MINIATURE THERAPY HORSE ROCKS ZONING LAW IN UPSCALE CINCY SUBURB
Court settlement allows horse in backyard for severely disabled Blue Ash girl
Ellie, 28 inches tall, had lawyers in Cincinnati’s federal court battling over Blue Ash’s “no farm animal” ordinance versus federal disability law. The horse can live in a disabled girl’s backyard under strict rules, including waste removal.
By LaTeigra Cahill, Esq.
BLUE ASH, Ohio— Not every horse can be a Seabiscuit.
But to a disabled, 16-year-old girl here, a miniature therapy horse named Ellie is a champion deserving of a garland of roses.
Recently, the two were united here after settlement of a federal court battle.
Now in the girl’s backyard, the medically prescribed Hippotherapy—therapy through the use of horses—can continue, instead of at a stable.
At issue in the lawsuit was the city’s zoning ordinance prohibiting farm animals in this upscale suburb of Cincinnati, population 12,000. The plaintiffs contended that rule collided with federal disability and fair housing laws.
“People hear ‘horse’ and they get very frightened,” explained the girl’s attorney, Kathleen Farro Ryan of the Cincinnati law firm of Manley Burke. “But when you look at how small these animals actually are, it’s just amazing.”
Lisa Moad, far right, is owner and founder of Seven Oaks Farm Miniature Horses in Hamilton, Ohio. The non-profit’s horses and handlers visit nursing homes, serve at hospices, work with local police and fire departments, assist with a variety of programs in schools and help reduce stress in colleges. This year the miniature horses have been invited to the Tournament of Roses Parade, Jan. 2, 2017. To follow the miniature horses’ journey across America: #ittybittyhorses.
The blue-eyed, mini-horse measures 28 inches tall, smaller than a St. Bernard dog.
The girl’s mother, Ingrid Anderson, filed the lawsuit in 2014 in Cincinnati’s U.S. District Court.
The girl, known as “C.A.” in court papers because she is a minor, suffers from cognitive and motor delays; seizures; autism spectrum (ASD); chronic lung disease; scoliosis; feeding problems; chronic allergies with ear/sinus complications; autonomic instability; and behavior, visual and hearing deficits, according to court documents.
Ellie can stay at the Anderson property full time, in the home’s backyard. The horse is confined to that area.
Blue Ash officials may inspect the area where the horse resides at any time, without probable cause, between 9 a.m. and 9 p.m.
About the author…
LaTeigra C. Cahill, Esq.,
With a name like LaTeigra (which means “the tiger,”) LaTeigra always has had love and respect for animals. LaTeigra worked as one of Barbara Morgenstern’s interns at the First Amendment Project in Oakland, Calif., a non-profit that defends the rights of journalists.
LaTeigra worked as a public interest attorney for several years where she represented low-income persons in a variety of civil and domestic disputes in both New Mexico and the Navajo Nation. Her experiences with animal law have included cases over cattle rustling, estate planning for livestock and disputes over grazing permits for sheep in the Navajo Nation.
She currently lives in New Mexico with her boyfriend and their two dogs, Cussie and Jasper, who were both once “rez dogs,” the term used for stray dogs on Indian Reservations. Cussie loves to chase prairie dogs and lizards. Jasper prefers to chase tennis balls and her tail.
The girl’s mother, Anderson, must employ a waste pickup service to pick up waste three days per week and she must pick up waste an additional two days per week.
Waste must be placed in a sealed container.
Ms. Anderson is limited to owning no more than the animals she has at the site now – six dogs, two rabbits and the horse.
Judge Timothy S. Black will maintain continuing jurisdiction over the case and will order removal of the horse after an evidentiary hearing, if the court determines Ms. Anderson is not in compliance.
Complicated and evolving federal law characterized this case.
Ellie’s presence is specifically a “reasonable accommodation under the Fair Housing Amendments Act (FHAA,)” explained Ms. Ryan. “I would not say she is there for “C.A.’s therapy” per se, as the use of therapy in this context is fairly imprecise. I would instead describe her as serving the purpose of an emotional support and therapy animal under the FHAA.”
