I hope everyone had a happy Easter and had or is having a good Passover.

 

Also, congratulations to UCLA on their women’s Division I basketball national championship and to Michigan on their men’s Division I basketball national championship.

 

This week’s blog entry dives into the rapidly evolving world of emotional support animals and persons with disabilities. It turns out it is getting really complicated. We will actually discuss two cases. First, Commission on Human Rights and Opportunities Ex Rel. Wendy Pizzoferrato v. The Mansions LLC, decided by the Connecticut Supreme Court on March 31, 2026, here. This case is actually a case where Richard Hunt represented the landlord (Richard is a person I have known for some time and have co-presented with him numerous times). Second, Hinckley v. City of Brandon, decided by United States District Court for the Southern District of Mississippi on March 31, 2026, here. This case was sent to me by Clinical Law Prof. Emeritus Leonard Sandler of the University of Iowa. As usual, the blog is divided into categories, and they are: Commission on Human Rights decision/thoughts/takeaways; Hinckley facts; Hinckley’s reasoning that plaintiff had not demonstrated the necessity for an exception to the waiver provisions of the ordinance; instructive dicta; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Commission on Human RightsDecision/Thoughts/Takeaways

 

  1. This case involved a tenant wanting to have two emotional support animals in their unit. The complex would allow one but not two. The tenant proceeded on a regarded as claim, and the Connecticut Supreme Court wasn’t having any of it. In particular, the Connecticut Supreme Court said that although the regarded as prong is necessary to preclude landlords from refusing to rent to prospective tenants because of perceived disabilities, a perceived disability does not give rise to the need for reasonable accommodation because there is no disability giving rise to the need for the dog.
  2. The case goes off on Connecticut law, but it closely matches Federal Fair Housing Act.
  3. For more details on this case, Richard Hunt blogs on it in detail here.
  4. The case also tracks the ADA in that reasonable accommodations are not available to a person alleging they were regarded as having a disability.
  5. The Connecticut Supreme Court did say that under Connecticut law that it might be possible for a reasonable accommodation to be in order in a perceived disability case, but this wasn’t the case for that.

 

II

Hinckley Facts

 

Hinckley has two mixed breeds pit bulls as her emotional support animals. The City of Brandon prohibits pit bulls by an ordinance. However, they do allow pit bulls if the person has in place and approved (/enclosure) for each dog approved by the Chief Of Police or his designee and that enclosure meets various specific requirements. The particular pit bulls were strictly inside dogs, so the plaintiff did not see any reason to have to build such enclosures. She also did not claim that she was somehow unable to accomplish the enclosures demanded by the variance. She sued for a preliminary injunction that she be allowed to keep the pit bulls without building the enclosure.

 

III

Hinckley’s Reasoning That Plaintiff Had Not Demonstrated the Necessity for an Exception to the Waiver Provisions of the Ordinance

 

  1. No dispute exists that Hinckley sought a variance without taking the steps demanded for those wishing an exception to the ordinance.
  2. Hinckley never suggested at any time that she was somehow unable to accomplish the measures required by the exception to the ordinance.
  3. Hinckley is required to prove that she was discriminated by a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary.
  4. To prove that an accommodation request is necessary, the plaintiff has to show that the requested accommodation makes a home either financially viable or therapeutically meaningful.
  5. In the Fifth Circuit, necessity is defined as something that is indispensable, requisite, essential, needful and which cannot be done without, or is absolutely required. In other words, a requested accommodation must be essential.
  6. The necessity inquiry adopts a strict sense of necessary and functions as a but for causation requirement that ties the needed accommodation to equal housing opportunity.
  7. An accommodation is necessary if without the accommodation, the plaintiff will be denied an equal opportunity to obtain, use, or enjoy the housing of her choice.
  8. The question is whether the requested accommodation (emphasis in opinion), is necessary to afford the resident an equal opportunity to use and enjoy the home.
  9. Hinckley never claimed that she lacked the ability to comply with the terms of the variance. She also has not shown that exclusion from the variance requirements is necessary to attain an equal opportunity to enjoy her home. Rather, she is asking to be treated more favorably than others wishing to own pit bulls within the city limits. Therefore, she fails to establish a substantial likelihood of proving the accommodation was necessary.
  10. HUD’s 2013 guidance on animals was withdrawn on September 17, 2025. So, any cases citing that guidance are less than persuasive.

