Act, as origi-
nally enacted in 1968, prohibited the denial of housing on the basis of
race, color, religion, or national origin.
8. ____: ____. The federal Fair Housing Act was amended in 1988 to pro-
tect against discriminatory practices on the basis of disability.
- 969 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 9689. Federal Acts: Discrimination: Constitutional Law. The stated policy
of the federal Fair Housing Act is “to provide, within constitutional
limitations, for fair housing throughout the United States.”
10. Courts: Federal Acts. When construing the federal Fair Housing Act,
courts are to give a generous construction to the act’s broad and inclu-
sive language.
11. Federal Acts. The federal Fair Housing Act’s exemptions must be nar-
rowly construed.
12. Federal Acts: Discrimination. The federal Fair Housing Act prohibits
both individuals and governmental entities from engaging in proscribed
forms of discrimination.
13. ____: ____. Prohibited discrimination under the federal Fair Housing
Act includes a refusal to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be
necessary to afford such person equal opportunity to use and enjoy
a dwelling.
14. Federal Acts: Claims: Proof. The ultimate burden to prove both the
reasonableness and the necessity of a requested accommodation remains
always with the plaintiffs asserting a reasonable accommodation claim
under the federal Fair Housing Act.
15. Federal Acts: Discrimination. To determine whether an accommoda-
tion under the federal Fair Housing Act is reasonable, the inquiry is
highly fact specific, requires balancing the needs of the parties, and
involves assessing both financial and administrative costs and burdens.
16. ____: ____. An accommodation under the federal Fair Housing Act
is reasonable if it is both efficacious and proportional to the costs to
implement it, and an accommodation is unreasonable if it imposes undue
financial or administrative burdens or requires a fundamental alteration
in the nature of the program.
17. Federal Acts: Discrimination: Proof. To show that an accommoda-
tion is necessary, a plaintiff in a case under the federal Fair Housing
Act must show that the accommodation was indispensable or essen-
tial to the plaintiff’s equal opportunity to use and enjoy his or her
dwelling.
Appeal from the District Court for Furnas County: James E.
Doyle IV, Judge. Reversed and remanded.
Kevin D. Urbom, Arapahoe City Attorney, for appellant.
Nathaniel J. Mustion, of Mousel, Brooks, Schneider &
Mustion, P.C., L.L.O., for appellee.
- 970 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
The City of Arapahoe, Nebraska, appeals the declaratory
judgment and injunction entered by the district court for
Furnas County enjoining Arapahoe from enforcing an ordi-
nance against Brooke Wilkison (Brooke) to prohibit his reten-
tion of a Staffordshire terrier at his home within the city limits
of Arapahoe. This order, in declaring the ordinance invalid
as applied to Brooke, determined that the ordinance would
violate the federal Fair Housing Act (FHA)1 by permitting a
discriminatory housing practice and precluding Brooke from
mitigating the ill effects of his handicap by living with his
emotional assistance animal. Arapahoe, on appeal, claims the
FHA does not apply to municipal ordinances, that it should
not have been enjoined from enforcing its ordinance against
Brooke, and that it was error to determine that it was a rea-
sonable accommodation under the FHA to allow Brooke to
keep the dog. For the reasons set forth herein, we reverse,
and remand.
BACKGROUND
In 1984, Brooke underwent brain surgery which resulted in
partial paralysis to the left side of his body. This paralysis and
its effects remain, and Brooke contends that his medical issues
cause him to be easily frustrated.
In 2015, Brooke got an American Staffordshire terrier—
what is commonly known as a pit bull—and brought him to
his home in Arapahoe. Brooke testified that the dog, named
“Chewy,” is a regular companion and provides him with sup-
port for dealing with the frustration he experiences as a result
of his physical limitations.
Arapahoe passed an ordinance in December 2016 relating
to “dangerous dogs.” Section 6-109 of the ordinance defined
1
See 42 U.S.C. §§ 3601 to 3619 (2012).
- 971 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968a “dangerous dog” as “any dog that has inflicted injury upon
a human being that required medical treatment by a physician
or any other licensed health care professional.” That section
also described prohibited certain breeds and stated:
The following breeds shall be prohibited and or banned
from being within the city limits of Arapahoe at any time.
These breeds are as follows: Pit Bulls & Staffordshire
Terriers, Rottweilers, and any cross breed that contains
one or more of those breeds. With reference to those who
own these breeds and have been licensed within the City
of Arapahoe prior to January 1st, 2017, the animal will
be grandfathered in as acceptable, however, in the event
that said animal is found to be at large the grandfather
status will be revoked and will be deemed prohibited at
that time.
