Ben Boettger/Peninsula Clarion Cristal Barton rubs the neck of her horse Major outside the house she shares with her mother Kim Garretson on Nov. 4, 2015 in Kenai. The Kenai Planning and Zoning Commission denied Garretson a conditional use permit needed to legally keep Major in Kenai; she will appeal the decision on Dec. 8. Because Barton is autistic and the horse is prescribed as treatment, denying the permit may be discrimination under the Fair Housing Act.

Ben Boettger/Peninsula Clarion Cristal Barton rubs the neck of her horse Major outside the house she shares with her mother Kim Garretson on Nov. 4, 2015 in Kenai. The Kenai Planning and Zoning Commission denied Garretson a conditional use permit needed to legally keep Major in Kenai; she will appeal the decision on Dec. 8. Because Barton is autistic and the horse is prescribed as treatment, denying the permit may be discrimination under the Fair Housing Act.

Disabled Kenai resident, neighbors, city fight over horse kept in neighborhood yard

Editor’s note: This story has been changed to state that the Disability Law Center of Alaska will represent Garretson in her Dec. 8 appeal to the Kenai City Council. The DLCA has not yet decided whether to represent her in a potential lawsuit against the city.  

An unpermitted horse in a tight residential area of Kenai is lowering property values according to neighbors, but is essential for an autistic woman’s emotional health, according to its owner.

Kim Garretson said Major, the black 35-year-old quarterhorse she keeps on her land in Kenai’s McCann subdivision, keeps her autistic daughter, Cristal Barton, well.

“The only reason we consider that she’s stable is because of him,” Garretson said of the horse.

Kenai Municipal code prohibits keeping livestock on property smaller than 40,000 square feet — an area little less than an acre. Garretson lives with Barton on 10,000 square feet near 4th Street’s dead-end at the boundary fence of the Kenai Airport, a property bounded on two sides by closely-spaced neighboring houses. To legally keep Major here, Garretson must be granted a conditional use permit from the Kenai Planning and Zoning Commission, which denied the permit in a meeting on Oct. 14. Garretson will appeal their decision before the Kenai City Council in a hearing on Dec. 8. She said that if the permit is denied again, she will bring the question to court.

“I’m going to continue the fight,” Garretson said. “He is an emotional support animal, and because of that, if they say no again, it’s discrimination because of what he is. Cristal has a right to enjoy her dwelling where she lives with her animal.”

Because Major has been medically prescribed to Barton for her mental health, not permitting the horse to be kept on the property could be a violation of the federal Fair Housing Act, which prohibits “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford (disabled people) equal opportunity to use and enjoy a dwelling.”

Barton and her horse

Barton, 26, is diagnosed with bipolar disorder and autism. When asked about her condition before meeting Major, Barton said it made her feel angry.

“I pretty much hide from the world,” Barton said.

Garretson said Barton had previously used anti-psychotic and anti-depressant drugs, which she said she had quit during the four years she had owned Major. During that time, Garretson said Barton would avoid speaking, rarely use complete sentences, and spent as much 23 hours isolated in her room.

Barton said it was another horse that first drew her out: Fancy, her mother’s mare. Fancy — who has since died — was kept in horse boarding facilities rather than on the family’s Kenai property.

“I wanted a horse because my Mom got a horse,” Barton said.

“And my grandma said if you want something bad enough, you point at any object or picture and say ‘Lord, I want that one.’ And I point at Major on Craigslist, that was during my college year, and I said ‘Lord. I want that.’”

Garretson said Major was a rescue horse whom she found on Craigslist and brought from Kasilof in December 2010. Major was underfed when he arrived, weighing between 300 and 400 pounds, with ribs showing. After eight weeks of feeding, Garretson said, he had begun to approach his breed’s healthy weight of around 900 pounds.

Major was kept in various places before coming to Kenai.

“We’ve had him at other people’s places, and they’ve took care of him,” Garretson said. “But when you have other horses and one of them’s not yours, they don’t give him the attention that he needs. They changed his diet without our permission. Everybody’s taking good care of him, but they don’t take care of him like we do.”

