1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0191p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

I NGRID A NDERSON , individually and parent on behalf of C.A.; H OUSING O PPORTUNITIES M ADE E QUAL , I NC ., Plaintiffs-Appellants ,

v

.

C ITY OF B LUE A SH , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ │ │ ┘ No. 14-3754

Appeal from the United St ates District Court for the Southern District of Ohio at Cincinnati. No. 1:14-cv-00151—Timothy S. Black, District Judge. Argued: March 5, 2015 Decided and Filed: August 14, 2015 Before:COLE, Chief Judge; MOORE and CLAY, Circuit Judges.

_________________ COUNSEL

ARGUED: Kathleen A. Farro, MANLEY BURKE, LP A, Cincinnati, Ohio, for Appellants. Mark A. Vander Laan, DINSMORE & SHOHL, LLP, Cincinnati, Ohio, for Appellee. ON BRIEF: Kathleen A. Farro, Timothy M. Burke, MANLEY BURKE, LPA, Cincinnati, Ohio, for Appellants. Mark A. Vander Laan, Bryan E. Pacheco, DINSMORE & SHOHL, LLP, Cincinnati, Ohio, for Appellee. Kevin J. Truitt, OHIO DISABI LITY RIGHTS LAW AND POLICY CENTER, INC., Columbus , Ohio, for Amicus Curiae. 

### >No. 14-3754 Anderson, et al. v. City of Blue Ash Page 2

_________________ OPINION

_________________ COLE, Chief Judge. This appeal is the la test chapter in an ongoing dispute between Ingrid Anderson and the City of Blue Ash, Ohi o, over whether Anderson can keep a miniature
horse at her house as a service animal for her disa bled minor daughter, C.A. C.A. suffers from a
number of disabilities that aff ect her ability to walk and balance independently, and the horse enables her to play and get exercise in her back yard without assistance from an adult. Since Anderson first acquired a horse in 2010, she has struggled with the City for permission to keep it at her house. In 2013, the City passed a muni cipal ordinance banning horses from residential property and then criminally pr osecuted Anderson for violating it . Anderson’s defense was that the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12101, et seq. , and the Fair Housing Amendments Act (“FHAA”), 42 U.S.C. § 3601, et seq. , both entitle her to ke ep the horse at her house as a service animal for C.A. Rejecting those arguments, the Hamilton County Municipal Court found Anderson guilty.
Anderson brought this action against the City in federal district court, again arguing that the ADA and FHAA entitle her to keep her horse as a service animal for C.A. She also claims that the City intentionally discriminated against he r because of C.A.’s disab ilities, in violation of both the ADA and the FHAA, and that the City’s ordinance has had a disparate impact on C.A. and other disabled individuals, in violation of the FHAA. The district court granted summary judgment to the City, finding that Anderson’s cl aims were barred by claim and issue preclusion stemming from her Munici pal Court conviction.
Because the fact-finding procedur es available in a criminal proceeding in municipal court differ substantially from those available in a civil proceeding, Anders on’s conviction has no preclusive effect on this lawsuit. Furthermore, while there is no ev idence that the City’s actions were motivated by discriminatory intent agains t C.A. or had a dispar ate impact on disabled individuals, there are significant factual dis putes regarding whether the ADA or FHAA require the City to permit Anders on to keep her miniature horse at he r house. We ther efore reverse the district court’s grant of summary judgment to th e City on those claims.No. 14-3754 Anderson, et al. v. City of Blue Ash Page 3

I. BACKGROUND
A. Factual Background
Ingrid Anderson lives in the City of Blue Ash, Ohio, withher disabled minor daughter, C.A. C.A. has a variety of disabilities, including autism, se izures, chronic lung disease, gastroesophageal reflux, feeding and vision pr oblems, severe allergies, attention deficit hyperactivity disorder, developmental delay, au tonomic dysfunction, and tachycardia, among
others. Her disabilities make it difficult for C.A. to maintain her balance independently, particularly when she must change directions or navigate unevensurfaces. Consequently, C.A. cannot effectively use her backyard for recr eation and exercise w ithout assistance.
While the traditional service animal is a dog, miniature horses are often used to provide
assistance to individuals with disabilities. See generally 28 C.F.R. § 35 app. A (2011) (specifically discussing miniature horses as service animals). Mi niature horses can be trained to provide many of the services commonly associated with se rvice dogs, such as guiding individuals with impaired vision. Like dogs, miniature horses can also be housebroken, and
individuals with disabilities have taken them on trains and commerc ial flights. Miniature horses may be preferable to service dogs for “large stature indi viduals” and “individua ls with allergies, or for those whose religious belie fs preclude the use of dogs.” Id. Additionally, because they are stronger than most dogs, miniatur e horses may be preferable for “providing stability and balance for individuals with disabilities that impair the ability to walk, and supplying leverage that enables a person with a mobility disa bility to get up after a fall.” Id. Miniature horses also have significantly longer lif espans than dogs, and are able to pr ovide service for more than twentyfive years while dogs can only provide service for approximately seven. Th is allows a disabled minor to have a single mini ature horse throughout his or her childhood, without having to periodically replace aging service dogs. Therap y with miniature horses is sometimes referred to as “equine” or “hippotherapy.”
In 2010, C.A. began working with miniature horses as a form of therapy at the Hamilton County Parks facility and in the backyard of her house. By gripping the mane of her horse, C.A.
is able to move about outside for recreation an d exercise. Dr. Ronald Levin—the physician whoNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 4

recommended that C.A. work with miniature hors es as a form of therap y—described some of the benefits C.A. receives from working w ith a miniature horse in her backyard:
Hippotherapy is beneficial for [C.A.] as it incorporates several avenues of traditional therapy including physical, occupational, speech and language. Specifically, this may address [C.A.’s] physical development through learning more about balance and control. Hippot herapy addresses many aspects of gross and fine motor skills that can be applied in everyday life. Cognitively [C.A.] may benefit from learning and practicing comm unication skills, as well as increase her social skills, self-esteem and independence.
(Levin Letter, November 3, 2010, R. 10-5, PageID 717.) C.A. fatigues easily: Dr. Levin stated that “just a drive across town to receive therapy can wipe her out leaving no energy to enjoy this therapeutic and recreational activity.” ( Id. ) As a result, Anderson began keeping a miniature horse at her Prospect Avenue reside nce in the City so that C.A. could benefit from this therapy at
home.
In August 2010, Daniel Johnson, the City’s Community Development Director and Zoning Administrator, began receiving compla ints from Anderson’s neighbors about the miniature horse at her house. Anderson’s neighb ors complained about excessive waste from the horse and other animals kept on the property. At least one co mplaint questioned whether C.A. was actually using the horse for therapeutic purpo ses, and noted that th e condition of Anderson’s property was devaluing the neighborhood because of “health issues” and an “extremely offensive . . . smell of horse manure that emanates from the piles in [her] backyard” so severe that the complaining neighbor’s children could not play outside . (Email Complaint, August 12, 2010, R. 8-1, PageID 123–24.)

