Federal Court Permits Fair Housing Claim to Keep Six Emotional Support Chickens to Proceed to Trial
Has your condominium or homeowners association encountered a request for an emotional support animal under the Fair Housing Act? If not, you are likely to encounter a request in the future as requests for emotional support animals in community associations have been on the rise in recent years. Condominium and homeowners associations are subject to the Federal Fair Housing Act and state civil rights statutes, such as the Michigan Persons with Disabilities Civil Rights Act. Accordingly, it is important for community associations to understand the requirements of state and federal statutes when considering requests from owners or renters for a reasonable accommodation to keep an emotional support animal.
While requests for emotional support animals under the Fair Housing Act vary, a recent case from the Eastern District of Michigan, Whiteaker v City of Southgate, 66 NDLR P 136 (ED Mich, January 19, 2023), highlights some important considerations when faced with a request for multiple emotional support animals or non-traditional animals, such as chickens. In this case, the plaintiff alleged that he suffered from depression and anxiety and requested a reasonable accommodation to keep six chickens on his property. The City of Southgate had a zoning ordinance that prohibited property owners from keeping chickens on their property and denied the request for a reasonable accommodation. As will be discussed below, the federal court held that an issue of fact existed as to whether waiving the zoning ordinance to permit six chickens was a reasonable accommodation and allowed the case to proceed to trial.
Facts alleging disability discrimination under the Fair Housing Act and the Michigan Persons with Disabilities Civil Rights Act
In March 2021, Whiteaker and his family purchased and moved into a home in Southgate, Michigan. Whiteaker brought his chickens to his new home. On March 24, 2021, Whiteaker was issued a citation by the city for a violation of Ordinance 610.13 “Keeping of Certain Animals; Permit Required; Sale of Fowl and Rabbits.” The city ordinance stated as follows:
No person shall keep or allow to be kept within the City any cows, horses, pigs, goats, pigeons, or fowl or other domestic animals or insect, except birds, dogs, domestic felines or other harmless domestic pets.
Whiteaker appeared in the 28th District Court of Michigan to defend himself, and he claimed a right to maintain the chickens under Michigan’s Right to Farm Act. Shortly thereafter, Whiteaker learned that Michigan’s Right to Farm Act was inapplicable to his matter because the chickens and their coop were within 250 feet of a dwelling.
On May 6, 2021, the city issued Whiteaker a second citation. Whiteaker then attempted to obtain a permit for the chickens from the city clerk’s office, but he was told by a city employee that the permit application could not be found. Whiteaker has suffered from depression and anxiety for many years and claims the prospect of losing his chickens exacerbated these conditions. Whiteaker learned about emotional support animals (“ESAs”) and sought counseling from a mental health provider who conducted testing and diagnosed him with acute stress disorder.
Whiteaker then requested a waiver from complying with the city ordinance as a reasonable accommodation for his disability and provided the city a letter from his mental health provider as support. The city denied his request for a waiver and pursued the ordinance violation matter in the 28th District Court. Whiteaker then retained counsel and made a second request for a permit, variance, or waiver of Ordinance 610.13. The city also denied this second request.
Whiteaker sought a second opinion for his mental health treatment and was diagnosed with a major depressive disorder. Whiteaker’s conditions result in limitations of major life activities such as difficulties communicating, irritability, sleep disturbances and appetite problems. The mental health provider concluded that all six of Whiteaker’s chickens are ESAs and provided Whiteaker with documentation in support of this conclusion.
During litigation in the 28th District Court, the city conceded that Whiteaker is disabled and that a chicken is an acceptable emotional support animal. Whiteaker claimed that before the 28th District Court, the city only argued that having six chickens was unreasonable.
On December 13, 2021, Whiteaker, through his counsel, made a third request for an exemption to Ordinance 610.13 and provided the city with a supplemental report from Whiteaker’s mental health provider, which detailed his depression and anxiety and the resulting difficulties communicating, irritability, sleep disturbances, and appetite problems. The city denied this third request.