Dr. Ronald S. Levin, Professor Emeritus and now Retired Director of the Complex Care Program at the Center for Infants and Children with Special Needs at Cincinnati Children’s Hospital Medical Center, recommended Hippotherapy for C.A. in 2010.
“We have no complete cure for her Autism, Seizures, Behavior, or Developmental conditions and medications for them are limited and can have serious side effects,” Dr. Levin wrote in his expert report.
“Thus, we take a Holistic approach and look for other therapies and supports in the Community that may supplement her care. This includes the use of service and therapy animals (Animal Assisted Therapy – AAT) which dates back at least two thousand years and whose benefits have been well-documented in the Literature.”
“Hippotherapy is beneficial for (C.A.) because it incorporates many avenues of traditional therapy including physical, occupational, speech and language,” according to Dr. Levin.
With the prescribed therapy involving a horse, the city’s zoning laws generally prohibiting farm animals collided with the plaintiff’s view of federal law.
The litigation has been contentious. After a series of disputes with the city—including complaints of smells–Blue Ash officials cited Ingrid Anderson, C.A.’s mother, for violating the “no farm animal” zoning ordinance by having Ellie on her property. The family also owns six dogs and two rabbits, according to court documents.
In federal court, the city argued location. “This lot is located in the middle of a residential neighborhood…Boiled down, this case is about one thing: Plaintiffs want to house a miniature horse in the backyard of a two-tenths of an acre lot they rent.”
The city maintains its zoning laws are reasonable, noting that the city permits “suburban farms” in Blue Ash on lots of at least five acres.
Blue Ash also said C.A.’s Hippotherapy might be more effective if it took place in a larger space, and Dr. Levin agreed the therapy could be conducted at a local stable.
Attorney Gary E. Becker of Cincinnati-based law firm of Dinsmore represented Blue Ash in the court case. Mr. Becker declined to comment on the settlement because of the “continuing jurisdiction” of Judge Black.
C.A.’s attorney Ms. Ryan is a former urban planner who has worked on a variety of zoning-specific cases.
An Ohio advocate for the disabled said the case brings into focus the concepts of “equal” versus “special” in disability law.
“This young girl should have the same opportunities to enjoy her home as any other child who doesn’t have a disability” said Kevin Truitt, an attorney at Disability Rights Ohio.
“Any other child without a disability is able to enjoy their backyard, to play in their backyard, to get exercise and recreation where as (C.A.) needs a miniature horse to do those things,” said Mr. Truitt.
“It equalizes the playing field, giving her opportunities to have that same enjoyment of her home as any other kid would have. The purpose behind federal laws like the ADA and the FHAA is not to ensure that people with disabilities are treated “special” but to ensure that they are treated equally.”
There is poignancy in that both Ellie the miniature horse and C.A. share developmental problems.
Undesirable as a show horse because her two back knees are rotated, doctors nevertheless consider Ellie an ideal animal for C.A.
The case ricocheted through the federal court system. C.A. initially lost before Judge Black, but appealed to the U.S. Sixth Circuit Court of Appeals, a court one notch below the U.S. Supreme Court.
The appellate court returned the case to Judge Black, noting that the court had not fully explored the facts and certain federal law banning discrimination might apply.
Time will tell whether miniature horses will become more mainstream.
In C.A.’s case, Ellie was prescribed as a therapy animal. However, attorney Ryan said lawmakers in 2011 amended the ADA to also include miniature horses as service animals.
“The only animals you can use under the ADA as service animals are dogs and miniature horses,” Ms. Ryan explained.
This revision could be dramatic because persons who need service animals under the ADA—as opposed to needing a support animal for emotional needs, for example—are less restricted, “she said.
“Service animals can be used indoors, ” Ms. Ryan explained. “You can bring them on planes, you can use them in classrooms, you can bring them to work, you can do everything that you can do with a dog [if the] miniature horse is a service animal.”
The idea of seeing a horse in a public place might seem surprising, Ms. Ryan said. But the day might come when it is common place, depending on how courts interpret the ADA revision, she said.
Attorney Daniel J. Hoffheimer routinely handles multi-million dollar estates at the old-line Cincinnati law firm of Taft (as in sons of the former president,) Stettinius and Hollister LLP, founded in 1885.
While clients are interested in preserving their legacies, they sometimes also want Hoffheimer to protect their pets.