Johnson ordered Anderson to remove the horse from her property. Anderson appealed that order, first to the Blue Ash Board of Zoning Appeals (“BZA”), which affirmed, and then to the Blue Ash City Council. The Council ultimately decided not to enforce Johnson’s order, citing a letter it received from Dr. Levin in which he supported “t he housing of a miniature horse for in-home therapy support for [C.A.]” (Lev in Letter, November 3, 2010, R. 10-5, PageID 717.) By “in-home therapy” Dr. Levin was not s uggesting that the thera py take place indoors, but outdoors “at the home” so that the therapy “can be utilized in a schedule that is more conducive to [C.A.]” ( Id. )No. 14-3754 Anderson, et al. v. City of Blue Ash Page 5

Anderson began keeping a second miniature horse at her house in 2011. Johnson ordered Anderson to remove the second horse, but Ande rson refused. Instead, she submitted a letter
from Dr. Derek Fletcher—anothe r physician recommending that C.A. work with miniature horses as a form of therapy—s upporting “the housing of two mi niature horses” for C.A.’s therapy. (Fletcher Letter, A ugust 16, 2011, R. 8-1, PageID 138.) Unpersuaded by Dr. Fletcher’s letter, Johnson again ordered Anderson to rem ove the second horse in February 2012.
In early 2012, the Hamilton County Public H ealth Department received a complaint concerning five dogs, “horses, goats, chickens and pigs living within [Anderson’s] home and causing unsanitary conditions within.” (Stone Report, March 5, 2012, R. 8-1, PageID 139.)
Johnson ordered Anderson to remove the other fa rm animals from her property in February 2012. A subsequent investigation by a health in spector revealed excessive animal waste on Anderson’s property, though it wa s cleaned up by the time she re moved the pig from her house
in mid-March 2012.
Anderson appealed the removal order to th e BZA, arguing that the ADA entitled her to keep both miniature horses at her house. In April 2012, the BZA held an evidentiary hearing before issuing a written opinion a ffirming the order that Anderson remove one of her two horses.
Anderson appealed the BZA decision to the Blue Ash City Council, again arguing that the ADA entitled her to keep bothminiature horses at her hous e. After analyzing the ADA’s requirements and C.A.’s circumstances, the C ouncil issued a written decision finding that the horses “are clearly not service anim als, either under the applicable federal statutory guidelines or the case law analyzing the issue.” (Council D ecision, September 13, 2012, R. 8-1, PageID 136.)
The Council affirmed the BZA’s decision that one of Anderson’s horses must be removed. Anderson did not appeal the Council’s decision. Ar ound this time, the City received at least two complaints from individuals living in Ande rson’s neighborhood, each describing unsanitary conditions at her house and questio ning whether the horses were actu ally being used for C.A.’s therapy.
In August 2012, after the Council’s decision, Anderson and C.A. replaced their two miniature horses with Ellie, the miniature horse at issue in this appeal, and moved to their current residence on Myrtle Avenue. After completing se veral classes on how to train miniature horsesNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 6

for therapy, Anderson trained El lie to assist C.A. in naviga ting her backyard, including by steadying C.A. while she is walking a nd helping her to stand after a fall.
On January 10, 2013, the Council passed Ordi nance No. 2013-1, amending the City’s municipal code “to prohibit keeping of farm animals at residences within the city.” (Ordinance No. 2013-1, R. 2, PageID 49.) The ordinance spec ifically applied to hor ses, excepting those “[a]nimals which are otherwise specifically pe rmitted elsewhere in the Municipal Code or permitted by Hamilton County, Ohio State, or Federal law.” ( Id. ) On January 31, 2013, Johnson sent a letter to Anderson informing her that the new ordinance would come into effect on February 20, 2013, and that she would be cited fo r violating it if the miniature horse was still present on her property on or after that date.
In responding to an anonymous compla int on February 21, 2013, a police officer observed a miniature horse in Anderson’s backyar d. The officer asked Anderson to remove the horse from her property, and, initially, she complie d. But while investigat ing a later complaint,
an officer observed the horse at Anderson’s residence on July 8 a nd again on July 16. On each occasion he cited Anderson for violating Ordi nance 2013-1. Each citation was punishable by a $150 fine.
In the summer of 2013, Housing Opportuniti es Made Equal, Inc. (“HOME”), a nonprofit, fair-housing-assistance or ganization in the Cincinnati ar ea began providing services to Anderson. HOME advises clients of their rights to fair housing and helps them file fair housing claims. HOME advised Anderson of her right s under the FHAA and th e ADA and “assist[ed] her with filing a Fair Housing Ac t violation” against the City. (Municipal Transcript, R. 8-4, PageID 273.) One of HOME’s compliance manage rs, Brandon Craig, contacted several City officials, including Johnson and the prosecutor handling Anderson’s citations, informing them of Anderson’s rights related to serv ice animals and, specifically, miniature horses under the FHAA
and the ADA.
Anderson responded to the two citations by email on July 24, 2013. She specifically
asserted that both the FHAA and the United States Department of Housing and Urban Development (“HUD”) guidelines on assistance animals (interpreting the FHAA and the ADA)No. 14-3754 Anderson, et al. v. City of Blue Ash Page 7

entitled her to a “reasonable accommodation to keep the miniature horse for [C.A.].” (Anderson Email, July 24, 2013, R. 10-5, PageID 711.)

Anderson was tried on both citations in the Hamilton County Municipal Court on October 22, 2013. She did not deny that she keptthe miniature horse, Ellie, at her house, but based her defense entirely on her position that the ADA and FHAA entitled her to keep the horse for C.A.’s therapy. Anderson was represented by counsel and presented several exhibits that purportedly described her rights under the ADA and the FHAA, including applicable HUD guidelines and ADA regulations on service animals. Anderson moved to dism iss the citations at the close of the prosecution’s case , arguing that because the miniature horse is a service animal under the ADA, Ordinance 2013-1 could not apply to her. The motion was denied. During closing arguments, the prosecuto r argued that the horse was not a service animal under the ADA. Anderson’s counsel responded by arguing that the miniature horse was a service animal under federal law, and urged the Municipal Court to review the exhibits de scribing the relevant ADA and FHAA regulations.
On November 13, 2013, the Municipal Court found Anderson guilty on both citations.
The court did not issue a written opinion, noting simply that it ha d reviewed all of the exhibits
and conducted additional research. The court di d not impose a fine for either conviction, and Anderson did not appeal.

In March 2014, after the onset of this l itigation, Anderson asked her neighbors to sign letters supporting her efforts to keep Ellie at her house. In these letters, Anderson stated that she
had secured a servic e to remove animal waste from her ya rd. Most of her neighbors, together
with a few others from the commun ity, signed letters in support.

B. Procedural Background
On February 18, 2014, Anderson, individually and on behalf of C.A., and HOME filed this suit against the City. Theyalleged that the City’s refusal to permit Anderson to keep the horse at her residence violated her rights und er the ADA and the FHAA. Anderson, C.A., and HOME also alleged that the City enacted and enforced Ordinance 2013-1 because of discriminatory animus against C.A., in violat ion of both the ADA and the FHAA, and that theNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 8

ordinance has had a disparate impact on C.A. and other disabled individuals in violation of the FHAA. They sought declarator y and injunctive relief, along w ith compensatory damages, attorney’s fees, and costs.
The City moved for summary judgment, arguing that claim and issue preclusion bar this
lawsuit because of Anderson’s criminal convic tions for violating Ordinance 2013-1 and her administrative proceedings before the Blue Ash C ity Council in 2012. The City also disputed the merits of the ADA and FHAA claims, contending th at neither statute entitles Anderson to keep Ellie at Anderson’s house. The district court gr anted summary judgment to the City, finding that
Anderson’s convictions on the two citations ba rred this lawsuit based on claim and issue preclusion. The district cour t also found for the City on the merits of the ADA and FHAA claims. The plaintiffs appealed.

