Wilkison v. City of Arapahoe
926 N.W.2d 441
Neb.2019Background
- Brooke Wilkison is partially paralyzed from prior brain surgery and owns an American Staffordshire terrier (“Chewy”) he says provides emotional support and helps mitigate disability-related symptoms.
- The City of Arapahoe enacted a 2016 ordinance banning certain breeds (including Pit Bulls/Staffordshire Terriers) and making possession of banned breeds a misdemeanor; dogs licensed before Jan 1, 2017 were grandfathered.
- Chewy was not registered before the ordinance’s effective date; city enforcement officers told Brooke he must remove the dog.
- Brooke sued the City seeking a declaratory judgment and injunction, alleging the ordinance (as applied to him) violated 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, holding the ordinance would violate the FHA by blocking Brooke from mitigating his disability with an emotional assistance animal.
- The Nebraska Supreme Court reviewed de novo whether the FHA applied and whether Brooke proved the accommodation (keeping Chewy) was reasonable and necessary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the FHA apply to invalidate a municipal breed-ban ordinance as applied to a disabled resident? | Wilkison: FHA prohibits housing practices that discriminate on the basis of disability; the ordinance blocks his use of an emotional support animal. | Arapahoe: FHA exemption §3603(b)(1) for single-family homes bars FHA claims against the ordinance. | Court: FHA applies; §3603(b)(1) does not exempt a government zoning/ordinance from FHA claims. |
| Does §3603(b)(1) exempt the City from FHA coverage for a single-family residence? | Wilkison: §3603(b)(1) is meant for private owners, not municipal ordinances. | Arapahoe: The exemption covers single-family housing and thus shields the city’s ordinance as applied. | Court: Exemption was designed for private owners of few homes; it cannot be read to immunize municipal enactments—City not exempt. |
| Was allowing Wilkison to keep Chewy a reasonable accommodation under the FHA? | Wilkison: Chewy is an emotional assistance animal that mitigates his disability; denial is discriminatory. | Arapahoe: Ordinance still allows service animals and grandfathering; accommodation would undermine the ordinance’s purpose of limiting dangerous dogs. | Court: Accommodation would be reasonable in kind and scope and would not fundamentally alter ordinance; City did not show undue burden. |
| Was the accommodation necessary (essential) to afford equal opportunity to use and enjoy the dwelling? | Wilkison: Keeping Chewy is necessary for his equal enjoyment and functioning. | Arapahoe: Wilkison has alternatives (other non-banned dogs, already owned another dog); plaintiff must prove necessity. | Court: Wilkison failed to prove the accommodation was necessary/indispensable—no evidence Chewy was uniquely required; injunction reversed and remanded for unresolved constitutional claims. |
Key Cases Cited
- Fredericks Peebles v. Assam, 300 Neb. 670 (Neb. 2018) (state precedents on statutory interpretation and municipal enactments)
- Oxford House, Inc. v. City of Miami Beach, 514 U.S. 725 (U.S. 1995) (FHA to be construed broadly to effectuate fair housing)
- Revock v. Cowpet Bay West Condominium Ass’n, 853 F.3d 96 (3d Cir. 2017) (FHA reasonable accommodation analysis)
- Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531 (6th Cir. 2014) (plaintiff bears burden to prove reasonableness and necessity)
- Anderson v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015) (distinction between ADA service-animal standards and FHA treatment of emotional support animals)