Guenther v. Walnut Grove Hillside Condo. Regime No. 3, 309 Neb. 655

Background:

Christine Guenther owns a condominium in the Walnut Grove Hillside regime; her adult daughter N.G. (who lives part-time with Guenther) has diagnosed major depressive disorder and anxiety and uses two emotional support dogs.
In 2018 Guenther sought permission to construct a fence through a portion of the regime’s general common element (or repair an existing partial fence) to let the dogs safely use an outdoor area; she offered to pay for the fence.
Walnut Grove denied the request, citing bylaws that prohibit partitioning or altering general common elements, and proposed alternatives (invisible underground fence, privacy fence around the patio, tethering, or use of a neighbor’s fenced yard).
Guenther sued under the federal and Nebraska Fair Housing Acts claiming Walnut Grove refused a reasonable accommodation; at bench trial the district court found Guenther failed to prove N.G. is a ‘‘handicapped person’’ under the FHA and failed to prove the fence was necessary to afford equal opportunity to use and enjoy the dwelling.
On appeal the Nebraska Supreme Court affirmed, holding Guenther did not meet her burden to prove the requested accommodation was necessary; available alternatives and lack of evidence of imminent danger to the dogs undercut necessity.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether N.G. is a "handicapped person" under the FHA	Guenther: N.G.’s diagnosed major depressive and anxiety disorders and benefit from emotional support animals qualify her as handicapped	Walnut Grove: Insufficient proof that her conditions substantially limit a major life activity	Court: District court did not err; plaintiff failed to prove substantial limitation and thus did not meet FHA definition on record facts
Whether the requested fence was "necessary" to afford equal opportunity	Guenther: A fenced yard is essential to alleviate N.G.’s anxiety about dogs’ safety and thus necessary	Walnut Grove: Fence violates bylaws and alternatives are available that achieve equal opportunity	Court: Held not necessary; plaintiff must prove accommodation is indispensable and she failed to do so given alternatives and lack of evidence of risk
Proper burden-shifting for reasonable accommodation claims	Guenther: Court should apply burden-shifting so defendant must show undue hardship after plaintiff shows facial reasonableness	Walnut Grove: Burden remains with plaintiff at trial to prove reasonableness and necessity	Court: Held Wilkison controls; at trial plaintiff retains ultimate burden to prove both reasonableness and necessity
Whether defendant failed to show requested accommodation unreasonable and entitlement to fees	Guenther: Walnut Grove did not prove the fence is unreasonable; sought fees and costs	Walnut Grove: Alternatives mean plaintiff’s preferred accommodation is unnecessary; sought attorney fees as prevailing party	Court: Did not reach reasonableness in detail because necessity not proved; denied consideration of fees as premature

Key Cases Cited

Wilkison v. City of Arapahoe, 302 Neb. 968 (Neb. 2019) (sets Nebraska standards and burdens for FHA reasonable accommodation claims)
US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (discusses burden-shifting and reasonable accommodation analysis in employment context)
Bhogaita v. Altamonte Heights Condominium Ass’n, 765 F.3d 1277 (11th Cir. 2014) (accommodation necessity tied to alleviating disability effects to achieve equal housing opportunity)
Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531 (6th Cir. 2014) (necessity element described as causation inquiry whether accommodation would redress exclusion)
Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d 100 (3d Cir. 2018) (courts must consider effective alternatives when assessing necessity)