Section 6-111 of the ordinance directed that the owner of a
prohibited dog is guilty of a Class IIIA misdemeanor, and
§ 6-112 of the ordinance instructed that a prohibited dog that
has inflicted injury “shall be immediately confiscated by an
animal control authority, placed in quarantine for the proper
length of time, and thereafter destroyed in an expeditious and
humane manner.”
Brooke’s dog was not registered with Arapahoe prior to
January 1, 2017. According to Brooke’s wife, she attempted
to register the dog but was refused due to incorrect paper-
work. In January, after the ordinance went into effect, a law
enforcement officer informed Brooke he would have to get rid
of the dog, because it was one of the prohibited breeds under
the ordinance.
Following the interaction with the law enforcement officer,
Brooke obtained a statement on a prescription pad from a
physician assistant, who is one of Brooke’s medical providers,
that recommended Brooke be able to keep the dog inside as a
therapy animal, given his disability. Brooke, individually and
on behalf of his daughter, then filed suit in the district court
seeking a declaratory judgment and an injunction to prevent
- 972 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968Arapahoe from implementing and enforcing the ordinance.
Brooke asserted three causes of action: (1) that the ordinance
violated the FHA which prohibits housing practices that dis-
criminate on the basis of disability; (2) that the ordinance vio-
lated the U.S. Constitution’s Equal Protection Clause, because
it singled out certain breed owners for disparate treatment
without any rational purpose for doing so; and (3) that the
ordinance violated the U.S. Constitution’s Due Process Clause,
because it deprived him of property without proof that the dog
was a vicious or dangerous animal.
After a trial in this matter, the court issued an order declar-
ing the ordinance invalid as applied to Brooke’s retention of
the dog in his home and enjoining Arapahoe from enforcing
the ordinance against Brooke. The court determined that, if
enforced against Brooke, the ordinance would violate the FHA
“by permitting a discriminatory housing practice, i.e., preclud-
ing Brooke from mitigating the ill effects of his handicap by
living with his emotional assistance animal.” Thus, the court
concluded that the ordinance was “preempted by the FHA in
the context of Brooke’s use of his emotional support animal.”
The court rejected Arapahoe’s argument that its ordinance was
exempted from the operation of the FHA. The court speci-
fied that nothing in the injunction or declaratory judgement
precludes Arapahoe from requiring licensing of any animal
kept within Arapahoe’s city limits by Brooke. Because it
granted relief based on the FHA, the court did not consider
the causes of action based on the Equal Protection and Due
Process Clauses.
ASSIGNMENTS OF ERROR
Arapahoe assigns, restated, that the district court erred in
entering the declaratory judgment and enjoining the city from
enforcing the ordinance by (1) holding that the FHA applies
to the ordinance enacted by the city and (2) determining that
keeping a specific animal prohibited by the city ordinance is a
reasonable and necessary accommodation under the FHA.
- 973 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968STANDARD OF REVIEW
[1-3] An action for declaratory judgment is sui generis;
whether such action is to be treated as one at law or one in
equity is to be determined by the nature of the dispute.2 An
action to declare an ordinance void and to enjoin its enforce-
ment is equitable in nature.3 In reviewing an equity action for
a declaratory judgment, an appellate court tries factual issues
de novo on the record and reaches a conclusion independent
of the findings of the trial court, subject to the rule that where
credible evidence is in conflict on material issues of fact, the
reviewing court may consider and give weight to the fact that
the trial court observed the witnesses and accepted one version
of the facts over another.4
[4-6] Interpretation of a municipal ordinance is a question
of law, on which we reach an independent conclusion irrespec-
tive of the determination made by the court below.5 When
reviewing preemption claims, a court is obligated to harmo-
nize, to the extent it legally can be done, state and municipal
enactments on the identical subject.6 The interpretation of
statutes and regulations presents questions of law which we
review de novo.7
ANALYSIS
A pplicability of FHA
[7-10] Arapahoe’s first assignment of error centers on the
applicability of the FHA. The FHA, as originally enacted in
2
Fredericks Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018).
3
Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005). See,
also, R & S Investments v. Auto Auctions, 15 Neb. App. 267, 725 N.W.2d
871 (2006).
4
Fredericks Peebles, supra note 2.
5
Malone v. City of Omaha, 294 Neb. 516, 883 N.W.2d 320 (2016).
