While we see a lot of cases relating to condominiums not accommodating the request of a disabled person for Emotional Support Animals, the Federal Court denial of a Motion for Summary Judgment in favor of a City was the issue in Whitaker v City of Southgate 66 NDLR P 136 (ED Mich. January 19, 2023)
In this case, the City ordinance stated that “No person shall keep or allow to be kept within the City any cows, horse, pigs, goats, pigeons, or fowl or other domestic animals or insects, except birds, dogs, domestic felines or other harmless domestic pets.”
After attempting to argue, without success, that he had the right to maintain chickens under Michigan’s Right to Farm Act and then seeking an application for a permit for the chickens and being told by the City that the City could not find the application, Whiteaker then requested a reasonable accommodation pursuant to the Federal Fair Housing Amendments Act and the Michigan Persons with Disabilities Civil Rights Act. A mental health provider stated that Mr. Whiteaker suffered from depression and anxiety and that the removal of the chickens would likely increase Whiteaker’s depression and anxiety symptoms. The mental health provider also stated that all 6 chickens were needed as ESA’s.
The City of Southgate argued that the 6 chickens posed a health and safety issue. Mr. Whiteaker claimed that his chickens are kept safely, according to guidance established by the Michigan Department of Agriculture and the Michigan State University School of Agriculture. In short, he argues that he imposes no burden to the city.
The City also argued that HUD guidelines provide for a substantial burden of demonstrating a disability related therapeutic need for the specific animal or the specific type of animal. Also, HUD guidance provides that the request may be denied by the city if the animal poses a direct threat that cannot be reduced to an acceptable level through actions the individual takes to maintain and control the animal.
The Court then analyzed the information provided by both the city and Whiteaker and concluded that the City did not provide any information in its discovery or exhibits that cites any expert testimony, affidavits, or information to support its claim that Whiteaker’s chickens pose a danger or are a direct threat to public health. On the other hand, Whiteaker provided a letter from his mental health provider explaining the benefit his chickens provide him and that the removal of the chickens would worsen his disability as well. He also argued that he complied with “guidance established by the Michigan Department of Agriculture and Michigan State University School of Agriculture for poultry management” on how to keep chickens safely but did not provide expert testimony that demonstrated he is in fact keeping his chickens safely.
The final analysis in these types of matters is whether the six chickens are a reasonable accommodation necessary to provide Whiteaker an opportunity to enjoy his property equally as those without disabilities do. (Interestingly, the City conceded at the state trial court level that a chicken was an emotional support animal.)
Since the city has not offered evidence as to its health and safety and undue burdens and since there is a question as to whether the six chickens are necessary as the health provider contends are issues for the jury and therefore the Motion for Summary Judgment by the City was denied, and the case was remanded back to the trial court to decide these unanswered issues.
There are a few valuable lessons for condominium associations:
• All requests for emotional support animals (no matter what the animal) must be taken seriously.
• Even if the unit owner does not raise the Fair Housing arguments the first or second time, they are asked to remove the animal does not mean the claim for discrimination based on disability or the request for a reasonable accommodation will be barred.
• Health and safety issues for six chickens in a mid-rise condominium would be greater than they were in Whiteaker’s case of a single-family home.
Allcock & Marcus would like to thank Attorney Kevin Hirzel of Hirzel Law in Michigan for bringing this case to our attention.
For purposes of readers knowing how recent a decision and article is, the decision is from January 19, 2023, and this article was drafted on March 22, 2023.
For a copy of the Whitaker v City of Southgate Decision [click here].
But for a contrary decision in Massachusetts [click here].
If you have any questions, contact Stephen Marcus at stephen@amcondolaw.com or any other attorney at Allcock & Marcus.
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