Garretson said that due to Major’s age, she has to maintain his weight by feeding him only grain without hay, and by allowing him to eat at will rather than keeping the kind of restrictive feeding schedule more usual with horses. At one boarding house, Garretson said Major had fought with another horse, which later died. Boarders, she said, are now reluctant to take Major in.

Barton began riding Major in rodeos in 2011, winning some team-roping competitions, she said. She no longer rides the horse because of age-related problems with his shoulder and hooves, but said she sometimes walks him on the beach.

“When Cristal’s upset, she goes and talks to him,” Garretson said. “And when Cristal’s confused, she goes to talk to him. And when she comes back in, she’s happy.”

The permit

Garretson said that during Major’s rodeo career she had kept him in Kenai occasionally. When she decide to move him permanently to Kenai, trouble began. According to investigation reports from the Kenai Department of Animal Control, Kenai Mayor Pat Porter complained of a horse tied to a tree stump on Garretson’s property on April 5, 2014. At the time, Garretson told Animal Control that she had a shelter for the horse built, which she planned to install after the frozen ground thawed.

Three days later, on April 8, Garretson tried to make the horse’s residence legal by applying for a permit from then Animal Control Officer Cora Chambers. The Kenai Animal Control Officer can grant temporary livestock permits for up to 2 years “for the keeping of livestock for educational or youth activities, such as 4-H, Future Farmers of America, or Boy/Girl Scouts on lots not otherwise eligible,” according to Kenai city code.

An April 16, 2014 letter to Garretson from then-Chief Animal Control Officer Cora Chambers said the permit would not be granted “because it does not fit into the appropriate parameters of the code,” and in order to keep the horse on her property, Garretson would have to seek a conditional use permit from the planning and zoning commission.

“Why the (Animal Control) permit was denied was because it couldn’t be determined that it (the horse) was for 4-H, Future Farmers of America, or Boy Scouts or Girl Scouts,” Kenai City Planner Matt Kelley told the planning and zoning commission on Oct. 14. “It wasn’t for an educational purpose, so they had to deny the permit.”

When Garretson submitted her application for the planning and zoning permit on August 24, 2015, Major was named for the first time as an emotional support animal.

“I’d been asking about two years on the rodeo grounds how to turn him into a therapy horse,” Garretson said. “Because basically that is his function. He really does a whole lot for Cris.”

Being designated an emotional support animal requires the animal to be prescribed by a doctor for the mental health of a person with a recognized disability. According to medical records provided by the family, physician Dr. Ray Lynn Carlson of the Kenai Medicenter prescribed Major to Cristal as a therapeutic animal on August 12, 2015. Dr. Carlson declined to be interviewed for this story.

Neighbors disagree

Prior to the planning and zoning commission’s permit decision, Kenai administrators compiled a report on the horse. They found that Major is currently kept in a clear-cut area of Garretson’s yard — within an approximately 4000 square-foot corral of movable fence — and sheltered in a moveable barn which the city required Garretson to install after the 2014 complaints.

The ten permit conditions suggested in the report include installing rubber flooring for the barn and sand in the corral area, containing water-runoff from the corral, for Garretson to apply for a permit for Major’s barn (a building over 120 square feet, requiring a permit in Kenai), and for Major’s manure to be shoveled up and stored in a sealed bin before being dumped in the Kenai Peninsula Borough landfill, a task Barton presently performs.

The staff recommended approving the permit, stating in the report that “the value of the adjoining property and neighborhood will not be significantly impaired” by permitting the horse.

Some of Garretson’s neighbors and other Kenai residents contested this claim. Relator Darla Springer, manager of Springer Real Estate Group and wife of planning and zoning commissioner Robert Springer, wrote to Kenai City Planner Matt Kelley that a horse in a residential area is “not only unsightly, it is a detriment to the neighborhood and to the adjacent neighbors that (will) be affected dramatically with the value of their homes if they would like to consider selling.”

Faith Hampton, owner of a neighboring lot, said she had a similar feeling when looking from her window.