Whiteaker then filed a federal lawsuit, alleging violations of the Fair Housing Act and the Michigan Persons with Disabilities Civil Rights Act, because of the city’s denial of his requests for a reasonable accommodation. The city filed a motion for summary judgment, and as will be discussed below, the trial court denied the motion and allowed Whiteaker’s claims to proceed as it found that issues of fact existed as to Whiteaker’s claims.
Analysis of claims for Emotional Support Chickens under the Fair Housing Act and the Michigan Persons with Disabilities Civil Rights Act
The Eastern District of Michigan started its analysis by setting forth the standard to analyze disability discrimination claims under state and federal law, and held as follows:
… an FHA reasonable accommodation plaintiff must establish that he: (1) suffers from a disability within the meaning of the FHA, (2) he requested an accommodation or modification, (3) the defendant housing provider refused to make the accommodation, and (4) the defendant knew or should have known about the disability at the time of the refusal. Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531 (6th Cir. 2014).
…to establish a reasonable accommodation claim, a plaintiff is required to show the proposed accommodation is both reasonable and necessary to afford disabled persons an equal opportunity for enjoyment of the housing of his choice. Hollis, 760 F.3d at 540 (citing Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 794 (6th Cir. 1996)).
Reasonableness under the Fair Housing Act
The court started by analyzing whether a request to keep six chickens was “reasonable” to accommodate Whiteaker’s disability, and stated as follows:
“[T]he crux of a reasonable-accommodation … claim typically will be the question of reasonableness.” Forest City Residential Mgmt., Inc. ex rel. Plymouth Square Ltd. Dividend Hous. Ass’n v. Beasley, 71 F. Supp. 3d 715, 727 (E.D. Mich. 2014) (quoting Hollis, 760 F.3d at 541). To determine whether an accommodation is reasonable, the Court must weigh the burden the requested accommodation would place on the defendant against the benefits the accommodation will provide the plaintiff. Hollis, 760 F. 3d at 542. A reasonable accommodation is one which imposes “no fundamental alteration in the nature of a program” or “undue financial and administrative burdens.” Smith & Lee Assocs., Inc., 102 F.3d at 795. Finally, the burden is on the plaintiff to establish the reasonableness of an accommodation. Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1045 (6th Cir. 2001).
The evidence offered by Whiteaker in support of his request for a reasonable accommodation was as follows:
Whiteaker provided a letter from his mental health clinician in support of this claim. The letter stated that removal of the chickens will likely increase Whiteaker’s depression and anxiety symptoms. Whiteaker further argued that his requested accommodation is reasonable under the Fair Housing Act because it does not “impose an undue hardship or burden upon the entity making the accommodation … and would not undermine the basic purpose which the requirement seeks to achieve.” Whiteaker argued that (1) he complies with “the guidance established by the Michigan Department of Agriculture and Michigan State University School of Agriculture” for poultry management; (2) his accommodation poses no threat to the public at large; and (3) the city has “not taken any steps to mitigate any alleged potential public health consequences” despite their claimed concerns. Whiteaker thus claims that because his chickens are kept safely, according to guidance, and because the city has done nothing to mitigate the claimed risk, he imposes no burden on the city.
The city offered the following evidence in arguing that the request for six chicken was unreasonable:
The city provided evidence during discovery that chickens can carry pathogens that pose a threat to the public when maintained in close proximity to humans, per the Centers for Disease Control. The accommodation would thus place a burden on the city “to incur the expense of code enforcement and public health department personnel to mitigate” these public health consequences. In other words, Whiteaker’s requested accommodation imposes undue financial and administrative burdens on the city.
The city also argued that the Department of Housing and Urban Development’s (HUD) guidance on the issue of “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation” provides a higher burden on Whiteaker under the Fair Housing Act, which states as follows, “the requestor has the substantial burden of demonstrating a disability related therapeutic need for the specific animal or the specific type of animal.” Under that guidance, the city is permitted to “take reasonable steps to enforce the policy if the requestor obtains the animal before submitting the reliable documentation from a health care provider that reasonably supports the requestor’s disability-related need for the animal.” The HUD guidance also states, “that a reasonable accommodation for an assistance animal, including an emotional support animal, may be refused if the animal poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal.”