“My practice is giving clients the peace of mind that their personal affairs are in good order in case they become disabled or die, “ said Hoffheimer, a past Cincinnati Bar Association president who has practiced for 39 years. “This sometimes includes planning for the care of a client’s beloved pets. We can even create trusts for pet now in many states, including Ohio.”
However, protecting pets is not a luxury reserved for the rich and famous, although those cases routinely capture the headlines.
Recently, the media reported that the late comedian Joan Rivers had provided for her four dogs, two of which were rescues, in her estimated $150 million estate.
Animal lover Joan Rivers provided for her beloved dogs in her estate plan. Source: http://animalfair.com/joan-rivers-dishes-magnificent-mutts/
Thanks to legislation passed in Ohio in 2007 and similar laws in many states, pet owners legally can provide for the care of their pets, if the owners die or become unable to care for the animals.
Hoffheimer, a cat lover, said animals are considered disposable, personal property, such as jewelry or cars, unless they are specifically protected.
“In a very sad case I had, the client had made no provisions for her dog,” Hoffheimer explained. “When the client died, the dog passed as property to the beneficiary under the client’s will to a friend, who euthanized the perfectly healthy dog, which, as the new owner, she had the complete legal right to do….
Under the law, pets are simply personal property, but we know that they should be treated with much more respect. Pets really cannot protect themselves even as people can. They need to be cared for.”
Had the owner created a pet trust, the document could have required the beneficiary to place the dog with a rescue group, if the named individual could not care for the dog. Funds for the dog’s care also could be set aside, as well as fees sometimes required by rescue groups.
Although most pet trusts Hoffheimer drafts protect dogs and cats, at least two cases concerned parrots, whose owners worried that their birds could outlive them. Parrots can have long life spans, with reports of 50 to100 years, according to bird statistics.
Hoffheimer advised pet owners to take the time to plan for their pets’ welfare before it is too late.
“The most important thing a pet lover should do is consider what would happen if she or he did not plan, he said. “Then, think about who would be able to love and care for one’s pet as best as is possible. One should also consider how it is best to set aside some money to make sure the pet is cared for as one would want.”
A listing of attorneys who practice in the areas of Probate, Estates and Elder Law is available from The Cincinnati Bar Association, www.cincybar.org.
“Who will look after my pets if I die or become unable to care for them?”
Even if you consider your pet a member of the family, the law does not permit you to leave money outright to an animal in your will, according to Cincinnati attorney Nancy J. Burns.
That is because animals are considered personal property, the same as jewelry or a car, explained Burns of the law firm of Schwartz Manes Ruby & Sloven.
However, creating a pet trust can fill the void, she said. Also, sometimes an existing trust can be amended to include provisions for your pet, Burns explained.
“Now, in Ohio, pet owners have a legally enforceable way to make sure their pets are cared for if the owner becomes disabled or dies,” Burns explained.
A pet trust can:
Provide money for the pet’s care, if the owner is disabled or dies.
Name a trustee to manage the money and oversee the caregiver.
Name a caregiver for the pet, and an alternate.
Designate a certain rescue group or organization to care for the animal, if an individual is not available.
Mandate particulars, such as the pet’s primary vet; what brand of dog food required; even grooming requirements.
Provide a detailed description of your pet, so the trustee can identify your pet. This helps prevent fraud.
Designate who or what organizations you would like to receive leftover funds after the pet dies.
Instruct what to do with your pet’s remains.
The trust requires the caregiver use the money to take care of the pet.
“If the money is used for something else, a judge can order the caregiver to return the money,” Burns said. The judge can also remove the caregiver and appoint your second choice as new caregiver, she said.
More information on pet trusts is available at:
The American Society for the Prevention of Cruelty to Animals, www.aspca.org, “Pet Trust Primer.”
Estate Planning for Non-Human Family Members by Professor Gerry W. Beyer of Texas Tech University School of Law, Pet Trust 6/02/2014.
www.2ndchance4pets.org, which provides various free forms including an emergency identification card for an owner’s wallet or purse (published here.) The nonprofit’s goal is to reduce the number of companion animals euthanized because of the death or disability of the owners.
Websites that sell pet protection agreements, a different concept than pet trusts, include: