Posted by: Patricia Salkin | November 6, 2018

Fed. Dist. Court in WI Finds FHA Claim Unripe where Variance Request for Emotional Support Farm Animals was Withdrawn Before a Final Decision was Made

This post was authored by Amy Lavine, Esq.

The availability of a reasonable accommodation to allow emotional support farm animals in a zoning district where only household pets were permitted was addressed by a federal district court in Wisconsin earlier this year. Although the property owner claimed that her goats and geese were necessary due to her medical disabilities, the court found that her claim was not yet ripe and declined to grant a preliminary injunction under the under the federal Fair Housing Act or Wisconsin’s Open Housing Law.

The plaintiff was a homeowner with a one-acre property that was zoned “community.” Due to various health problems she relied on several emotional support animals, including four miniature goats and up to six geese, all of which lived on her property. Just a few days after she provided the town with a doctor’s letter recommending that her emotion support animals provided benefits such reducing her anxiety, depression, and chronic pain, however, an anonymous person complained that she was keeping farm animals on her property in violation of the zoning ordinance, which only permitted household pets. She was issued a citation and several weeks later the county informed her that despite providing a letter from her doctor, she was still subject to the zoning restrictions on animals. When she submitted an application for a variance and conditional use permit several weeks later, the town planning commission and town board recommended denying her requests and rather than continue to seek approval from the county she opted instead to withdraw her application after a county official warned her that the county was likely to vote in line with the town’s recommendations. The plaintiff subsequently sent a letter to the county requesting a reasonable accommodation under the FHA, but the county responding by issuing her another zoning violation because despite withdrawing her application she had not removed her animals.

The federal District Court for the Western District of Wisconsin agreed with the town and the county that the plaintiff’s reasonable accommodation claim wasn’t ripe, as a final decision was never made on her variance and conditional use permit application. As the court noted, a variance would have allowed the plaintiff to keep her support animals, and while the town board and planning commission had recommended to deny her request, it was the county that had the ultimate authority to issue a final decision on the matter.

Even if the plaintiff’s reasonable accommodation claim had been ripe, the court also found that the evidence she had submitted was insufficient to prove that her requested accommodation was necessary. Despite having letters from her doctor and her therapist stating that she benefited from keeping goats and geese, the letters didn’t provide any details about how the plaintiff’s animals improved her specific disabilities or why she required farm animals rather than more typical domesticated pets, which were permitted under the zoning regulations. As a result, the court concluded, “plaintiff has failed to show the required causal connection between the treatment she requires for her disability and her requested accommodation.”

The district court issued a second order in October after allowing the plaintiff to brief the issue of ripeness. The court affirmed its previous ripeness holding for essentially the same reasons, but it also rejected the plaintiff’s futility claim because she failed to show that pursuing her application would have been fruitless. The county had the discretion to grant her variance request regardless of the recommendations to deny it made by the town board and planning commission, the court explained, and although a county official had warned the plaintiff that the county would probably adopt these recommendations for denial, this was neither a final decision nor any sort of formal or advisory opinion. The plaintiff might have also been able to negotiate some solution with the county, but because she voluntarily withdrew her variance request there was no evidence that such negotiations would have been futile.

Manzke v. Jefferson County, 2018 WL 3998035 (WD WI 8/21/2018), affirmed Manzke v. Jefferson County, 2018 WL 5095678 (WD WI 10/19/18).


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