City Wants to Boot 6 Emotional Support Chickens

SOUTHGATE, Mich. – A federal court has denied a city’s motion for summary judgment against a man who sought to keep six chickens as emotional support animals.

The man, who was diagnosed with acute stress disorder and major depressive disorder, recurrent and general anxiety disorder, brought suit against the city for violations of the Fair Housing Act and Michigan’s Persons with Disabilities Civil Rights Act after it denied his repeated requests for an exemption to a city ordinance that bars residents from keeping chickens on their property.

U.S. District Judge Sean F. Cox said fact issues exist regarding the reasonableness of the man’s request to keep the chickens as an accommodation.

“The City fails to produce any evidence to refute [the man’s] claims,” the judge wrote. “The City provides no testimony, affidavits, or evidence of any kind in support of its claims. Instead, the City questions the therapeutic benefits of chickens and the quantity [the man] possesses. Questioning [his] needs does not constitute valid evidence of a lack of necessity or equal opportunity. These are questions of fact for a jury, making summary judgment improper.”

The case is Whiteaker v. City of Southgate (MiLW 02-106389, 11 pages).

Background

For almost a decade, Christopher Whiteaker and his family rented a home in Wyandotte, where Whiteaker maintained and raised chickens on the property.

The City of Wyandotte issued Whiteaker a ticket for having the chickens in violation of a city ordinance. Whiteaker successfully claimed a right to maintain the chickens under Michigan’s Right to Farm Act.

In March 2021, Whiteaker and his family purchased and moved into a home in nearby Southgate. Within a month, the city issued a citation against Whiteaker for a violation of Ordinance 610.13, which reads: “No person shall keep or allow to be kept within the City any cows, horses, pigs, goats, pigeons, or fowl or other domestic animals or insect, except birds, dogs, domestic felines or other harmless domestic pets.”

Whiteaker, who believed he had the right to raise his chickens under Michigan’s Right to Farm Act, represented himself in the 28th District Court. But Whiteaker learned the act didn’t apply because his chickens and their coop were within 250 feet of a dwelling. He was issued a second citation in May 2021.

Whiteaker tried to get a permit for the chickens from the city clerk’s office, but a city employee told him the permit application couldn’t be found.

Whiteaker, who has suffered from depression and anxiety for several years, believes the loss of his chickens would exacerbate these conditions. He learned about emotional support animals, or ESAs, and sought counseling from a mental health provider. He was tested and diagnosed with acute stress disorder.

Subsequently, he asked for a waiver from Ordinance 610.13 as a reasonable accommodation for his disability. A letter from his mental health provider was included as support. The city denied his request and pursued the ordinance violation in the 28th District Court.

This time, Whiteaker retained counsel and again asked for a permit, variance or waiver of the ordinance. Again, the city denied his request.

Whiteaker sought a second opinion on his mental health and was diagnosed with major depressive disorder, recurrent and general anxiety disorder. The mental health provider said all of Whiteaker’s chickens are ESAs and gave him documentation to support this.

During litigation, the city acknowledged both that Whiteaker is disabled and that a chicken is an acceptable emotional support animal. The city, Whiteaker claimed, only argued “that six (6) chickens is unreasonable.”

Whiteaker’s third request for an exemption to the ordinance was denied. Per the opinion, “[t]o date, the City has refused to unconditionally exempt Whiteaker based on his mental disabilities from Ordinance 610.13.”

Reasonableness

Whiteaker claims he benefits from keeping his chickens as ESAs because they give him disability related comfort. He also said that since he keeps his chickens safely and the city hasn’t done anything to mitigate the claimed risk, he imposes no burden on the city.

The city, however, argued that the accommodation request is unreasonable and that Department of Housing and Urban Development’s guidance provides a higher burden on Whiteaker under the FHA.

Thus, a triable issue of fact exists, Cox said.

“The City claims Whiteaker’s requested accommodation places a burden on the City in the form of financial and administrative burdens,” the judge wrote. “Essentially, the City argues that Whiteaker’s chickens force the city to expend its money and resources on sending code enforcement and public health department personnel to his home to confirm the chickens are not a danger to the public health. But the City provides only one document from the CDC to support its claims and that guidance only states the potential dangers chickens can pose.”

Cox also rejected the city’s claim that HUD guidance says a request for a reasonable accommodation may be denied if the animal poses a direct threat.

“But nowhere in its discovery or exhibits does the City cite any expert testimony, affidavits, or information to support its claims that Whiteaker’s chickens pose a danger or are a direct threat to public health in this instance,” the judge pointed out.

Whiteaker, meanwhile, offered a letter from his mental health provider saying removal of his chickens would worsen his disability.

“The City claims to be burdened financially and administratively by Whiteaker’s disability but provides no supporting evidence,” Cox wrote. “Whiteaker says he is keeping his chickens safely, and the City says he is not. These are questions of fact for the jury. Without any evidence from the City proving their burden outweighs Whiteaker’s benefit, an issue of fact arises, making summary judgment improper.”

Necessity and equal opportunity

Even if the court found the city’s burden outweighed Whiteaker’s benefit, it would still fail to prove the remaining elements of necessity and equal opportunity, Cox pointed out. Whiteaker offered evidence of his disability and his need for the chickens, and the city gave no evidence to the contrary, the judge noted.

“In fact, contrary to the City’s claim, Whiteaker’s mental health provider does explain why Whiteaker needs all six chickens,” the judge wrote. “In her opinion, the removal of even one chicken would negatively impact Whiteaker’s depression and anxiety symptoms and increase the likelihood that Whiteaker’s daily functioning will decrease. In other words, without his chickens, Whiteaker claims he will not have equal use and enjoyment of his property, as a non-disabled person would.”

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