Brooke Wilkison, individually and on behalf of Brianna Wilkison, a minor child, appellee,
City of Arapahoe, appellant.
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.
Ordinances: Zoning: Injunction: Equity. An
action to declare an ordinance void and to enjoin its
enforcement is equitable in nature.
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.
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.
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.
Statutes: Appeal and Error. The
interpretation of statutes and regulations presents questions
of law which an appellate court reviews de novo.
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Fair Housing Act, as originally enacted in 1968, prohibited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.
The federal Fair Housing Act was amended in 1988 to protect
against discriminatory practices on the basis of disability.
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
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.
Federal Acts. The federal Fair Housing
Act's exemptions must be narrowly construed.
Federal Acts: Discrimination. The federal
Fair Housing Act prohibits both individuals and governmental
entities from engaging in proscribed forms of discrimination.
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.
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.
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.
. 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
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
from the District Court for Furnas County: James E. Doyle IV,
D. Urbom, Arapahoe City Attorney, for appellant.
Nathaniel J. Mustion, of Mousel, Brooks, Schneider &
Mustion, PC, L.L.O., for appellee.
Neb. 970] Heavican, C.J., Miller-Lerman, Cassel, Stacy,
Funke, Papik, and Freudenberg, JJ.
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) 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,
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.
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.
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
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."
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 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