II. ANALYSIS

A. Standard of Review

We review the district court’s grant of summary judgment de novo. Guyan Int’l, Inc. v. Prof’l Benefits Adm’rs, Inc. , 689 F.3d 793, 797 (6th Cir. 2012). “We al so review de novo a district court’s applica tion of res judicata.” Ohio ex rel. Boggs v. City of Cleveland , 655 F.3d 516, 519 (6th Cir. 2011) (citation and internal q uotation marks omitted). Summary judgment is proper if there are no genuine di sputes of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (a). In determining whether the City met its burden on summary judgment, we view the evidence inthe light most favorab le to the plaintiffs
and draw all reasonable inferences in their favor. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986).

B. Claim and Issue Preclusion
Claim and issue preclusion generally prevent parties from raising an argument that they already fully litigated in an ear lier legal proceeding. “State-cour t judgments are given the same preclusive effect under the doctrines of res judicata and collateral estoppel as they would receive in courts of the rendering state.” Boggs , 655 F.3d at 519 (citation a nd internal quotation marks omitted). “In other words, ‘[i]f an individual is precluded from litigating a suit in state court byNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 9

the traditional principles of res judicata, he is similarly precluded from litigating the suit in
federal court.’” Id. (alteration original). “We look to th e state’s law to assess the preclusive effect it would attach to that judgment.” Id. (citation and internal quotation marks omitted).
Under Ohio law, “[t]he doctr ine of res judicata encompasse s the two relate d concepts of claim preclusion, also known as res judicata orestoppel by judgment, and issue preclusion, also known as collateral estoppel.” O’Nesti v. DeBartolo Realty Corp. , 862 N.E.2d 803, 806 (Ohio 2007). “Claim preclusion prevents subsequent acti ons, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action.” Id. The doctrine also bars any subsequent action w hose claims “could have been litigated in the previous suit.” Id. “Issue preclusion, on the other hand, serves to prevent relitigation of any fact or point that was determined by a court of competent jurisdicti on in a previous action between the same parties or their privies,” and “applies even if the causes of action differ.” Id.
The City contends that both claim preclus ion and issue preclusi on bar the plaintiffs’ lawsuit because of (1) Anderson’ s administrative appeal to the Blue Ash City Council in 2012, and (2) her convictions for violating Ordinanc e 2013-1. First, we address the administrative appeal. It is true that “[r]es judicata, whethe r claim preclusion or issue preclusion, applies to quasi-judicial administrative proc eedings” as long as “the partie s have had an ample opportunity to litigate the issues invo lved in the proceeding.” State ex rel. Schachter v. Ohio Pub. Emps. Ret.
Bd. , 905 N.E.2d 1210, 1216 (Ohio 2009) (citation and inte rnal quotation marks omitted). But a prior proceeding triggers res judicata only for cl aims that could have been decided in that proceeding and issues that were actually determined, see O’Nesti , 862 N.E.2d at 806, and the
claims and issues in this case are not the same as those that were or could have been presented to the Blue Ash City Council in 2012.

The issue before us is whether federal law enti tles Anderson to keep Ellie at her house on Myrtle Avenue. Anderson’s appeal to the Council dealt with two different miniature horses at a different location, a residence on Prospect Av enue in Blue Ash. These distinctions are significant because the ADA regulations governi ng miniature horses call for a fact-specific inquiry into the character istics of the particular animals in question, in cluding their type, size, weight, and training, as well as the adequacy of the facilities where the horses are kept. SeeNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 10

28 C.F.R. § 35.136(i)(2). The FHAA also calls for a “highly fact-specific inquiry.” Hollis v.
Chestnut Bend Homeowners Ass’n , 760 F.3d 531, 542 (6th Cir. 2014 ) (citation and internal quotation marks omitted). Thus the question in this case—whether the ADA or FHAA entitle Anderson to keep Ellie at her current residence—was not and could not have b een answered in Anderson’s appeal to the Blue As h City Council, and therefore th at proceeding has no preclusive
effect on this lawsuit.
Anderson’s convictions for violating Ordi nance 2013-1, on the other hand, concerned the
same horse and the same residence now at issue. While Anderson concedes that she raised both the ADA and FHAA as defenses during that pro ceeding, Anderson contends that res judicata
does not bar her claims because she could not fu lly litigate them during her criminal trial. Specifically, she argues that she could not raise her ADA or FHAA claims nor seek declaratory, injunctive, or monetary relief as a defendant in a municipal court of limited jurisdiction.
We have recognized that “Ohio state courts generally frown upon the use of criminal proceedings to estop parties in subsequent civil proceedings.” Boone v. Spurgess , 385 F.3d 923, 927 n.4 (6th Cir. 2004). The Supreme Court of Ohio has explained that this is because “[t]he qualitative differences between civil and criminal proceedings including the differing standards of proof, rules of discovery, and rules of evid ence militate against giving criminal judgments preclusive effect in civil or quasi-civil litigation.” State ex rel. Ferguson v. Ct. of Claims of Ohio, Victims of Crime Div. , 786 N.E.2d 43, 48 (Ohio 2003) (per curiam) (internal quotation marks and brackets omitted). This disfavor is not absolute, however, and the court has recognized that criminal proceedings can sometimes trigger res judicata in a subsequent civil
suit:
The Ohio Supreme Court has explicitly held that a convicted defendant is precluded under the doctrine of res judicata from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could ha ve been raised by the defendant at the trial which resulted in that judgment of conviction or on appeal from that judgment.
5455 Clarkins Drive, Inc. v. Poole , 384 F. App’x 458, 463 (6th Cir. 2010) (per curiam) (internal quotation marks omitted).No. 14-3754 Anderson, et al. v. City of Blue Ash Page 11

Whether Ohio courts will give preclusive e ffect to a criminal proceeding in a subsequent
civil suit turns on “whether the bur dens of proof, discovery rules, ev identiary rules, procedure, or constitutional safeguards effective at the crim inal stage could have affected that party’s willingness or ability to pursue the argument at issu e in a way that no longer obtained at the civil stage.” Id. Thus, the Supreme Court of Ohio has held th at an acquittal at a criminal trial did not bar relitigation of the defendant’s innocence in a subsequent wrongful imprisonment action brought by that defendant because of “qualitative differences between civil and criminal proceedings.” Walden v. Ohio , 547 N.E.2d 962, 966 (Ohio 1989). “In a civil proceeding, not only is the burden of proof usually different, it be ing placed upon plaintiff . . . but also the rules concerning trial procedure, discovery, evidence and constitutional safeguards differ in important aspects.” Id. (internal quotation marks omitted). By contrast, that court held that a criminal conviction did preclude a subse quent civil action for post-convict ion relief where the defendant sought to relitigate the validity of the criminal statute under which he had been convicted, and that legal challenge had been “fully litigat ed” during his prior criminal proceedings. Ohio v. Szefcyk, 671 N.E.2d 233, 235 (Ohio 1996).
Other Ohio courts have also recognized that the preclusive effect of a criminal judgment depends on whether qualitative differences between the criminal and civil proceedings affected the criminal defendant’s willingness and abilityto litigate fully the case or issues. In Independence Excavating, Inc. v. City of Twinsburg , No. 20942, 2002 WL 2009464, at *8 (Ohio Ct. App. Sept. 4, 2002), an intermediate appeals court held that a municipal conviction for violating a zoning ordinance precl uded a company from later seeki ng a declaratory judgment that the zoning ordinance conflicted with state law because that issue could have been raised as a defense in the prior criminal proceeding. Acknow ledging that “qualitative differences [between criminal and civil proceedings] are often relevant to determining the applicability of res judicata,” the court held that “demonstrating a conflict between th e city’s ordinance and similar state legislation would not be a ffected by differences in discovery methods, privilege, or selfincrimination safeguards that normally differ between criminal and civil proceedings.” Id.
Similarly in Poole , we distinguished between the pr eclusive effects Ohio gives to

“ factualdeterminations made in an earlier criminal proceeding” and “a defense that could haveNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 12

been made” in that proceeding. 384 F. App’x at 462–63. In holding that an adult cabaret’s conviction for violating a zoning ordinance pr ecluded it from raisin g a First Amendment challenge to that ordinance in a s ubsequent civil suit, we held that:
During their criminal proceedings, [the ad ult cabaret owners] indisputably could have raised their First Amendment claims , and appear to have had precisely the same opportunity and motivation to pursue them; their willingne ss and ability to do so were unaffected by the fact that th e earlier proceeding happened to be a criminal trial. Moreover, they have made no argument that, as a practical matter, the differences between criminal and civil procedural or evidentiary rules denied them that opportunity to pursue thei r claims of facial invalidity.