“Nobody’s going to buy my house if they have to come in here and look out the living room window at the horse,” Hampton said. “There’s not enough room over there for the horse… there’s not enough acreage. The view’s not that good anyway, but the horse doesn’t add to it.”

Former Kenai resident Karen Mahurin owns two lots adjacent to Garretson’s, though she moved to the Oregon coast after retiring several years ago. She was also concerned about the possible value of her property because of the clear-cutting Garretson did to create a corral for Major, and the horse itself.

“If you go out there she has totally cleared every single tree off her property,” Mahurin said. “There would not even be a buffer between her property and mine.”

Mahurin, a former Kenai Planning and Zoning Commission member, also said she didn’t “trust her (Garretson’s) motives.” In a Sept. 15 email to Kenai city planner Matt Kelley, Mahurin characterized Garretson’s denied permit application as “an attempt to circumvent the previous decision by the City of Kenai,” referring to the permit Garretson had previously sought from the Kenai Animal Control Department.

Springer said that she also doubts the application is being made in good faith, writing to Kelly that Garretson and Barton were “almost threatening the City to allow them to do something no one else is allowed to do because of a ‘prescription’ by a physician.”

When asked in an interview if she questioned the validity of Carlson’s prescription, Springer said she did not consider it important.

“I don’t view this as that at all,” Springer said. “To me, this is just like: If I need to move a horse into a property in the city, I need to follow the rules… The regulation has nothing to do with who it is. It’s just what it is and where it is. In my opinion, it was asking for special treatment after the fact.”

A second property Garretson owns, about 0.3 miles away on Kenai’s 4th street, is 1.25 acres — large enough for Major to be kept without violating Kenai code. Garretson said this land, where she has been building a new house, would be a poor location for Major and would separate him from Barton.

“Unfortunately, there’s no water,” Garretson said of the property. “It’s rough-cleared land, so there’s holes and roots and piles of crap he can get into and break his legs.”

A denial and appeal

After debating the permit application on Sept. 23, planing and zoning commissioners voted to postpone the decision until the next meeting in order to visit Garretson’s property. At their next meeting on Oct. 14, the seven-member commission voted 5-2 to deny the permit.

“…I have to mention that I am objecting to this for the possibility of adverse odors that could be happening,” Commissioner Glenese Pettey said at the Oct. 14 meeting. “I also have to object because of aesthetics, and the diminished property values because of the aesthetics of that surroundings. And also taking into consideration the past performance of the individual who’s making the request.”

Commissioner Kenneth Peterson said that although he originally intended to vote against giving the permit, the site visit had made him “impressed with the cleanliness of the paddock area.”

“I certainly did not expect it to be in that condition,” he said. That, and the staff’s recommendation had made him favor giving the permit.

The permit was denied, with commissioners Pettey, Springer, Diane Fikes, Patrick Focose, and James Glendening voting against it.

Barton said she spent nine nights following the meeting in Major’s barn with a sleeping bag.

The Anchorage office of the Disability Law Center of Alaska, a nonprofit law firm that functions as a federally-mandated protection and advocacy agency for people with disabilities, will represent Garretson in her Dec. 8 appeal to the Kenai Council. Disability Law Center staff attorney Anne Applegate wrote in an email that Garretson had contacted the group through a hotline. The Disability Law Center has not yet decided whether or not to represent Garretson in a prospective lawsuit, should the permit be denied again. 

“It’s something that’s of compelling interest, not just to our office, but to anyone who wants to have an exemption of a zoning code for the benefit of their use enjoyment of their house,” Applegate said.

Applegate named the conditions under which the city would have to concede the permit.

“Cristal and her family have to demonstrate that her disability creates conditions and situations that have an adverse impact on her ability to use and enjoy her residence the same way that nondisabled people enjoy theirs,” Applegate wrote in an email. “They have to demonstrate that there is something that happens when she is with her horse that helps reduce or eliminate the adverse impact, or helps ameliorate the conditions and situations that her disability creates. After that, it is up to the City to prove that it is somehow not reasonable to allow her to have Major close to her, on the property.”

 

Reach Ben Boettger at ben.boettger@peninsulaclarion.com

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