Posted by: Patricia Salkin | October 19, 2018

Fed. Dist. Court in WI Finds Fair Housing Amendments Act Claim was Not Ripe

This post was authored by Matthew Loeser, Esq.

This case arose from related civil actions involving alleged violations of Jefferson County zoning ordinances based on the presence of four miniature goats and two geese on property owned by Joshua Pernat and Sara Manzke. In the first civil action, plaintiff Sara Manzke brought claims under the Fair Housing Amendments Act and Wisconsin’s Open Housing Law, contending that defendants Jefferson County and Town of Ixonia discriminated against her because of her disability when they denied her applications for a zoning variance and conditional use permit to accommodate her emotional support animals. In the second civil action, defendants Manzke and Pernat filed a notice of removal of a small claims action filed by plaintiff Jefferson County in the Circuit Court for Jefferson County, in which the county sought monetary sanctions for alleged violations of the zoning ordinance.

At the outset, the court noted that while plaintiff pointed out that two federal circuit courts of appeals have held that a violation under the Federal Housing Amendments Act occurs “when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings,” the Court of Appeals for the Seventh Circuit has not reached a similar conclusion.

Plaintiff contended that the “Town’s denial foretold a denial by the County,” and any further appeal to the county would have been futile since she had been informed by a member of the town planning commission and the town’s attorney that the Federal Housing Amendments Act did not apply to zoning laws. The court found that even though plaintiff was told by Matt Zangl in the county’s zoning department that the town’s refusal to recommend the variance was a “good indicator” of what the county would do, he was not the final decision maker and was not giving plaintiff a formal or advisory opinion. Additionally, the county had no obligation to follow the town’s recommendation. Finally, plaintiff might have been able to negotiate with the county or modify her request to satisfy both her needs and those of the county. Accordingly, the court held plaintiff’s Fair Housing Amendments Act accommodation claim was not ripe claim for review and had to be dismissed for lack of subject matter jurisdiction. As the court found that Manzke had not stated a federal claim, defendants Manzke and Pernat were unable to satisfy the prerequisites for removing the small claims action from state court.

Manzke v Jefferson County, 2018 WL 5095678 (WD WI 10/19/2018)

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