Id. at 465 (footnote omitted). Thus both Independence Excavating and Poole determined the preclusive effects of a criminal proceeding on a subsequent ci vil action by asking whether the “qualitative differences” between those proceedings aff ected the litigan t’s willingness or ability to pursue the claim.
Taking into account these considerations, we conclude that Ande rson’s convictions for violating Ordinance 2013-1 have no preclus ive effect on her ADA and FHAA claims here because the qualitative differences between the inst ant civil proceedings and her criminal trial in Municipal Court had different effects on her willi ngness and ability to litigate fully those issues in the prior proceeding. Unlike the plaintiffs in Independence Excavating and Poole , whose purely legal defenses could ha ve been fully litigated during their criminal proceedings, Anderson’s ADA and FHAA claims require fact-intensi ve inquiries that are greatly affected by the differences in the municipal criminal court’s f act-finding procedures, particularly the lack of civil discovery. Thus Anderson’s ability to pursue her claims was “qualitatively different” than
it is here. Additiona lly, Anderson had less motivation to litigate fully her ADA and FHAA claims in the municipal court, where she wa s a defendant drawn involuntarily into those proceedings by the City’s citations, faced only a small fine, and where th e court had no authority to order the City to let her k eep her horse at home. Accord ingly, Anderson’s claims are not precluded by res judicata, and we proceed to address the merits of the ADA and FHAA claims.No. 14-3754 Anderson, et al. v. City of Blue Ash Page 13

C. ADA Claims

1. Reasonable Modification
Anderson contends that the ADA and its impl ementing regulations require the City to make a reasonable modification to its “policies, practices, and procedures” to permit her to keep Ellie at her residence. The ADA prohibits public entities from discrimina ting against individuals with disabilities, including by:
fail[ing] to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privilege s, advantages, or accommodations.
42 U.S.C. § 12182(b)(2)(A)(ii). Regulations im plementing the ADA require a public entity to make “reasonable modifications in policies, pract ices, or procedures to permit the use of a miniature horse by an individual with a disabilityif the miniature horse has been individually trained to do work or perform tasks for the bene fit of the individual witha disability,” provided that the horse and the requested modification al so satisfy certain “[a]ssessment factors.” 28 C.F.R. § 35.136(i)(1)–(2).
It is undisputed that C.A. is “an individual with a disability,” but the district court granted summary judgment to the City on Anderson’s ADA claim for a reasonable modification because it found that Ellie did not meet the ADA regulati ons’ requirements and b ecause it found that the regulations’ “assessment factors” were not satisf ied. On appeal, Anderson contends that there are disputed issues of fact ma terial to both the ADA regulatory requirements for miniature horses and the related assessment factors that precl ude summary judgment in favor of the City.
a. ADA Regulatory Requirement s for Miniature Horses
The ADA regulations do not specify the amount or type of training th at a miniature horse must undergo to qualify as a reason able modification for a disabled individual, nor the amount or type of work or assistance that the horse must provide for his or her benefit. Courts have typically found that to qualify for a reasonable m odification, an animal must be specially trainedNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 14

to perform tasks directly related to a disability, contrasted with animals that have received only general training, provide only emotional support, or otherwise perform tasks not directly related to a disability. See, e.g. , Lerma v. Cal. Exposition and State Fair Police , No. 2:12-CV-1363, 2014 WL 28810, at *5 (E.D. Cal. Jan. 2, 2014) (fi nding that a puppy was not a service animal because it only received obedience training and was used only to help the plaintiff “get through the day and feel better, a type of emotional support and comfort, which is exactly the type of aid specifically excluded as work or tasks under” ADA regulations); Rose v. Springfield-Greene Cnty. Health Dep’t , 668 F. Supp. 2d 1206, 1215 (W.D. Mo. 2009) (finding that a monkey was
not a service animal because the ta sks it performed did not “relate to [plaintiff’s] disability” and merely provided comfort to the plaintiff, whose disabilities did not requ ire a monkey to perform day-to-day activities).
On appeal, Anderson contends that her hor se meets these requirements because she has individually trained Ellie to a ssist C.A. by steadying her as she walks so that she can enjoy independent recreation and exercise in her backyard. The City firs t contends that the horse does not qualify for a reasonable modification under the ADA and its implementing regulations because it does not help C.A. with her daily li fe activities (such as going to school), C.A. can walk without the horse, and the horse does not help C.A. inside the house. We are not persuaded by, nor do we find any authority to support, the proposition that an an imal must be needed in all aspects of daily life or outside the house to qualify for a reasonable modification under the ADA. Many service animals are trained to provide specialized assistance that may be necessary only at certain times or places. See 28 C.F.R. § 35 app. A (discussing tasks commonly performed by service animals). For example, C.A. has a seiz ure-response dog that is sp ecifically trained to assist her if she has a seizure while sleeping. Th is dog indisputably qualifies as a service animal despite the fact that it does not provide assistan ce to C.A. with any of her daily activities while
she is awake or outside the house. Anderson has produced evidence th at Ellie is trained to assist C.A. with beneficial exercise in her backyard, and she is no less qualified for a reasonable modification under the ADA simply because C.A. does not need her horse’s assistance for all of her daily activities or when traveling.No. 14-3754 Anderson, et al. v. City of Blue Ash Page 15

The City also contends that Ellie has not been “individually trained to do work or perform tasks for the benefit of” C.A. because Anderson, the horse’s prim ary instructor, holds no certification in service-animal training. Bu t the ADA regulations have no certification requirement. Rather, the ADA asks whether the horse has been in structed on how to perform a task that assists an individual with his or her disability, so the instructor’s lack of certification at best creates a factual dispute as to whether a horse’s training was adequate. Here, Anderson
testified that Ellie is trained to assist C.A. to overcome her mobility limitations by steadying her as she walks and helping her stand after she falls, tasks specifically listed by the ADA regulations as examples of ways that miniature horses can assist the disabled. See 28 C.F.R. § 35 app. A . Construed in Anderson’s favor, this evid ence satisfies the ADA regulations’ requirement
that the miniature horse be “individually trained to do work or perform tasks for the benefit of
the individual with a disabil ity.” 28 C.F.R. § 35.136(i)(1).

b. Assessment Factors
In addition to the requirement that miniature hor ses be trained to assistan individual with his or her disability, the ADA regulations al so provide four “assessment factors” that “shall [be] consider[ed]” when determining “whether reasona ble modifications in pol icies, practices, or procedures can be made to allow a mini ature horse into a specific facility”:
(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features; (ii) Whether the handler has suffici ent control of the miniature horse; (iii) Whether the miniature horse is housebroken; and (iv) Whether the miniature horse’s presence in a spec ific facility compromises legitimate safety requirements that are necessary for safe operation.
28 C.F.R. § 35.136(i)(2). The district court found that these factors we igh against Anderson, noting that her house is on a lot th at is smaller than miniature hor ses typically requi re, that Ellie is not housebroken, and finding that health compla ints lodged against Anderson over the past several years suggest that the ho rse’s presence would compromise the City’s “legitimate health and public safety concerns.” On appeal, Anderson contends that she has produced evidence that at least creates disputed issues of fact as to each of these factors.No. 14-3754 Anderson, et al. v. City of Blue Ash Page 16

