Court says man can keep ‘emotional support emu’ in suburbia

The Daily Record
By BridgeTower Media Newswire
August 11, 2023

A Virginia man was allowed to keep his emotional support emu after the trial judge found that the exotic bird was a “companion animal” rather than “livestock” under the municipal and state codes.

The Virginia Beach resident kept the emu named Nimbus as alternative therapy to calm his anxiety and treated the bird as a family pet. But not all of his neighbors in the Kempsville area were keen on having the world’s second largest bird — they can grow as tall as 6 feet and weigh more than 100 pounds — in such close proximity.

Complaints brought citations from animal control for keeping livestock within the city. The case went to trial in the Virginia Beach Circuit Court.

In his opinion, Judge Kevin M. Duffan queried, “What is a trial court to do when presented with evidence that an animal clearly defined as livestock is also defined as a companion animal?”

Lacking appellate court guidance, the judge looked to other code sections and a North Carolina appellate opinion. Duffan noted that the statute, at least in part, determines what animals fall into the two categories based on their owners’ intentions.

“Defendant expressly testified at his trial that he is not planning on eating Nimbus, and there has been no evidence suggesting that Nimbus is being raised for fiber,” the judge wrote. “While it is highly unusual that someone would keep an emu as a pet — or as a companion animal — while also residing in the heart of suburbia, Defendant has shown that it is not impossible.”

Nicholas Olenik raised Nimbus, a domesticated pet emu, from a hatchling. Since childhood, Olenik has suffered from social and emotional maladies that cause him anxiety. Nimbus is a form of alternative therapy.

Nimbus lives at Olenik’s home in the suburban Kempsville area of Virginia Beach, which is zoned for residential use. After receiving a call, Virginia Beach Animal Control cited Olenik for violating the municipal code by keeping livestock in the neighborhood.

Olenik testified at trial that he keeps Nimbus as a companion animal to calm his anxiety. A letter from Fairfield Psychological Associates confirmed this form of therapy.

Nimbus primarily lives and sleeps indoors on Olenik’s property. Olenik walks Nimbus on a leash and harness when not on his property. A picture admitted into evidence showed Nimbus curled up on the floor napping with Olenik’s dog.

“The record is clear that Nimbus is treated like a family pet,” Duffan said.

The Virginia Beach municipal code prohibits the keeping of livestock in non-designated parcels. But companion animals are exempt when they are kept as household pets on the owner’s premises.

The municipal code refers to the Virginia code for definitions of “livestock” and “companion animal.” Duffan said emus fall within the Virginia code definition of “livestock” under the category of ratites, a group of running, flightless birds.

But the judge also found that emus could be an exotic bird under the code’s definition of “companion animal.”

Without appellate opinions on the issue, Duffan looked to other law “in an attempt to reconcile the overlap in this particular Venn diagram.”

Duffan found an analogous case from the North Carolina Court of Appeals in 2011’s Steiner v. Windrow Estates Home Owners Association, Inc. There, the homeowner kept two goats as pets on their property and was cited for keeping livestock.

With similar definitions, the Steiner court looked to the ordinary meaning of livestock — “animals kept or raised for use or pleasure; esp: farm animals kept for use and profit” — and pets — “a domesticated animal kept for pleasure rather than utility.”

Because the plaintiffs intended to treat the goats as pets, the court found that the goats could be kept as long as the plaintiffs didn’t use them for a commercial purpose.

The court found Olenik not guilty of violating Virginia Beach Municipal Code § 5-543 and dismissed the matter with prejudice.

The July 27 decision is Commonwealth v. Olenik.

Nick Hurston is a reporters for Virginia Lawyers Weekly.