6
Id.7
Id.- 974 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 9681968, prohibited the denial of housing on the basis of race,
color, religion, or national origin.8 The FHA was amended in
1988 to protect against discriminatory practices on the basis
of disability.9 The stated policy is “to provide, within consti-
tutional limitations, for fair housing throughout the United
States.”10 The U.S. Supreme Court has held that when constru-
ing the FHA, courts are to give a generous construction to the
FHA’s broad and inclusive language.11
The FHA defines a discriminatory housing practice as any
act that is unlawful under 42 U.S.C. § 3603 (effective dates
of certain prohibitions), 42 U.S.C. § 3604 (discrimination in
sale or rental of housing and other prohibited practices), 42
U.S.C. § 3605 (discrimination in residential real estate-related
transactions), or 42 U.S.C. § 3606 (discrimination in provi-
sion of brokerage services) of this title.12 Under 42 U.S.C.
§ 3617, “[i]t shall be unlawful to coerce, intimidate, threaten,
or interfere with any person in the exercise or enjoyment of,
or on account of his having exercised or enjoyed . . . any
right granted or protected by section[s] 3603, 3604, 3605,
or 3606 of this title.” Section 3617 sets forth that an inter-
ference claim does not demand a substantive violation of
§§ 3603 through 3606, but instead requires proof of three ele-
ments: (1) that the petitioner exercised or enjoyed “any right
granted or protected by” §§ 3603 through 3606, (2) that the
8
Texas Dept. of Housing and Community v. ICP, ___ U.S. ___, 135 S. Ct.
2507, 192 L. Ed. 2d 514 (2015); City of Edmonds v. Oxford House, Inc.,
514 U.S. 725, 115 S. Ct. 1776, 131 L. Ed. 2d 801 (1995).
9
Id.10
42 U.S.C. § 3601.
11
Oxford House, Inc., supra note 8. See, also, Revock v. Cowpet Bay West
Condominium Association, 853 F.3d 96 (3d Cir. 2017); U.S. v. University
of Nebraska at Kearney, 940 F. Supp. 2d 974 (D. Neb. 2013).
12
See 42 U.S.C. § 3602(f).
- 975 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968respond­ent’s conduct constituted interference, and (3) that a
causal connection existed between the exercise or enjoyment
of the right and the respondent’s conduct.13
In addition, 42 U.S.C. § 3615 provides:
Nothing in this subchapter shall be construed to invali-
date or limit any law of a State or political subdivision
of a State, or of any other jurisdiction in which this
subchapter shall be effective, that grants, guarantees, or
protects the same rights as are granted by this subchapter;
but any law of a State, a political subdivision, or other
such jurisdiction that purports to require or permit any
action that would be a discriminatory housing practice
under this subchapter shall to that extent be invalid.
In the instant case, Arapahoe does not assign the district
court erred in determining the elements of a § 3617 claim
existed. Instead, Arapahoe contends that § 3603(b) exempts it
from the requirements of the FHA.
The applicable language of 42 U.S.C. § 3603(b)(1) provides
that nothing in § 3604 (other than subsection (c)) shall apply
to “any single-family house sold or rented by an owner,”
provided that “such private individual owner does not own
more than three such single-family houses at any one time[.]”
Arapahoe argues that Brooke’s claim based on the FHA
cannot proceed, because the exemption under § 3603(b)(1)
applies to Brooke’s residence as a single-family house whose
owner owns less than three such single-family houses at any
one time.
[11] As noted above, the FHA must be broadly con-
strued to effectuate its purpose of providing “for fair housing
13
See, Revock, supra note 11; Hidden Village, LLC v. City of Lakewood,
Ohio, 734 F.3d 519 (6th Cir. 2013); Bloch v. Frischholz, 587 F.3d 771(7th Cir. 2009) (en banc); U.S. v. City of Hayward, 36 F.3d 832 (9th Cir.
1994).
- 976 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968throughout the United States.”14 For the same reason, the
FHA’s exemptions must be narrowly construed.15
[12] The FHA prohibits both individuals and governmental
entities from engaging in proscribed forms of discrimina-
tion.16 The statutory provision relied upon by Arapahoe was
designed to exempt individuals who own three or less “single-
family houses” from the strictures of the FHA, not to shield
governmental entities from FHA claims based on generally
applicable zoning ordinances on the basis that such claims
may involve “single-family houses.”17 If we read § 3603(b)
utilizing Arapahoe’s offered interpretation, then single-family
homeowners would be prohibited from seeking redress under
the FHA from local ordinances that discriminate against per-
sons with disabilities, while owners with more single-family
houses would retain such right. From a plain reading of
§ 3603(b), it is clear no such distinction was intended by the
FHA. For these reasons, Arapahoe was not exempt and cannot
rely on § 3603(b)(1) to defeat the FHA claim.