With regard to the first factor, the City cont ends that Anderson’s resi dence is too small to accommodate her horse, pointing out that Anderson has admitted that her yard is significantly
smaller than would be ideal for an average miniature horse. Ho wever, this factor calls for consideration of the “type, size, and weight” of the particular miniature horse at issue, not an average member of her species. See 28 C.F.R. § 35.136(i)(2)(i). Anderson has provided evidence that Ellie is uniquely suited for a smaller yard because her rear legs are deformed, thus reducing her need and ability to run. Furthermor e, Anderson testified thather backyard includes
a shed “of a size and dimension to accommodate three miniature horses comfortably, and thus houses Ellie very comfortably and keeps her safe from the elements.” (Anderson Aff., R. 10-2, PageID 692.) This eviden ce is sufficient to show a factual di spute regarding th e first assessment
factor.
The City contends that the second and third factors weig h against Anderson and C.A. because they did not have sufficient control ove r Ellie, and that she was not housebroken.
Anderson testified that she has sufficient control over her horse because sh e has trained Ellie to perform specific tasks for C.A. In response, th e City offered a sworn account of an incident in which C.A. attempted to demonstrate how she works with Ellie but was not able to do so, fell, and was stepped over by the horse . Given the conflicting affidav its concerning the extent of Anderson and C.A.’s control over their horse, there is a genuine factual di spute over the second
assessment factor that cannot be resolved on su mmary judgment. Regard ing the third factor,
Anderson concedes that Ellie is not housebroken. However, this does not automatically relieve the City from its obligation to make a reasonab le modification because the assessment factors are

not prerequisites for a reasonable modifi cation, but are independent factors that shall be considered when evaluating whether a particular modification is reasonable for a particular animal. The City provides no reason why Ellie’s lack of control over producing waste indoors is relevant here, where the horse is never indoors and the requested accommodation is for the horse
to assist C.A. and live outdoor s in Anderson’s backyard.
Finally, the City contends that the fourth factor weighs against Anderson. It points to multiple citizen complaints conc erning unsanitary conditions relate d to a number of animals on Anderson’s property. The City concludes from those complaints that the “miniature horse’sNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 17

presence” at her house “compromises legitimate safe ty requirements” of the City’s health code.
See 28 C.F.R. § 35.136(i)(2)(iv). Anderson responds that these complaints do not accurately
reflect the condition of her residence and that sh e has now secured a service to regularly remove animal waste from her yard. Additionally, Anderson emphasizes that there are no complaints from her current neighbors, most whom have signed letters in support of her efforts to keep Ellie at her house. Anderson points out that those cond itions complained of arose from the concurrent presence of multiple farm animals at her house, co mbined with her previous failure to clean up effectively after them. Indeed, she notes that so me of the complaints the City cites concerned only dog waste and were made at times when no horses were present at Anderson’s house. Taken together, this evidence shows that there is a factual dispute over whether a single
miniature horse at Anderson’s residence woul d threaten the City’s “legitimate safety requirements.”
Anderson has produced evidence th at it would be reasonable for her to keep Ellie at her residence and that all the requirements and assess ment factors of the ADA regulations have been satisfied. The City has produced conflicting evid ence, such as health complaints, and draws a different conclusion from the record, but weighing the City’s evidence against the plaintiffs’ is inappropriate on summary judgment. The Ninth Ci rcuit has observed that the “determination of what constitutes reasonable modification is highlyfact-specific, requiring case-by-case inquiry.” Lentini v. Cal. Ctr. for the Arts, Escondido , 370 F.3d 837, 844 (9th Cir. 2004) (internal quotation marks omitted). Viewing all facts and drawing a ll reasonable inferences in Anderson’s favor, and given the “highly fact-specific” nature of the reason ableness inquiry, we conclude that there are disputed issues of material fact as to the reasonableness of Anderson’s requested
modification.
Because we find that disputed issues of fact preclude summary judgment in favor of the City on Anderson’s ADA claim for a reasonable m odification to keep El lie at her house, we
reverse the district court’ s judgment on that claim.

2. Intentional Discrimination
The plaintiffs contend that the City intent ionally discriminated ag ainst Anderson and her daughter when it passed Ordinance 2 013-1 in violation of Title II of the ADA. Title II providesNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 18

that “no qualified individual with a disability sh all, by reason of such disability, be excluded from participation in or be deni ed the benefits of the services, programs, or activ ities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “[T]he phrase ‘services, programs, or activities’ encompasse s virtually everything a public entity does.”
Tucker v. Tennessee , 539 F.3d 526, 532 (6th Cir. 2008). “We analyze claims of intentional discrimination brought pursuant to the ADA . . . under the familiar burden-shifting analysis established by [ McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973)].” Turner v. City of Englewood , 195 F. App’x 346, 353 (6th Cir. 2006). “Under McDonnell Douglas , [a] [p]laintiff must first establish a prima f acie case of discrimination.” Id.
To establish a prima facie case of intentional discriminatio n under Title II of the ADA, a plaintiff must show that: (1) sh e has a disability; (2) she is otherwise qualified; and (3) she was being excluded from participati on in, denied the benefits of, or subjected to discrimination under the program because 1 of her disability. Tucker , 539 F.3d at 532. In other words, the plaintiff
must show that the defendant took action because of the plaintiff’s disabi lity, i.e., the “[p]laintiff must present evidence that an imus against the prot ected group was a signifi cant factor in theposition taken by the municipal decision-makers themselves or by those to whom the decisionmakers were knowingly responsive.” Turner , 195 F. App’x at 353; see also Tucker , 539 F.3d at 533 (holding that to make out a prima facie case of intentional discrimi nation under Title II of the ADA, a plaintiff must “establish[] that he or she was intentionally . . . subjected to
discrimination . . . because of his or her disability”) (emphasi s original, internal quotation marks and brackets omitted); Dillery v. City of Sandusky , 398 F.3d 562, 568 (6th Cir. 2005) (rejecting a plaintiff’s ADA claim for intentiona l discrimination because the plai ntiff could not show that the defendants’ actions were “because of her disability ”). “Further, the plaintiff must show that the
discrimination was intentionally directed toward him or her in particular.” Tucker , 539 F.3d at 532 (emphasis original).

