Posted by: Patricia Salkin | November 22, 2019

Fed. Dist. Court in WI Dismisses Township as Defendant in Fair Housing Amendments Act and Wisconsin Open Housing Law Suit Over Support Animals

This post was authored by Raymond Fragola, ’20, Touro Law Center 

The plaintiff, Sara Manzke filed suit against Jefferson County and the Town of Ixonia, Wisconsin on the grounds she was discriminated against because of her disability when she was denied an application for a zoning variance and a conditional use permit for the accommodation of emotional support animals.  The plaintiff suffers from intestinal cystitis, depressive disorder, anxiety disorder, chronic pain, fatigue and muscle weakness.  Her disabilities limit her daily activities including her ability to leave her home, attend school, and manage her physical needs.  The plaintiff, in accordance with a prescription from her physician sought the support of emotional support animals and as a result, has four miniature goats and six geese residing on her property.  The plaintiff’s property is zoned “community” under Jefferson County zoning ordinance, which the Town of Ixonia has adopted under Wisconsin Statute Chapters fifty-nine and sixty.  After the filing of an anonymous complaint about the animals on the plaintiff’s property, the Jefferson County Zoning and Sanitation Department issued the plaintiff a County Notice of Ordinance Violation on August 31, 2017, citing the plaintiff for being in violation of the County zoning ordinance and gave the plaintiff thirty days to remove the animals from the property or face a possible fine of $200.50 for each day the violation continued.  The plaintiff responded to the County by providing evidence of her disability and requested a reasonable accommodation under the Fair Housing Act.  The County responded by issuing two additional citations on November 13, and December 13, 2017.

 

In February 2018, the plaintiff filed for a variance and conditional use permit which was reviewed by the Town of Ixonia Planning Commission.  The Planning Commission recommended to the Town Board that it deny the plaintiff’s application for variance and was silent on the conditional use permit request.  The Town Board heard the plaintiff’s requests at a public hearing and voted that Jefferson County deny the variance and based on that denial took no action on the conditional use permit.  In the record of the hearing at least one member of the Town Planning Commission specifically asserted the Fair Housing Act did not apply to zoning laws.  After this denial the plaintiff was asked by the County how she wanted to proceed, she could either withdraw her application or proceed with the process to the County level, plaintiff was warned that the Town’s decision is usually an indicator of what will happen at the county level.  The plaintiff was offered no other means for requesting a reasonable accommodation from the zoning ordinance as neither the County nor the Town has such a process.  The plaintiff withdrew her application.  After the application withdrawal, the County continued to seek enforcement of the zoning ordinance and the plaintiff continued to assert her rights under the Fair Housing Act.  The plaintiff re-submitted her application for a variance and conditional use permit which the Town re-affirmed its original position without a public hearing.  At a public hearing of the Jefferson County Zoning Board of Adjustment, the plaintiff’s application for a variance was denied and because of this, her request for a conditional use permit would not be considered.

 

The Fair Housing Amendments Act makes it unlawful to “discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap.”  Valencia v. City of Springfield, Illinois, 883 F.3d 959, 967 (7th Cir. 2018).  The Act applies to municipal zoning decisions. (Id.)  Further, the Act requires public entities “to reasonably accommodate a disabled person by making changes in the rules, policies, practices, or services as is necessary to provide that person with access to housing that is equal to that of those who are not disabled.”  Good Sheppard Manor Foundation Inc. v. City of Momence, 323 F.3d 557, 561 (7th Cir. 2003).  The defendant, Town of Ixonia, argued that it does not have the authority to provide the plaintiff with the requested relief because the Town is subject to the County’s zoning ordinance and does not have the authority to change or repeal the ordinance.  Essentially, the Town of Ixonia argues that the zoning ordinance is not its to waive.  The parties agreed that the Jefferson County Board of Supervisors is responsible for the enactment, amendment, and repeal of the Jefferson County land use ordinances and the County Zoning Adjustment Board is responsible for hearing and deciding administrative appeals.  It was the County and not the Town which issues the notice of violation.  The Court held that the role the Town plays in the appeals process is that it may provide a recommendation to the County as part of a resident’s application, but it is the County which renders the final decision.  Though the Town recommended denial of plaintiff’s application, the County had no obligation to follow the recommendation, and the Town had no authority to continue pursuing the matter.  As a result, the Court held that the plaintiff failed to identify any statutory authority allowing the Town to exercise general zoning authority that is not subject to the County’s control and approval.  Based on the foregoing facts and reasoning, the Court dismissed the Town of Ixonia as a defendant to the lawsuit.

Manzke v Jefferson County and Town of Ixonia, 2019 WL 6037379 (WD WI 11/14/2019)


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