Friday, April 19, 2013

CLUCK Responds to North Port Chicken Concerns

Based on Testimony and Questions at the April 5th Planning and Zoning Advisory Board meeting City Staff identified eight concerns raised by the PZAB. Listed below are those concerns and some preliminary CLUCK responses along with selected excerpts from Illegal Fowl: A Survey of Municipal Laws Relating to Backyard Poultry and a Model Ordinance for Regulating City Chickens, (a 33 page objective review of chicken keeping in the top 100 most populous cities in the United States) by Jaime Bouvier, who is Visiting Legal Writing Professor, Cleveland-Marshall College of Law Copyright © 2012 Environmental Law Institute®, Washington, DC.

CLUCK presents this analysis in advance of the City of North Port hearing that will take place at 6:00 pm. on Monday April 22nd. 

1) Who will regulate cage specifications? Coop or cage specifications in the City of Sarasota are, for the most part, performance-based. While there are specific square foot requirements, other requirements can be solved by the owner. For instance, the coops must be movable, but it does not specify if that has to be using wheels, skids, or lifting. See 5. Coop Requirements below.

2) Is a permit required? Staff is anticipating (proposing?) that permits be issued through the building department. This is a major departure from the system in place in the City of Sarasota, which does not require a permit. At the January workshop, the direction to staff was to use the City of Sarasota ordinance as a model, so one has to ask where the permitting requirement originated? Adding a permitting requirement increases costs for both residents and the City. The City should consider allowing chickens and coops without the need for permits or licenses. See 9. Permit Requirements, below.

3) What about those neighbors that do not want to live next to chickens? This is an important question. It presumes that neighbors are entitled to some sort of veto power over their neighbor's activities. But this is America, where a man's (or woman's) home is his or her castle and we allow people to do what they want in pursuit of life, liberty, and the pursuit of happiness. Unless we choose to live in a community with strict HOA covenants, neighbors do NOT have the right to say what pets their neighbors have. The exceptions occur when one neighbor creates a nuisance. That should result in an enforcement action, whether the nuisance is barking or dangerous dogs, squawking parrots, or a crowing rooster.

4) What about property values? No information or testimony has been brought forward at any level that backyard hens decrease property values. In fact, a recent article documents the fact that chicken coops are being included in some real estate ads as amenities. One prominent Sarasota realtor said "If your neighbor has three lawn ornaments or paints their house pink, that will have more effect on the ability to sell your house than if they have backyard chickens." See "D" at the bottom, from a recent Environmental Law Review article.

5) What will be the impact on wells? The photo below shows chicken droppings in relation to US quarters. The idea that this amount of waste could affect potable water wells in neighborhoods with septic tanks is chilling because this is a trivial amount compared with the what enters the surficial aquifer via the septic systems, which treat far more human waste. We presume and hope potable wells in North Port are accessing a deeper aquifer that is isolated from septic tank effluent (as well as dog waste -- one Springer Spaniel produces as much waste as six chickens!)

Yellow triangle arrows point to chicken droppings - insignificant compared with dogs, which are allowed.

6) What is the cost to City to regulate? To properly answer this question data would need to be produced documenting the current level of effort (and cost) the City now expends reacting to chicken complaints. Code enforcement is already responding to roosters and other complaints. So the real question should be: Will chicken complaints increase, decrease, or stay the same after backyard hens are legalized? See 9. Permit Requirements below.

The experience in many communities is a decrease or no increase in complaints. CLUCK believes this results from two phenomena: 1) some current violations would be compliant if hens were allowed and, 2) people will attempt to come into compliance to ensure they will be able to keep their chickens. Right now there is no greater penalty for having a rooster or two dozen birds --establishing reasonable limits creates an incentive for people to abide by the law -- even if they are now lawbreakers. 

CLUCK believes that enforcement actions should be directed at real problems: animal abuse, animal hoarding, and cockfighting (and there is no cockfighting without loud roosters). 

Two years into allowing chickens in the City of Sarasota, all six candidates at a forum were asked if they were comfortable with the chicken ordinance. All six said they were. 