2. R easonable and Necessary
Accommodation Under FHA
Arapahoe contends that even if the exemption under
§ 3603(b)(1) does not apply to the case at bar, the district
court erred in enjoining enforcement of the ordinance against
Brooke. Arapahoe argues that under the FHA, it is required to
14
42 U.S.C. § 3601. See, also, Oxford House, Inc., supra note 8; Revock,
supra note 11; University of Nebraska at Kearney, supra note 11.
15
See 42 U.S.C. §§ 3601 and 3603(b). See, also, Hogar Agua y Vida en
el Desierto v. Suarez-Medina, 36 F.3d 177 (1st Cir. 1994); Massaro v.
Mainlands Section 1 & 2 Civic Ass’n, 3 F.3d 1472 (11th Cir. 1993);
McKivitz v. Township of Stowe, 769 F. Supp. 2d 803 (W.D. Pa. 2010);
Whisby-Myers v. Kiekenapp, 293 F. Supp. 2d 845 (N.D. Ill. 2003).
16
See, McKivitz, supra note 15; Spieth v. Bucks County Housing Authority,
594 F. Supp. 2d 584 (E.D. Pa. 2009); Dr. Gertrude A. Barber Center, Inc.
v. Peters Tp., 273 F. Supp. 2d 643 (W.D. Pa. 2003).
17
See 42 U.S.C. § 3603(b)(1). See, also, McKivitz, supra note 15; Trovato v.
City of Manchester, N.H., 992 F. Supp. 493 (D.N.H. 1997).
- 977 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968provide Brooke an accommodation that is both reasonable and
necessary, but that the injunction was neither. Arapahoe notes
that the ordinance did not prohibit Brooke from having a serv­
ice animal, but instead only prohibited ownership of certain
dog breeds. Moreover, the ordinance includes an exception for
those breeds if the dog was registered prior to the operative
date of the ordinance and that such was available to Brooke,
who did not fully avail himself of that option.
[13,14] Prohibited discrimination under the FHA includes
“a refusal to make reasonable accommodations in rules, poli-
cies, practices, or services, when such accommodations may
be necessary to afford such person equal opportunity to use
and enjoy a dwelling.”18 The ultimate burden to prove both the
reasonableness and the necessity of a requested accommoda-
tion remains always with the plaintiffs asserting a reasonable
accommodation claim under the FHA.19
[15,16] To determine whether an accommodation is reason-
able, the inquiry is highly fact specific, requires balancing the
needs of the parties, and involves assessing both financial and
administrative costs and burdens.20 An accommodation is rea-
sonable if it is both efficacious and proportional to the costs
to implement it, and an accommodation is unreasonable if it
imposes undue financial or administrative burdens or requires
a fundamental alteration in the nature of the program.21 “‘A
defendant must incur reasonable costs and take modest, affirm­
ative steps to accommodate the handicapped as long as the
accommodations sought do not pose an undue hardship or a
substantial burden.’”22
18
42 U.S.C. § 3604(f)(3)(B). See, also, Developmental Services of NE v. City
of Lincoln, 504 F. Supp. 2d 714 (D. Neb. 2007).
19
See Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531 (6th Cir.
2014).
20
See, Revock, supra note 11; Developmental Services of NE, supra note 18.
21
See Developmental Services of NE, supra note 18.
22
Hollis, supra note 19, 760 F.3d at 542.
- 978 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968Though Arapahoe argues that the dog was not a “service
dog” as defined by the Americans with Disabilities Act of
1990, such distinction is inconsequential. Unlike that act, the
FHA does not set forth minimum regulatory requirements
for animals to qualify as a reasonable accommodation.23
Under a ruling by the U.S. Department of Housing and Urban
Development, emotional support animals do not require task-
specific training.24
Arapahoe has not argued allowing such accommodation
would result in undue financial or administrative burdens.
Instead, Arapahoe’s arguments center on allegations that such
an accommodation would fundamentally alter the ordinance
and diminish the ability of the city to limit dangerous animals.