1 Our test for intentional discrimination under Title II of the ADA previously required that the discrimination be “ solely ” because of the plaintiff’s disability, Tucker , 539 F.3d at 535 (emphasis original); see also Dillery v. City of Sandusky , 398 F.3d 562, 567 (6th Cir. 2005), Jones v. City of Monroe, Mich. , 341 F.3d 474, 477 (6th Cir. 2003), but our decision in Lewis v. Humboldt Acquisition Corp. , 681 F.3d 312, 317 (6th Cir. 2012) (en banc), rejected this sole-causation requirement. While Lewis dealt with intentional discrimination claims under Title I of the ADA, we specifically discussed the causation language in Title II, noting that it too “fails to use ‘solely.’” Id. at 315. Therefore our holding in Lewis that “[t]he sole-cause standard . . . does not apply to claims under the ADA,” id. at 317, applies with equal force where, as here, th e intentional discrimination claim is brought under Title II.No. 14-3754 Anderson, et al. v. City of Blue Ash Page 19

Once a plaintiff establishes a prima facie case of discrimination, the defendant “must then offer a legitimate, nondiscriminatory reason for its” challenged action. Sjostrand v. Ohio State
Univ. , 750 F.3d 596, 599 (6th Cir. 2014). “If [the de fendant] does so—and its burden is merely one of production, not persuasion—[ the plaintiff] must then presen t evidence allowing a jury to find that the [defendant’s] explanation is a pretext for unlawful discrimination.” Id.
Here, it is undisputed that C.A. is a qualifie d individual with a disa bility, but the parties dispute whether the plaintiffs can make out th e third element of their prima facie case by showing that the City took action because of C.A. ’s disability. The City maintains that its actions were motivated by the multiple citizen complaints against Anderson concerning unsanitary conditions at her house related to th e presence of farm animals, and not by any discriminatory intent or animus against the disabled, while Ande rson contends that the City was motivated to pass Ordinance 2013-1 because of C.A. ’s disability. Therefore the issue here is whether the plaintiffs can make out a prima faci e case of discrimination by showing that the City

“ intentionally ” passed Ordinance 2013-1 “ because of [C.A.’s] disability.” See Tucker , 539 F.3d at 533 (internal quotation marks omitted).

Our decisions in Dillery v. City of Sandusky , 398 F.3d 562 (6th Cir. 2005) and Hamm v. City of Gahanna, Ohio , 109 F. App’x 744 (6th Cir. 2004), are instructive. In Dillery , a disabled plaintiff brought an intentiona l-discrimination claim under the ADA against police officers who allegedly stopped her because of her disability wh en she was using her wheelchair on the road. 398 F.3d at 568. We rejected that claim because we found that “the police did not stop [the plaintiff] because of her disability, but rather st opped her in response to citizen complaints about her being in the roadway.” Id. In Hamm , the plaintiffs brought a claim under the ADA and the FHAA alleging that the city inte ntionally discriminated against th em by refusing to re-zone the plaintiffs’ property to allow the construction of group housing for th e disabled. 109 F. App’x at 747. We rejected that claim because we found th at the city denied th e plaintiffs’ re-zoning application due to opposition from the plainti ffs’ neighbors, who were concerned with the proposed group-housing project’s impact on th e neighborhood and its property values. See id. at 747–49. In both Dillery and Hamm , we found that legitimate citi zen complaints motivated the defendant city’s actions. That the complaints we re lodged against individuals with disabilitiesNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 20

did not transform the cities’ re sponses to those complaints in to intentional discrimination, because it was the complaints that motivated the citi es’ actions, not the fact that the plaintiffs had
disabilities. So too here.
We find that the evidence, even when viewed in the light most favorable to Anderson, shows that it was citizens’ complaints that motiv ated the City’s actions, and that there is no evidence to support an inference of discriminatory intent. The City first ordered Anderson to remove another miniature horse from her pr operty after receiving a complaint detailing unsanitary conditions caused by th e animals there. After Anders on submitted a physician’s letter explaining that C.A. was using the horse for therapy, the Blue Ash City Council decided not to enforce that order. It was only after Anderson acquired a second horse and the City received additional health complaints referring to the pres ence of “horses, goats, chickens and pigs living within [Anderson’s] home and causing unsanitary c onditions within” that th e City ordered her to remove these farm animals, including the second horse. Throughout that administrative process, the City continued to permit Anderson to keep one miniature horse on her property for C.A. despite several of the complaints expressing doubts as to whether either horse was actually being used for therapeutic purposes. It was only after still more health compla ints in the fall of 2012 that the City passed Ordinance 2013 -1. Even then, the City incl uded a provision that explicitly made an exception for animals protected by fede ral law. When Ordinance 2013-1 went into effect, the City did not cite Anderson for viola ting it, only issuing citations months later after Anderson brought the horse back to her house. This sequence of ev ents is entirely consistent with the City responding to the legitimate concer ns of its citizens about the sanitation problems posed by the presence of farm animals on resi dential property, and pr ovides no basis for the inference that the City took action “b ecause of [C.A.’s] disability.” See Tucker , 539 F.3d at 533 (emphasis omitted); Dillery , 398 F.3d at 568.
On appeal, Anderson points to a number of events prior to the passage of Ordinance 2013-1 that she contends demonstrate the City’s discriminatory intent, but none of these facts could support the inference that the City’s actions were because C.A. is an individual with a disability. First, Anderson points to evidence that the City passed Ordinance 2013-1 because of
her. It is true that the ordi nance’s preamble states that it was enacted in response to “manyNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 21

complaints” and “inquiries from residents regard ing the keeping of horses, pigs, goats, sheep, and alpacas” on residential property, and that John son conceded that Anderson’s miniature horse was one motivation for Ordinance 2013-1. (Ord inance 2013-1, R. 2, Page ID 49.) While this evidence is sufficient to show that the Citymay have passed the ordinance because of the plaintiffs, the issue here is whether the C ity passed the ordinance because C.A. is disabled . In Dillery , the city’s police officers were clearly taki ng action because of the plaintiff when they arrested her for being in the roadway, but we re jected that claim because there was no evidence
that their actions were “because of her disabili ty.” 398 F.3d at 568. Similarly, that the City responded to complaints about the condition of Anderson’s residence doe s not mean that its response was affected by the fact that C.A. is an individual with a disability, so the fact that Ordinance 2013-1 may have been passed because of the plaintiffs is inapposite.

Anderson next contends that the Blue Ash City Council’s actions during her administrative proceedings show the City’s discri minatory intent. She points to the Council’s decision in April 2012 ordering the removal of he r second miniature horse, in which the Council
examined whether either of Anderson’s horses we re service animals. Anderson suggests that, because only the second horse’s removal was at i ssue, the fact that the Council discussed both horses is evidence of the City’s discriminatory intent. But it was Anderson who raised the issue that both horses were service animals during that proceeding, so we can draw no inference about the City’s motivations from the fact that the Co uncil addressed Anderson’s argument. She also points to the Council’s decision in 2010 not to enforce the order for her to remove her first miniature horse as evidence that the City knew it would violate federal regulations to do so. Even if this was an acknowledgement by the City of its obligation to make reasonable accommodations under federal regulations, there is no suggestion that it impermissibly discriminated against the plaintiffs because of C.A.’s disability when additional health complaints spurred the City to question the continued reasonableness and necessity of her requested accommodation. Questioning the necessity and reasonability of a requested disability accommodation does not, by itself, create the inferenc e of intentional discrimination. To hold otherwise would be to require public entities to grant any requested accommodation and never revisit an accommodation once granted lest they subject themselves to liability for intentional discrimination simply by questioning the reas onableness or necessity of the request.No. 14-3754 Anderson, et al. v. City of Blue Ash Page 22

Finally, Anderson contends that the City’s procedures for assuring compliance with ADA regulations were inadequate, and that this was an indicator of the City’s animus towards the disabled. This argument does not help Anderson make her prima facie case, which requires a plaintiff to show that the “discrimination was intentionally directed toward him or her in particular.” Tucker , 539 F.3d at 532 (emphasis original). Even if the City’s procedures for compliance with federal regulations had a negative impact on its disabled citizens generally, this does not support the inference that the City’s acti ons were motivated by C.A.’s disability because “[a]cts and omissions which have a disparate im pact on disabled persons in general are not specific acts of intentional discrimination against the plaintiff in particular.” Dillery , 398 F.3d at 568 (internal quotation marks and brackets omitted).
Because the evidence viewed in the light most favorable to the plaintiffs does not support the inference that the City took action to compel Anderson to remove her miniature horse from her house because of C.A.’s disability, the plainti ffs have not established their prima facie case
of intentional discrimination under Title II of the ADA. Therefore, we affirm the district court’s grant of summary judgment to the City on the plaintiffs’ ADA claim of intentional
discrimination.