 

IV

Instructive Dicta

 

  1. Hinckley offers no legal arguments showing that HUD’s 2020 animal guidance correctly construed the FHA’s text, including the necessity element, when applied to requests to waive a city’s variance requirements.
  2. Case law cited by Hinckley precedes Loper Bright and therefore, is hardly persuasive.
  3. Necessity still needs to be proven in order to receive an accommodation.

 

V

Thoughts/Takeaways

 

  1. I had to double check, but HUD has withdrawn BOTH the 2013 and the 2020 animal guidance, here. I don’t know why the court has a section of the opinion analyzing the 2020 guidance as if it is still in effect. So, that discussion would be dicta. The discussion is valuable in that it says the FHA necessity requirement remains as a result of Loper Bright even assuming the 2020 animal guidance is still in effect.
  2. We know from this blog entry, here, that one court has held that charging a pet deposit to process an ESA is perfectly permissible.
  3. An argument can be made that ESA’s are no longer a thing with respect to private housing. HUD has a very short regulation, here, on private housing dealing with a guide dog for the blind. ESA’s certainly go far beyond the limited regulation detailing a very specific kind of service animal. So, this argument would say that an ESA is not in order because an ESA goes far beyond the FHA private regulation on service animals. Interestingly enough, this same logic would suggest that if you had an animal acting as a service animal (trained to engage in recognition and response related to a person’s disability), that was not a dog and you were in private housing, that Loper Bright combined with the HUD regulation on animals in private housing would allow for that animal.
  4. HUD also has a regulation talking about animals in public housing as well, here. The wording of that regulation seems to go beyond service animals and extends to emotional support animals. If one looks at the history behind that regulation, that is indeed the case. See this case. So, in public housing an argument exists that emotional support animals are specifically permitted. On the other hand, I could see a Loper Bright back-and-forth before a court questioning whether a regulation implicitly allowing for emotional support animals was a close fit with the FHA requirement that reasonable accommodation be offered when necessary to enjoy the housing.
  5. Basically impossible for me to believe that a service animal would not be necessary in order for a person to enjoy the benefits of their housing.
  6. So, what you have now is several possibilities with respect to service animals and ESA’s in housing:
    1. Service animals are allowed. Further, a service animal in the housing context possibly could extend beyond dogs.
    2. Emotional support animals are not allowed in private housing.
    3. Emotional support animals are allowed in private housing if necessity can be shown.
    4. Emotional support animals are allowed in public housing, subject to a court’s view of any back-and-forth regarding whether interpreting the public housing regulation to allow emotional support animals is a step too far considering the statutory text of the FHA.
  7. With respect to the Connecticut Supreme Court case, which in my view is likely to be followed in FHA cases, a person must have an actual disability or a record of a disability in order to get accommodations necessary to enjoy their housing.
  8. The line between an emotional support animal and a psychiatric service animal can be extremely small. I have had more than one perspective client contact me about their emotional support animal, only to find out on further questioning that they actually have a psychiatric service animal.
  9. Blanket breed restrictions without exception have been held to be a violation of Title II of the ADA. See this blog entry.
  10. This case involved a mixed breed. We don’t know what mix the pit bulls were and that could conceivably could make a difference in the temperament of the animals. Also, are pit bulls inherently dangerous? People in the animal law field will tell you that pit bulls is actually more than one breed and that it is their training to bring out their naturally aggressive tendencies that makes them dangerous. If this is so, one wonders if an argument doesn’t exist that breed restrictions are arbitrary and void on that ground.