March/April 2026 Issue

Also in this issue: Immigration Enforcement Updates in Wisconsin Municipality Law: Federal Pressure, Local Responses, and Operational Protocols     |     Welcome Nick Bratsos!     |     Welcome Heather Curnutt!

Do Municipalities Have to Allow Emotional Support Animals?

Eric B. Hagen | 03.24.26

Many municipalities are unaware of their obligations under the Fair Housing Act Amendments Act of 1988 (FHAA) to reasonably accommodate a handicapped or disabled person’s request for an emotional support animal. The failure to do so is considered unlawful discrimination, which could subject an offending municipality to discrimination claims for actual and punitive damages. Wisconsin’s Open Housing Law contains a similar reasonable accommodation requirement for people with disabilities. See Wis. Stat. § 106.50(2r)(b).

A common misconception is that the FHAA only applies to entities providing housing, but it also applies to the application of municipal ordinances (including zoning ordinances) that impact a handicapped or disabled person from accessing housing that is equal to that of those who are not disabled. This includes ordinances that prohibit or restrict the keeping of certain animals (such as prohibiting the keeping of livestock, poultry, or exotic animals), ordinances that prohibit the keeping of dangerous dog breeds (like pitbulls), and ordinances that limit the maximum number of dogs or cats that can be kept. In certain circumstances, the FHAA requires municipalities to make exceptions to such ordinances to reasonably accommodate a request for an emotional support animal.

It is important to recognize the distinction between ​“service animals” that are protected by the Americans with Disabilities Act and ​“emotional support animals” which are covered by the FHAA. ​“Service animals” are dogs or miniature horses that are individually trained to do work or perform tasks for the person with a disability. An ​“emotional support animal” on the other hand can be any type of animal and is not required to have training, but rather just needs to provide emotional support comfort, or companionship for the person with a disability.

To determine whether a municipality should provide an exception to its ordinance to allow an emotional support animal, the requester needs to show that they have a disability or handicap, and that the accommodation is reasonable and necessary to afford them the equal opportunity to use and enjoy a dwelling. Thus there are three elements to consider: 1) whether the requester is handicapped or disabled, 2) whether the requested accommodation is reasonable, and 3) whether the requested accommodation is necessary.

The FHAA defines handicapped or disables as “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.”

In determining whether an accommodation for an emotional support animal is reasonable, the municipality will need to weigh the burden the requested accommodation would place on the municipality and public against the benefit the accommodation would provide to the requester. A reasonable accommodation is one which imposes no fundamental alteration of the nature of a program or ordinance, or undue financial and administrative burdens. An exception to an ordinance is unreasonable if it is so at odds with the purpose behind the ordinance that it would be a fundamental and unreasonable change. FHAA guidance states, ​“that a reasonable accommodation for an assistance animal, including an emotional support animal, may be refused if the animal poses a direct threat that cannot be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal.” So, if evidence shows the emotional support animal poses a danger or public nuisance, a municipality may be able to deny the request.

To determine whether an accommodation for an emotional support animal is necessary, the municipality will need to consider if the requested accommodation is necessary to prevent harm or injuries that would otherwise prevent the requester from receiving the same enjoyment from the property as a non-disabled or non-handicapped person would receive. This requires that there be evidence that the emotional support animal in question be essential to the requester’s equal enjoyment of the property, not just preferable. So while it may be necessary for a requester to have an emotional support animal, there also needs to be evidence that the particular type, breed, or quantity of animals is necessary. Nothing in the FHAA gives a requester a right to their preferred option, but there may be evidence that their preferred option is necessary.

The requester has the burden of proving that they are handicapped or disabled and that their request is both reasonable and necessary. This may require the requester to provide evidence of their handicap or disability, if the disability is not apparent. It also may require the requester to provide documentation from their healthcare provider showing that they have a disability related need for their preferred emotional support animal and how their preferred emotional support animal is necessary, if the need is not apparent. 

Municipalities can ask why an individual needs a specific animal or animals, particularly if the animals are unique or exotic (like livestock) or if the requester already has other permitted animals that could provide emotional support. While no Wisconsin courts have weighed in on this issue, the Nebraska Supreme Court held it was not necessary for the requester to possess a second dog of a breed that was prohibited by ordinance (pitbull) when they already had a permitted dog that provided the necessary emotional support. See Wilkison v. City of Arapahoe, 926, N.W.2d 441, 452 (Neb. 2019).

If a municipality does not find sufficient grounds for granting an accommodation, it risks a challenge to its determination under the FHAA. Unfortunately, the FHAA has no clear-cut guidelines for determining whether a requested accommodation must be granted. The Courts also have not established any bright-line rules. For this reason, determining whether requested accommodations are required is highly fact-specific, and often comes down to case-by-case determinations.

Municipalities should make sure to have a clear process for an individual to make a request for an accommodation to have an emotional support animal. Without a clear process, it is more likely a court will find an issue with the municipality’s determination or process.

Municipalities should consider whether other exceptions to the ordinance have been made, whether for reasonable accommodation or otherwise. Municipalities should be mindful of the precedence such past exceptions set. If there are distinguishing factors, municipalities should be sure to document them.

Municipalities should keep in mind that while complaints about the animal can be helpful to support denial of accommodation, the lack of complaints can be equally detrimental if the animal has gone undetected by the municipality for a long period of time. It is difficult to argue an animal will be a danger and nuisance when it hasn’t been for several years.

With the growing use and acceptance of emotional support animals, municipalities will likely see more requests to accommodate them. Municipalities are strongly encouraged to reach out to their legal counsel when such requests are received to avoid unlawful discrimination under the FHAA.