Other courts have found accommodations are reasonable
under the FHA, which include the use of an emotional sup-
port animal in one’s own home, despite the existence of a rule,
policy, or law prohibiting such an animal.25 In those instances,
even though the accommodations made exceptions to the gen-
eral programs, such exceptions were limited in scope and the
courts did not find the accommodations fundamentally altered
the existing rules, policies, or laws or the ability of the institu-
tions to enact and enforce them.
Similarly, in the case at hand, allowing Brooke to maintain
his dog in his house does not undermine Arapahoe’s ability
to protect its citizens against dangerous animals. Though the
U.S. Department of Housing and Urban Development allows
for the denial of a reasonable accommodation in the form
23
See, 28 C.F.R. app. A, § 35 (2018); Anderson v. City of Blue Ash, 798 F.3d
338 (6th Cir. 2015).
24
Warren v. Delvista Towers Condominium Ass’n, Inc., 49 F. Supp. 3d 1082(S.D. Fla. 2014), citing Pet Ownership for the Elderly and Persons With
Disabilities, 73 Fed. Reg. 63,834 (Oct. 27, 2008).
25
See, e.g., Castillo Condo. v. U.S. Dept. of Housing, 821 F.3d 92 (1st Cir.
2016); Anderson, supra note 23; Chavez v. Aber, 122 F. Supp. 3d 581(W.D. Tex. 2015); Bhogaita v. Altamonte Heights Condominium Ass’n,
765 F.3d 1277 (11th Cir. 2014).
- 979 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968of an assistance animal if the “‘animal’s behavior poses a
direct threat and its owner takes no effective action to con-
trol the animal’s behavior so that the threat is mitigated or
eliminated,’”26 nothing in the record indicates that Chewy has
been dangerous in the past or poses a direct threat to others.
The exception extended to Brooke is limited to Chewy’s being
kept in the house and does not preclude Arapahoe from requir-
ing Brooke to license the dog. The ordinance presently creates
an exception for dogs licensed prior to the effective date of
the ordinance.
Accommodating Brooke’s disability by allowing him to
maintain his dog would not fundamentally alter the ordi-
nance and diminish the ability of Arapahoe to limit danger-
ous animals.
Arapahoe also claims that the accommodation is unneces-
sary, because Brooke has other dog breed options which are
not prohibited by the ordinance. The FHA “links the term
‘necessary’ to the goal of equal opportunity. . . . Plaintiffs
must show that, but for the accommodation, they likely will
be denied an equal opportunity to enjoy the housing of their
choice.”27 “‘[T]he concept of necessity requires at a minimum
the showing that the desired accommodation will affirmatively
enhance a disabled plaintiff’s quality of life by ameliorating
the effects of the disability.’”28 As a result, “[t]he necessity
element is, in other words, a causation inquiry that examines
whether the requested accommodation or modification would
redress injuries that otherwise would prevent a disabled resi-
dent from receiving the same enjoyment from the property as a
non-disabled person would receive.”29
26
See Warren, supra note 24, 49 F. Supp. 3d at 1087.
27
Smith & Lee Associates v. City of Taylor, Mich., 102 F.3d 781, 795 (6th
Cir. 1996).
28
Id.29
Hollis, supra note 19, 760 F.3d at 541.
- 980 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968[17] But while a plaintiff must show that a requested accom-
modation enhances the enjoyment of his or her residence, it
does not follow that all accommodations that do so are neces-
sary. “The word [‘necessary’] implies more than something
merely helpful or conducive. It suggests instead something
‘indispensable,’ ‘essential,’ something that ‘cannot be done
without.’”30 In addition, the “FHA’s necessity requirement
doesn’t appear in a statutory vacuum, but is expressly linked to
the goal of ‘afford[ing] . . . equal opportunity to use and enjoy
a dwelling.’”31 Put simply, the FHA requires accommodations
that are necessary (or indispensable or essential) to achieving
the objective of equal housing opportunities between those
with disabilities and those without.32 As the foregoing discus-
sion illustrates, to show that the accommodation was necessary,
Brooke was required to show that the accommodation was
indispensable or essential to his equal opportunity to use and
enjoy his dwelling.
Here, Brooke has presented evidence showing he has a dis-
ability stemming from a previous surgery and manifesting in
partial paralysis. He has owned his dog since 2015 and testi-
fied that the dog is a regular companion that provides support
for dealing with the frustration Brooke experiences as a result
of his physical limitations. Specifically, Brooke testified that
Chewy gets him up and moving around and motivated, because
the dog needs to go outside to relieve itself; that an American
Staffordshire terrier is “the most loving dog in the world”;
and that when Brooke, who is a full-time college student, gets
30
Cinnamon Hills Youth Crisis v. St. George City, 685 F.3d 917, 923 (10th
Cir. 2012), quoting 10 The Oxford English Dictionary 276 (2d ed. 1989).
