Guenther v. Walnut Grove Hillside Condo. Regime No. 3

Citation: 309 Neb. 655Docket: S-20-574

Court: Nebraska Supreme Court; July 2, 2021; Nebraska; State Supreme Court

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An action for declaratory judgment is unique and its classification as law or equity depends on the dispute's nature. Injunctive relief is inherently equitable. In equity actions for declaratory judgments, appellate courts review factual issues de novo, while considering the trial court's credibility assessments of witnesses. The Fair Housing Act mandates reasonable and necessary accommodations for handicapped individuals to ensure equal housing opportunities, with the burden of proof resting on the plaintiffs. To prove necessity, claimants must demonstrate that the accommodation is essential for equal enjoyment of their dwelling, and courts must evaluate whether alternatives exist that meet the Act's objectives. An appellate court is not required to analyze issues unnecessary for the case at hand. Christine Guenther appeals the dismissal of her complaint against Walnut Grove Hillside Condominium Regime No. 3, which denied her request to build a fence for her daughter's emotional support dogs. The court affirmed the dismissal, finding no error in the decision. Guenther owns a condominium in Omaha, where her daughter, diagnosed with major depressive and anxiety disorders, uses the dogs as emotional support. Guenther requested permission in February 2018 to construct or repair a fence in the common area to facilitate the dogs' outdoor time.

Guenther offered to finance the construction of a fence, arguing it would reduce N.G.’s anxiety about dog safety following the traumatic death of her first emotional support dog near their condominium. Guenther described hearing distressing sounds and finding the dog dead, though she was uncertain of the cause. Walnut Grove denied the request based on its bylaws, which prohibit partitioning common elements, asserting that such a fence would violate the HOA rules that ensure common elements remain undivided for all unit owners. In August 2018, Guenther reiterated her request to build the fence to help with N.G.’s depression and anxiety, but it was again denied; Walnut Grove suggested alternatives like an underground invisible fence, a privacy fence for Guenther's patio, or tethering the dogs outside. On January 30, 2019, Guenther filed a complaint in Douglas County district court, claiming Walnut Grove failed to provide reasonable accommodation under the Fair Housing Act (FHA) due to N.G.’s mental health issues, including major depressive disorder and anxiety. Guenther alleged selective enforcement of the bylaws, citing that neighboring units had grandfathered fences. She sought a declaration of equal protection violations, FHA violations, permission to build the fence, and attorney fees. Walnut Grove responded on March 7, 2019, asserting it had offered reasonable alternatives. After a trial on June 25, 2020, the court dismissed Guenther’s complaint on July 17, 2020, concluding she did not meet the burden of proof under the FHA, particularly failing to demonstrate that N.G. was a "handicapped person" needing the accommodation for equal access to the premises. The court acknowledged a doctor’s note confirming N.G.’s conditions but noted that N.G. had not received treatment or medication by the time of the trial.

Guenther did not demonstrate that N.G. had a physical or mental impairment significantly limiting her major life activities, failing to establish that N.G. qualifies as handicapped under the Fair Housing Act (FHA). The court also found insufficient evidence that the requested accommodation—a fenced yard for dogs—was essential for N.G. to have equal access to Guenther's home. Testimony indicated that N.G. primarily resided in Lincoln and was able to interact with the dogs at Guenther's home without needing outdoor access in a fenced yard since the neighbor, Carol Bolton, had allowed Guenther to keep the dogs in her fenced yard for two years. Guenther's appeal includes five assignments of error, primarily challenging the court's findings regarding N.G.'s handicap status and the necessity of the accommodation, as well as procedural issues regarding burden of proof and attorney fees. The court's analysis, referencing a prior case (Wilkison v. City of Arapahoe), concluded that Guenther failed to prove the accommodation's necessity, emphasizing that the FHA prohibits discrimination based on handicap in housing matters.

Discrimination under the Fair Housing Act (FHA) includes failing to make reasonable accommodations that are necessary for handicapped individuals to have equal opportunities in housing. To establish a reasonable accommodation claim, the plaintiff must prove by a preponderance of the evidence that the accommodation is reasonable and necessary. While Guenther suggested a burden-shifting analysis for claims involving reasonable accommodations, this approach applies only in summary judgment contexts, not in bench trials like this case. 

The court's review focuses on whether Guenther demonstrated that her request to build a fence in a common area is reasonable and necessary for equal housing access. Reasonableness involves a fact-specific inquiry weighing the needs of both parties against financial and administrative burdens. An accommodation is deemed unreasonable if it imposes undue burdens or fundamentally alters the program's nature. 

In this appeal, the court determined it need not assess reasonableness but rather whether the fence is necessary. The necessity element relates to ensuring equal opportunity; plaintiffs must show that, without the accommodation, they would likely be denied equal enjoyment of their housing. Guenther did not provide sufficient evidence that the fence was essential for N.G., who suffers from mental health issues, to enjoy her dwelling. Although N.G.'s dogs positively impact her health, the evidence indicated she enjoys them without the fence. Guenther's citation to a previous case did not establish necessity, as it only confirmed the fence as an accommodation. Consequently, the court found that Guenther failed to prove that the fence is indispensable for achieving equal housing opportunities for N.G., emphasizing that a necessary accommodation must directly alleviate the effects of a disability.

Construction of a fence in the common area was not deemed necessary based on N.G.’s testimony, which merely expressed a desire for peace of mind regarding the safety of her dogs. Guenther's argument hinged on the assertion that without the fence, the dogs would face risks of attacks from other animals; however, no evidence substantiated this claim. Guenther speculated that her first emotional support dog might have been attacked by a neighbor's larger dog, but she later admitted uncertainty about whether the incident involved an attack or a car accident. A neighbor confirmed that Guenther had indicated the dog was hit by a car, not attacked. Additionally, another neighbor, Bolton, allows emotional support animals in her fenced yard adjacent to Guenther's condominium, presenting a viable alternative.

Even if Guenther's need for a fence were factually supported, she did not adequately address the alternatives proposed by Walnut Grove, which included using invisible fencing, installing a privacy fence around her patio, or tethering the dogs outside. There was no evidence presented that these alternatives would be ineffective, and the option of using Bolton’s yard was noted as effective. Guenther claimed that she and N.G. were best positioned to specify their accommodation needs, but the facts did not support her request, and she was not entitled to her preferred accommodation method. Consequently, the district court found that Guenther failed to demonstrate that a fenced backyard was necessary for N.G. to enjoy equal housing opportunities, leading to the dismissal of her claim under the Fair Housing Act (FHA). As a result, the appellate court affirmed the district court's decision and noted that Walnut Grove's request for attorney fees was premature.