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Wilkison v. City of Arapahoe

Supreme Court of Nebraska

April 25, 2019

Brooke Wilkison, individually and on behalf of Brianna Wilkison, a minor child, appellee,
City of Arapahoe, appellant.

         1. Declaratory Judgments. An action for declaratory judgment is suigeneris; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.

         2. Ordinances: Zoning: Injunction: Equity. An action to declare an ordinance void and to enjoin its enforcement is equitable in nature.

         3. Declaratory Judgments: Equity: Appeal and Error. In reviewing an equity action for a declaratory judgment, an appellate court tries factual issues de novo on the record and reaches a conclusion independent of the findings of the trial court, subject to the rule that where credible evidence is in conflict on material issues of fact, the reviewing court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

         4. Ordinances: Appeal and Error. Interpretation of a municipal ordinance is a question of law, on which an appellate court reaches an independent conclusion irrespective of the determination made by the court below.

         5. Courts: Statutes: Ordinances. When reviewing preemption claims, a court is obligated to harmonize, to the extent it legally can be done, state and municipal enactments on the identical subject.

         6. Statutes: Appeal and Error. The interpretation of statutes and regulations presents questions of law which an appellate court reviews de novo.

         7. Federal Acts: Discrimination. The federal Fair Housing Act, as originally enacted in 1968, prohibited the denial of housing on the basis of race, color, religion, or national origin.

         8.__:___. The federal Fair Housing Act was amended in 1988 to protect against discriminatory practices on the basis of disability.

         [302 Neb. 969] 9. Federal Acts: Discrimination: Constitutional Law. The stated policy of the federal Fair Housing Act is "to provide, within constitutional limitations, for fair housing throughout the United States."

         10. Courts: Federal Acts. When construing the federal Fair Housing Act, courts are to give a generous construction to the act's broad and inclusive language.

         11. Federal Acts. The federal Fair Housing Act's exemptions must be narrowly construed.

         12. Federal Acts: Discrimination. The federal Fair Housing Act prohibits both individuals and governmental entities from engaging in proscribed forms of discrimination.

         13.___:___. Prohibited discrimination under the federal Fair Housing Act includes a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

         14. Federal Acts: Claims: Proof. The ultimate burden to prove both the reasonableness and the necessity of a requested accommodation remains always with the plaintiffs asserting a reasonable accommodation claim under the federal Fair Housing Act.

         15. Federal Acts: Discrimination. To determine whether an accommodation under the federal Fair Housing Act is reasonable, the inquiry is highly fact specific, requires balancing the needs of the parties, and involves assessing both financial and administrative costs and burdens.

         16.___:___ . An accommodation under the federal Fair Housing Act is reasonable if it is both efficacious and proportional to the costs to implement it, and an accommodation is unreasonable if it imposes undue financial or administrative burdens or requires a fundamental alteration in the nature of the program.

         17. Federal Acts: Discrimination: Proof. To show that an accommodation is necessary, a plaintiff in a case under the federal Fair Housing Act must show that the accommodation was indispensable or essential to the plaintiff's equal opportunity to use and enjoy his or her dwelling.

          Appeal from the District Court for Furnas County: James E. Doyle IV, Judge.

          Kevin D. Urbom, Arapahoe City Attorney, for appellant.

          Nathaniel J. Mustion, of Mousel, Brooks, Schneider & Mustion, PC, L.L.O., for appellee.

         [302 Neb. 970] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          PER CURIAM.

         The City of Arapahoe, Nebraska, appeals the declaratory judgment and injunction entered by the district court for Furnas County enjoining Arapahoe from enforcing an ordinance against Brooke Wilkison (Brooke) to prohibit his retention of a Staffordshire terrier at his home within the city limits of Arapahoe. This order, in declaring the ordinance invalid as applied to Brooke, determined that the ordinance would violate the federal Fair Housing Act (FHA)[1] by permitting a discriminatory housing practice and precluding Brooke from mitigating the ill effects of his handicap by living with his emotional assistance animal. Arapahoe, on appeal, claims the FHA does not apply to municipal ordinances, that it should not have been enjoined from enforcing its ordinance against Brooke, and that it was error to determine that it was a reasonable accommodation under the FHA to allow Brooke to keep the dog. For the reasons set forth herein, we reverse, and remand.


         In 1984, Brooke underwent brain surgery which resulted in partial paralysis to the left side of his body. This paralysis and its effects remain, and Brooke contends that his medical issues cause him to be easily frustrated.

         In 2015, Brooke got an American Staffordshire terrier- what is commonly known as a pit bull-and brought him to his home in Arapahoe. Brooke testified that the dog, named "Chewy," is a regular companion and provides him with support for dealing with the frustration he experiences as a result of his physical limitations.

         Arapahoe passed an ordinance in December 2016 relating to "dangerous dogs." Section 6-109 of the ordinance defined [302 Neb. 971] a "dangerous dog" as "any dog that has inflicted injury upon a human being that required medical treatment by a physician or any other licensed health care professional." That section also described prohibited certain breeds and stated:

The following breeds shall be prohibited and or banned from being within the city limits of Arapahoe at any time. These breeds are as follows: Pit Bulls & Staffordshire Terriers, Rottweilers, and any cross breed that contains one or more of those breeds. With reference to those who own these breeds and have been licensed within the City of Arapahoe prior to January 1st, 2017, the animal will be grandfathered in as acceptable, however, in the event that said animal is found to be at large the grandfather status will be revoked and will be deemed prohibited at that time.

         Section 6-111 of the ordinance directed that the owner of a prohibited dog is guilty of a Class IIIA misdemeanor, and § 6-112 of the ordinance instructed that a prohibited dog that has inflicted injury "shall be immediately confiscated by an animal control authority, placed in quarantine for the proper length of time, and thereafter destroyed in an expeditious and humane manner."

         Brooke's dog was not registered with Arapahoe prior to January 1, 2017. According to Brooke's wife, she attempted to register the dog but was refused due to incorrect paperwork. In January, after the ordinance went into effect, a law enforcement officer informed Brooke he would have to get rid of the dog, because it was one of the prohibited breeds under the ordinance.

         Following the interaction with the law enforcement officer, Brooke obtained a statement on a prescription pad from a physician assistant, who is one of Brooke's medical providers, that recommended Brooke be able to keep the dog inside as a therapy animal, given his disability. Brooke, individually and on behalf of his daughter, then filed suit in the district court seeking a declaratory judgment and an injunction to prevent [302 Neb. 972] Arapahoe from implementing and enforcing the ordinance. Brooke asserted three causes of action: (1) that the ordinance violated the FHA which prohibits housing practices that discriminate on the basis of disability; (2) that the ordinance violated the U.S. Constitution's Equal Protection Clause, because it singled out certain breed owners for disparate treatment ...

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