After analyzing the evidence offered by both parties, the court concluded that triable issues of fact existed and held as follows:
… the city argues that Whiteaker’s chickens force the city to expend its money and resources on sending code enforcement and public health department personnel to his home to confirm the chickens are not a danger to the public health. But the city provides only one document from the CDC to support its claims—and that guidance only states the potential dangers chickens can pose. The city also cites HUD guidance that states that a request for a reasonable accommodation may be denied if the animal poses a direct threat. But nowhere in its discovery or exhibits does the city cite any expert testimony, affidavits, or information to support its claims that Whiteaker’s chickens pose a danger or are a direct threat to public health in this instance.
Whiteaker provides a letter from his mental health provider stating the benefit his chickens provide him and that the removal of these chickens would worsen his disability. He also provides documentation of recommendations on how to keep chickens safely but produces no expert testimony or evidence to show he is keeping chickens safely in this case. In other words, Whiteaker claims a disability and provides evidence of this disability. The city claims to be burdened financially and administratively by Whiteaker’s disability but provides no supporting evidence. Whiteaker says he is keeping his chickens safely, and the city says he is not. These are questions of fact for the jury.
Necessity and Equal Opportunity for Enjoyment under the Fair Housing Act
The Eastern District also analyzed whether the request for six chickens as a reasonable accommodation was “necessary” to provide Whiteaker an opportunity to equally enjoy his property. The court set forth the standard as follows:
“The 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 resident from receiving the same enjoyment from the property as a non-disabled person would receive.” Hollis, 760 F.3d at 541.
Equal enjoyment is achieved when an accommodation mitigates the effects of a person’s disability allowing them to enjoy their property as a non-disabled person could. Anderson, 798 F.3d at 361.
In analyzing the above standard, the Court found that an issue of fact existed on the “necessity” and “equal enjoyment” elements, and held as follows:
Whiteaker provides evidence of his disability and his need for the chickens, and the city provides no evidence to the contrary. Again, Whiteaker points to the written statement from his mental health provider as to why maintaining the chickens is necessary to alleviate the symptoms of his disability. In fact, contrary to the city’s claim, Whiteaker’s mental health provider does explain why Whiteaker needs all six chickens. In her opinion, the removal of even one chicken would negatively impact Whiteaker’s depression and anxiety symptoms and increase the likelihood that Whiteaker’s daily functioning will decrease. In other words, without his chickens, Whiteaker claims he will not have equal use and enjoyment of his property, as a non-disabled person would.
The city again fails to produce any evidence to refute Whiteaker’s claims. The city provides no testimony, affidavits, or evidence of any kind in support of its claims. Instead, the city questions the therapeutic benefits of chickens and the quantity Whiteaker possesses. Questioning Whiteaker’s needs does not constitute valid evidence of a lack of necessity or equal opportunity. These are questions of fact for a jury, making summary judgment improper.
While the claims in Whiteaker v City of Southgate, 66 NDLR P 136 (ED Mich, January 19, 2023) involved a request for a reasonable accommodation by a property owner to a city under a zoning ordinance, requests for emotional support animals also frequently occur in a condominium and homeowners association. This case is an important lesson that requesting multiple emotional support animals or non-traditional animals will not automatically be deemed unreasonable or unnecessary under the Fair Housing Act. In the context of a traditional community association, the burden on a community association having six chickens in close quarters would likely be greater than the burden on an entire city. While it is certainly possible that the city will win this case at trial, it is important that a potential defendant in a Fair Housing case obtains sufficient evidence to support their position. Accordingly, if you are a condominium association, homeowners association, landlord, municipality, or student housing provider facing a Fair Housing claim, it is important to contact an attorney experienced with Fair Housing claims, as Fair Housing claims are often complicated and highly fact specific.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association law and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. Mr. Hirzel has been recognized as a Super Lawyer in Real Estate Law by Super Lawyers Magazine, a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine, and as a Best Lawyer in Real Estate Law by U.S News and World Report’s Best Lawyers Publication. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 986-2290 or firstname.lastname@example.org.