D. FHAA Claims

The FHAA makes it unlawful to “discrimin ate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the pr ovision of servi ces or facilities in connection with such dwelling, because of a handicap.” 42 U.S.C. § 3604(f)(2). Such
discrimination includes a “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling[.]” Id. at § 3604(f)(3)(B). “P laintiffs who allege a violation of 42 U.S.C. § 3604(f) may proceed under any or all of three theories: disparate treatment, disparate impact, and failure to make reasonable accommodations.” Smith & Lee Assocs. v. City of Taylor, Mich. , 102 F.3d 781, 790 (6th Cir. 1996).

Anderson invokes all three theories. First, she contends that by refusi ng to permit her to keep Ellie at her dwelling the City failed to make a reasonable accommodation for C.A.’s disability as required by the FHAA. Second, as to her disparate tr eatment claim under theNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 23

FHAA, Anderson repeats the assertion that she made under the ADA that the City intentionally discriminated against her because of C.A.’s disab ility. Third, Anderson alleges that, even if the City had no discriminatory animus, its actions have had a disparate impact on “C.A., and any disabled person within the City who may require the assistance of a miniature horse.” (Appellant Br. 53.)

1. Reasonable Accommodation
The plaintiffs contend that the FHAA, lik e the ADA, requires the City to make a reasonable accommodation to allow Anderson to keep her miniature horse at her residence. The FHAA “creates an affirmative duty on [a] municipa lit[y] . . . to afford its disabled citizens reasonable accommodations in its municipal zoning pr actices if necessary to afford such persons equal opportunity in the use and enjoyment of their property.” Howard v. City of Beavercreek , 276 F.3d 802, 806 (6th Cir. 2002); see 42 U.S.C. § 3604(f). Unlike the ADA, the FHAA does not have minimum regulator y requirements for animals to qualify as a reasonable
accommodation. See 28 C.F.R. § 35 app. A (discussing how the current ADA regulations define
“service animal” to include a narr ower class of animals than those protected under the FHAA). The “three operative elements” of the FH AA’s reasonable accommodation requirement are “equal opportunity,” “necessary,” and “reasonable.” Smith & Lee Assocs. , 102 F.3d at 794. On appeal, Anderson contends that there are disputed i ssues of fact as to each of these elements that preclude summary judgment for the City.
a. Equal Opportunity and Necessity
The first two elements are closely related. The first asks “whether the requested
accommodation would afford the disabled resident an equal opportuni ty to enjoy the property.”
Hollis , 760 F.3d at 541. The FHAA “links the term ‘n ecessary’ to the goal of equal opportunity. Plaintiffs must show that, but for the accomm odation, they likely will be denied an equal opportunity to enjoy the hous ing of their choice.” Smith & Lee Assocs. , 102 F.3d at 795 (citations omitted). “The necessity element is, in other words, a causation inquiry that examines whether the requested accommodation or modifica tion would redress injuries that otherwise would prevent a disabled resident from receivi ng the same enjoyment from the property as a non-disabled person would receive.” Hollis , 760 F.3d at 541.No. 14-3754 Anderson, et al. v. City of Blue Ash Page 24

Equal use and enjoyment of a dwelling are achieved when an accommodation ameliorates the effects of the disability su ch that the disabled individua l can use and enjoy his or her
residence as a non-disa bled person could. See id. ; see also Bhogaita v. Altamonte Heights
Condo. Ass’n , 765 F.3d 1277, 1288–89 (11th Cir. 2014) (findi ng that an emotional support dog was necessary for a plaintiff’s equal use and enjo yment of his dwelling wh ere it “alleviate[d] the effects of a disability” so that he could work from his house as a non-disabled person could, and that “without the dog, [the plain tiff’s] social interactions woul d be so overwhelming that he would be unable to perform work of any kind” (internal quotation marks omitted)). Here the plaintiffs contend that C.A.’s horse allows her to play indepe ndently in her backyard as a nondisabled child can, and so having the horse at her house is necessary for her equal use and enjoyment of her dwelling.
The district court found that permitting A nderson to keep a hor se at her house was unnecessary because C.A. could obtain therapy w ith a horse by traveling to a local farm or stable. On appeal, the City sim ilarly argues that C.A. did not n eed therapy with a horse at her house, and that the accommoda tion was also unnecessary becau se “C.A. can ambulate and otherwise function without the horse,” and continue to live in her house without it. (Appellee Br. 47–48.) Anderson contends that the accommodation was necessary for C.A. to play independently in her backyard as a non-disabled child could, and that therapy with a horse at a farm is no substitute for therapy at her house, citing to Dr. Levin’s letter inwhich he stated that “[C.A.] fatigues easily, and just a drive across town to receive th erapy can wipe her out leaving no energy to enjoy this therapeutic and recreational act ivity.” (Levin Letter, November 3, 2010, R. 10-5, PageID 717.)
Regarding the assertion that C.A. can obtain therapy with a horse at a local farm or stable, Dr. Levin’s letter is ev idence from which a reasonable fa ctfinder could find that C.A. cannot obtain the benefit of therapy after trave ling from her house, so the district court’s conclusion to the contrary on summary judgment, where it was required to draw all reasonable inferences in Anderson’s favor, was in error. More to the point, the availability of an alternative treatment away from the plaintiff’s dwelling is irrelevant to the FHAA, which requires reasonable accommodations necessary for a disabled individual to receive the “ same enjoymentNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 25

from the property as a non-disa bled person would receive,” Hollis , 760 F.3d at 541 (emphasis added), not merely those accommod ations that the disabled indi vidual cannot function without or for which no alternative is available away from the dwelling. For the same reason, the City’s argument that “C.A. can ambulate and otherw ise function without the horse” is likewise
irrelevant because the FHAA requires accommodations that are necessary to achieve housing equality, not just those accommodations that are absolutely necessary for the disabled
individual’s treatment or basic ability to function.
The City’s argument that the accommodati on was not necessary because C.A. can
continue to live in her house with out it is also inapposite. The City relies on our decision in
Howard , in which we rejected a plaintiff’s claim that a privacy fence was a necessary
accommodation for him to continue to live in his dw elling in part because the plaintiff had lived there without the fence for years. See 276 F.3d at 806. The City points out that, like the plaintiff
in Howard , C.A. can continue to live in her house without the pres ence of a horse. But, unlike the plaintiff in Howard , the plaintiffs here do not contend that the accommodation is necessary for C.A. to continue to reside in her dwelling, but rather that the accommodation is necessary for her to have an equal opportunity to enjoy a particular use of her house—independent recreation and exercise in her backyard. Because the FHAA requires accommodations that are necessary for the same enjoyment of a dwe lling that a non-disabled person would receive, not just those that are necessary to remain in the dw elling at all, the City’s reliance on Howard is misplaced.
See Bhogaita , 765 F.3d at 1289 (finding that the FHAA required an accommodation for a puppy that was necessary for the plaintiff to work from his house, even though the plaintiff could
continue to live in the house without it).

Anderson testified that Ellie allows C.A. to play independently and exercise in her backyard and that, without the horse, C.A. cannot do so for any significan t length of time, and would effectively be denied the equal opportunity to play in her own backyard as non-disabled children can. This evidence, viewed in a light most favorable to the plaintiffs, is sufficient for a reasonable jury to find that the requested acco mmodation of keeping the miniature horse at her house is necessary for C.A.’s equal use and enjoyment of her dwelling.No. 14-3754 Anderson, et al. v. City of Blue Ash Page 26

b. Reasonability

The “crux of a reasonable-accommodation . . . claim typically will be [the third ‘operative element,’] the que stion of reasonableness.” Hollis , 760 F.3d at 541.

