Rural West Tisbury May Favor Hens and Roosters - Legally

By JACK SHEA

West Tisbury is zoned as a rural agricultural town and there is
ample case law, some of it dating to the early 20th century, that
supports the rights of rural property owners to keep a flock of chickens
in the backyard.

This is the opinion of town counsel Ronald H. Rappaport, who told
the town building and zoning inspector in a letter this week that it is
his call to make in a dispute between two Longview neighbors over noisy
roosters.

Dyan Redick, Kurt Freund and their 14 chickens and three guinea hens
are the subject of noise complaints filed with the town last month by
Bob and Kathy Harris, their neighbors in the Longview section of
Lambert's Cove. Zoning inspector Ernest Mendenhall sought the
advice of town counsel last month as he tried to evaluate whether the
complaint rises to the level of a zoning violation. The Harrises filed
their noise complaint on July 3 after they hired a sound expert to
measure the decibel levels of the roosters crowing next door. They also
claimed violations of state environmental laws, but the Environmental
Protection Agency has declined to take the case.

In a six-page opinion issued this week that includes lengthy
citations to Massachusetts cases decided over the past 102 years, Mr.
Rappaport said Mr. Mendenhall can make his decision with the full force
of the law behind him.

"As you might imagine, Massachusetts Courts have addressed
disputes between neighbors stemming from the housing of hens and
roosters," Mr. Rappaport wrote, adding: "In my opinion, a
reviewing court would be likely to defer to your reasonable judgment,
and, if appealed, to the reasonable judgment of the zoning board of
appeals."

Among other things Mr. Rappaport's opinion cites four
instances of case law from 1905 forward in which noise and odor
complaints relating to keeping fowl and horses were dismissed in rural
Massachusetts communities.

"Read together, these cases stand for the proposition that if
the keeping of chickens, roosters and hens - in reasonable numbers
- is a customary practice . . . . then your determination as to
whether a zoning violation exists turns on a fact-specific assessment of
whether the number of animals involved, in light of the size of the
affected lots, is such that their presence present a substantial and
unreasonable interference with the abutters' use and enjoyment of
their properties.

"A consistent theme throughout the above cited cases is that
the courts will afford deference to both the building inspector and the
zoning board of appeals in making these decidedly local and
geographically specific determinations," the town attorney wrote.

Mr. Rappaport said his opinion also extends to the West Tisbury
board of health, which also received the July 3 complaint from the
Harrises.

Mr. Rappaport quoted directly from the town zoning bylaw, whose
stated goal in part is: "[P]rotecting the town's rural and
natural character including its farms, forests, wetlands, ponds,
beaches, hilltops and other open spaces." He also wrote that the
stated purpose of the rural zoning district where the Harris and Freund
properties are located, "is to maintain the town's historic
pattern of rural settlement, characterized by large expanses of open
spaces and unspoiled views from the road. scattering of residences and
small businesses and clustered development surrounded by open
space."

He described the West Tisbury zoning bylaw as permissive in spirit
rather than prohibitive and noted that the section of the bylaw
governing allowable uses "is intended to protect the character of
West Tisbury's existing landscape and historic settlement while
allowing flexibility of land use and new development that is in keeping
with the town's rural character." By contrast, Mr. Rappaport
included language from the Tisbury zoning bylaw which is far less
permissive.

In the end, the town attorney concluded: "While there is no
bright-line test to determine whether any particular number of animals
or noise level constitutes a zoning violation, such a finding would
require you to determine that the number of roosters, chickens and
guinea hens is substantially disproportionate to what is accepted as
customary in this neighborhood . . ."