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 . . ."