Wilkison v. City of Arapahoe
302 Neb. 968
| Neb. | 2019Background
- Plaintiff Brooke Wilkison is a long‑term resident of Arapahoe who suffered partial left‑side paralysis after 1984 brain surgery and owns an American Staffordshire terrier ("Chewy") he says provides emotional support.
- In December 2016, the City of Arapahoe adopted a "dangerous dogs" ordinance that bans certain breeds (including Pit Bulls and Staffordshire Terriers) unless licensed before January 1, 2017; possession of a prohibited dog is a misdemeanor and dogs that injure people may be destroyed.
- Brooke’s dog was not registered before the ordinance’s effective date; a city officer told him he would have to remove the dog.
- Brooke obtained a note from a physician assistant describing the dog as a therapy/emotional support animal and sued the city for declaratory and injunctive relief under the federal Fair Housing Act (FHA), and also raised Equal Protection and Due Process claims.
- The district court enjoined enforcement of the ordinance as applied to Brooke, concluding enforcement would violate the FHA by denying a reasonable accommodation; the City appealed.
Issues
| Issue | Plaintiff's Argument (Wilkison) | Defendant's Argument (City of Arapahoe) | Held |
|---|---|---|---|
| Does the FHA apply to invalidate the city ordinance as applied to Brooke? | FHA prohibits discrimination based on disability; the ordinance, as applied, interferes with his right to a reasonable accommodation (emotional support animal). | The FHA’s §3603(b)(1) exemption for owners of single‑family houses removes the ordinance from FHA reach; city actions should not be displaced. | FHA applies; §3603(b)(1) does not exempt a municipality from FHA challenges to generally applicable local ordinances. (City not exempt.) |
| Was allowing Brooke to keep Chewy a "reasonable" accommodation under the FHA? | Allowing Chewy to remain in the home is a limited, efficacious accommodation that does not impose undue burden or fundamentally alter the ordinance’s purpose. | Allowing a banned breed undermines the city’s ability to regulate dangerous animals and would fundamentally alter the ordinance. | Accommodation could be reasonable in kind; court found it would not fundamentally alter the ordinance. |
| Was the requested accommodation "necessary" (indispensable) to afford equal opportunity to use and enjoy the dwelling? | Chewy provides emotional/therapeutic benefits that ameliorate Brooke’s disability and thus is necessary. | Brooke already had another dog and other non‑prohibited breeds are available; he failed to prove Chewy was essential. | Held for the City: Brooke failed to prove the accommodation was necessary/indispensable—he did not show Chewy was essential compared to alternatives. |
| What happens to Brooke’s unaddressed constitutional claims (Equal Protection, Due Process)? | These claims remain and were pleaded below. | City urged review of all claims or remand. | Trial court’s judgment reversed and case remanded for consideration of the constitutional claims. |
Key Cases Cited
- City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995) (FHA should be construed generously to effectuate fair housing).
- Revock v. Cowpet Bay West Condominium Ass’n, 853 F.3d 96 (3d Cir. 2017) (interpreting FHA reasonable‑accommodation principles).
- Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531 (6th Cir. 2014) (plaintiff bears burden to prove necessity and reasonableness of accommodation).
- Cinnamon Hills Youth Crisis v. St. George City, 685 F.3d 917 (10th Cir. 2012) (discussing "necessary" as meaning indispensable/essential for FHA).
- Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597 (4th Cir. 1997) (FHA accommodations analysis and limits on fundamental alteration defense).