To determine the reasonable ness of the requested m odification, the burden that the requested modificati on would impose on the defendant (and perhaps on persons or interests whom the defendant represents) must be weighed against the benefits that would accrue to the plaintiff. This is a highly fact-specific inquiry. A modification should be deemed reas onable if it imposes no fundamental alteration in the nature of a program or undue fina ncial and administrative burdens.

Id. at 541–42 (internal quotation ma rks and citations omitted).

The district court held that the accommoda tion was unreasonable, reiterating its finding that C.A. did not need therap y at her house because she could obtain it elsewhere, and also finding that permitting a horse in a residentia l neighborhood would “fundamentally alter the nature of the [City’s] zoning scheme.” On appeal, the plaintiffs contend th at there were disputed
issues of fact as to the reas onability of their requested acco mmodation that precluded summary judgment to the City based on thei r evidence that C.A. would bene fit from therapy with a horse at her house and that permitting the horse to liv e at Anderson’s residence would not threaten public health or otherwise fundamentally alte r the zoning scheme. The City responds that Anderson’s requested accommodation is unreasonab le and would fundamentally alter its zoning scheme because the City’s legitimate interests in the health, aesthetics, an d property values of its residential neighborhoods are eff ectuated through enforcement of its zoning codes. The City further contends that these interests may be th reatened by the presence of a horse on Anderson’s property, pointing to the health co mplaints concerning Ellie, and that the City’s interests must be balanced against the benefit that th e accommodation would afford to C.A.
Factual disputes pervade the question of the accommodation’s reasonableness and the “highly fact-specific” balancing of the City’s interests against the plaintiffs’ that it requires, precluding summary judgment for th e City. First, the City questions the extent to which C.A.’s benefit from therapy with a horse would be diminish ed if she obtains this therapy at a local farm or stable, but the letter from Dr. Levin creates a factual dispute over whether C.A. could benefit from such therapy after traveling from her house, and this dispute cannot be resolved onNo. 14-3754 Anderson, et al. v. City of Blue Ash Page 27

summary judgment. While the City’s interests in public health, sanitation, and residential property values are clear, Anderson disputes the extent to which her requested accommodation would interfere with those interests, pointing to letters of support from her neighbors and the fact that she has secured a cleaning service to pr event the presence of a horse from creating unsanitary conditions at her house. Similarly, while C.A. has a clear interest in having the assistance of a miniature horse at her house, the City disputes the extent of the inconvenience imposed on her by not having the horse in her backya rd, pointing to the fact that C.A. can walk
without the horse.
Likewise disputed is the City’s contenti on that permitting the horse to remain at Anderson’s house would fundamentallyalter the nature of its z oning scheme. While protecting public health and property valu es are central to th e City’s interests, Anderson has produced evidence that the presence of one miniature horse at her hous e will not create unsanitary
conditions or devalue her nei ghbors’ property, supported not onl y by her own testimony but by signed letters of support from her current neighbors. She also te stified that she has retained a service to clean up animal waste, and ensure that unsanitary conditions will not reappear. As for the district court’s assertion that, because Ande rson lives in a residential area, “[a]llowing farm animals, such as miniature horses . . . in these areas fundamentally alters the zoning scheme,” we have long since rejected the notion that making an exception to a zoni ng scheme to permit something that would normally be forbidden auto matically amounts to a fundamental alteration.
See Smith & Lee Assocs. , 102 F.3d at 796 (“We are not convinced that an additional three residents will fundamentally a lter the nature of single-fam ily neighborhoods.”). Requiring public entities to make exceptions to their rule s and zoning policies is exactly what the FHAA does. The fact that the City banned horses fr om residential property does not mean that any modification permitting a horse necessarily amounts to a fundamental alteration.
We conclude that there are ge nuine disputes of material fa ct as to whether Anderson’s requested accommodation is reasonable and n ecessary to afford her and C.A. an equal opportunity to use and enjoy their dwelling, and so we reverse the district court’s grant of summary judgment to the City on the plainti ffs’ FHAA reasonable- accommodation claim.No. 14-3754 Anderson, et al. v. City of Blue Ash Page 28

2. Disparate Treatment
“To prevail on a disparate treatment claim [brought under the FHAA], a plaintiff must show proof of intentional discrimination.” HDC, LLC v. City of Ann Arbor , 675 F.3d 608, 612 (6th Cir. 2012). “Because a disparate-treatm ent claim requires the plaintiff to establish discriminatory animus, analysis of such a claim focuses on the defendant’s intent.” Hollis , 760
F.3d at 539. As with intentional-discriminati on claims under the ADA, “[t]his court therefore applies the three-step McDonnell Douglas test, which shifts the burden of production from the plaintiff to the defendant and then back to the pl aintiff in an effort to zero in on the specific intent underlying the defendant’s conduct.” Id. While the burden of pr oduction shifts, “[a]t all times the burden of persuasion rests with the plaintiff.” Id. at 538.
As their FHAA disparate-treatment claim, th e plaintiffs “incorpor ate [their] arguments
made as to intentional discrimination” under th e ADA. (Appellant Br. 53.) Likewise, for the
same reasons we stated in our discussion of intenti onal discrimination under the ADA, we find no evidence that the City acted because C.A. is an individual with a disab ility, nor that the City otherwise harbored discriminatory animus against the disabled. We therefore affirm the district court’s grant of summary judgmen t to the City on the plainti ffs’ FHAA disparate-treatment
claim.

3. Disparate Impact
Finally, the plaintiffs contend that the City violated the FHAA because its actions have had a disparate impact on C.A. and other disabled individuals w ho would benefit from the use of miniature horses at their houses. “To show disp arate impact [in violation of the FHAA], a plaintiff must demonstrate that a facially neutral policy or practice has the effect of discriminating against a protected class of which the plaintiff is a member.” HDC , 675 F.3d at 613 (internal quotation marks and brackets omitted). A “disparate-impact claim . . . turns not on
the defendant’s intent but inst ead on the broader effects of th e disputed housing practice.”
Hollis , 760 F.3d at 539. Plaintiffs alleging disparate-impact clai ms under the FHAA must first
show that defendant’s actions “caused handicapped individuals to suffer disproportionately more
than other individuals.” HDC , 675 F.3d at 613.No. 14-3754 Anderson, et al. v. City of Blue Ash Page 29

Anderson and the other plaintiffs contend th at Ordinance 2013-1 ha d a disparate impact
on C.A. and other disabled individuals who are unable to benefit from the use of miniature
horses at their houses. But Anderson fails to r ecognize that this ordinance specifically exempts any animals protected by federal law, including the FHAA. Thus, by its own terms, Ordinance
2013-1 has less of an impact on disabled individuals who rely on th e assistance of miniature horses or other animals than it does on the genera l population. We therefore affirm the district court’s grant of summary judgment to the City on the plaintiffs’ FHAA disparate-impact claim.

III. CONCLUSION
Because the qualitative differences between the fact-finding procedures available to Anderson during her criminal trial in the Ham ilton County Municipal Court and those available to her as a civil plaintiff militate against giving th at criminal judgment preclusive effect here, we
conclude that the district court erred in determining that res ju dicata bars this lawsuit. We affirm the district court’s grant of summary judgmen t to the City on the pl aintiffs’ intentionaldiscrimination ADA claim and disparate-treatmen t and disparate-impact FHAA claims. We reverse the district court’s gran t of summary judgment to the City in all other respects, and remand for further proceedings c onsistent with this opinion.