7) How many citizens really want this? CLUCK does not know how many citizens would be interested in having backyard chickens, but that really shouldn't be a determining factor. If it is reasonable, it should be allowed, even if only one family wants chickens. And if it is unreasonable it should be denied, even if a majority of citizens want chickens. Consider this: if the number is very small, then by definition it will have almost no effect on the community. 

8) Is there a minimum lot size? No, and neither is there in the City of Sarasota. Keep in mind 75% of the largest cities in the US allow hens, which argues that small lots need not be problematic. See Section 3 below.

5. Coop Requirements

Many cities regulate how the chicken coop should be built and maintained. There is a broad range in these regulations, and no two ordinances are alike . Some simply decree that it is unlawful for chickens to run at large, and thus implicitly mandate that the coop be constructed in a secure enough way so that chickens can’t easily escape . Some appear to look out for animal welfare by decreeing that chickens should be provided adequate food, water, and shelter in sanitary conditions . And, some appear to try to proactively head off any potential problems by regulating the dimensions of the coop, how it must be built, and exactly how often it must be cleaned. (more information follows in the original document).

9. Permits (discussion of model ordinance proposed by the author)

The model ordinance, following the ordinances of many other cities, does not require a permit, as long as the ordi- nance is followed . Because chickens are novel to many communities, city officials naturally want to closely monitor how well owners are maintaining their flocks . But, regulating through a permitting or licensing process, dedicating a city official to overseeing it, and maintaining the records that such a process will require appears to be an inefficient use of city resources . It is also expensive for owners to pay permitting fees on an annual basis and is a barrier to entry to keeping chickens to those with low or modest incomes . The fees that some cities charge, over $50 annually, effectively prohibit poorer people from owning chickens .
The permitting process, moreover, does not necessarily give the city more control . If the city prohibits hens unless its ordinance is followed, it can enforce its laws in the same way that it enforces its laws against errant dog, cat, or bird owners . Requiring a permit, thus, appears to provide an unnecessary, inefficient, and expensive layer to the process of legalizing hens .
The model ordinance does require a permit, however, if the chicken owner puts forth a proposal for why she should not have to comply with the city’s regulations—for instance if the owner wishes to keep more than the maxi- mum amount of hens, wishes to keep hens in a multi-family dwelling, wishes to keep hens on a parcel of land that is unconnected to a dwelling, or wishes to keep a rooster.

D. Property Values

Another common concern is that keeping backyard chick- ens will reduce surrounding property values .108 Several studies, however, have found that agricultural uses within the city actually increase property values .109 Community gardens increase neighboring property values by as much as 9.4% when the garden is first implemented .110 The property value continues to increase as the gardens become more integrated into the neighborhood .111 The poorest neighbor- hoods, moreover, showed the greatest increase in property values .112 Studies have also found that rent increased and the rates of home ownership increased in areas surround- ing a newly opened community garden .113

Studies concerning pets, moreover, find that apartment owners can charge higher rent for concessions such as allowing pets .114 Thus, accommodating pets has been shown to raise property values .

As of yet, no studies have been done on how backyard chickens in particular affect property values, but given that communities express little concern that other pets, such as dogs or cats, reduce property values, and given research showing that pets and urban agricultural practices can increase them, there is little reason to believe that allowing backyard chickens will negatively affect them .115

3. Lot Size Should Not Be Restricted (discussion of model ordinance proposed by the author)
The majority of cities do not require a specific lot size before a person can keep chickens. Lot size restrictions, moreover, often do little more than prohibit the majority of city residents from keeping hens. The concern that cities are mainly addressing through lot size, that of making sure that chickens are not located too close to neighbors, can better be addressed through setbacks .
For this reason, the model ordinance does not restrict through lot size . If a city has a wide variety of lot sizes, however, a city may wish to allow more hens for larger lot sizes . The city, for instance, can legislate a maximum number of chickens for lot sizes of 1⁄2 acre or below, and then increase the number of chickens for larger lot sizes.