See, also, Vorchheimer v. Philadelphian Owners Association, 903 F.3d 100(3d Cir. 2018).
31
Cinnamon Hills Youth Crisis, supra note 30, 685 F.3d at 923, quoting 42
U.S.C. § 3604(f)(3)(B).
32
Id. See, also, Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir.
2008); Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597 (4th
Cir. 1997).
- 981 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968“brain fog” or “tired of studying,” Chewy comes over and
nudges Brooke to get his homework done. Brooke also testi-
fied that Chewy is like one of the family and that he keeps him
calm and helps with Brooke’s stress.
However, the evidence indicates that at the time of the hear-
ing, Brooke has suffered from his disability for nearly 35 years
and has lived in his current home for 3 years, but has owned
Chewy for only the last 2 years. In addition, the evidence indi-
cates that Brooke has owned another dog for almost 5 years.
Brooke offered no evidence that but for his requested accom-
modation of keeping Chewy, he would likely be denied an
equal opportunity to enjoy the housing of his choice.
Though Brooke offered the written statement from his
physician assistant recommending that given Brooke’s dis-
ability, he be able to keep the dog inside as a therapy dog,
the physician assistant offered no testimony about the spe-
cific benefits the dog provides. Further, there is no indication
that the physician assistant was aware of Brooke’s other dog,
or what benefits that dog, or any other dog not covered by
Arapahoe’s ordinance, could provide Brooke. In addition, the
physician assistant conducted no testing of Brooke’s mental
functioning or emotional well-being to determine what his
therapeutic needs may be or how Chewy was uniquely able to
meet them.
It is true that the FHA requires reasonable accommoda-
tions necessary for a disabled individual to receive the same
enjoyment from the property as a nondisabled person would
receive, not merely those accommodations that the disabled
individual cannot function without or for which no alternative
is available.33 However, the FHA’s necessity element requires
that an accommodation be essential to the equal enjoyment
from the property, not just preferable.34 The plain meaning
33
See, Anderson, supra note 23; Developmental Services of NE, supra
note 18.
34
Vorchheimer, supra note 30.
- 982 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968of “necessary” requires courts to consider the alternatives
on offer.35
We find that Brooke failed to prove that an accommodation
from Arapahoe’s ban on certain breeds of dogs was essential to
Brooke’s equal enjoyment of his property. Assuming without
deciding that it is necessary for Brooke to have an emotional
support dog, he did not show that to have the equal oppor-
tunity to use and enjoy his dwelling, it was essential that he
be allowed to keep a dog banned by Arapahoe’s ordinance.
Brooke already owned another dog, and the ordinance cov-
ered only certain breeds of dogs. Brooke failed to prove that
other dogs not covered by the ordinance could not provide
comparable therapeutic benefit to Brooke with regard to his
disability. No evidence was offered that Chewy provided more
support than Brooke’s other dog or other dogs not covered
by the ordinance, and Brooke did not testify that Chewy was
a better option, much less essential to his enjoyment of his
residence. Nothing in the FHA gives Brooke a right to his
preferred option.
Based upon the record before us, Brooke has failed to meet
his burden of proof that his requested accommodation is neces-
sary for him to receive the same enjoyment from his home as a
nondisabled person would receive.
3. Brooke’s Other Claims for R elief
In his complaint, Brooke raised two additional causes of
action: violations of the Equal Protection and Due Process
Clauses of the 14th Amendment to the U.S. Constitution.
However, the district court did not address Brooke’s con-
stitutional claims, because it found Brooke was entitled to
relief on his first claim that the ordinance, as applied, vio-
lated his rights under the FHA. As a result, this matter must
be remanded to the district court for consideration of the two
remaining claims.
35
Id.- 983 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WILKISON v. CITY OF ARAPAHOE
Cite as 302 Neb. 968CONCLUSION
In consideration of all the above, the district court erred in
entering a declaratory judgment and enjoining Arapahoe from
enforcing the ordinance as applied to Brooke. Arapahoe was
not exempt by 42 U.S.C. § 3603(b)(1) from Brooke’s claims
under the FHA; however, Brooke failed to show that allowing
him to retain “Chewy” in his home was necessary.
R eversed and remanded.