Friday, Jan 15–Residents Must Live On Same Property As Chickens

BERLIN – In a last-minute change, the Berlin backyard chicken ordinance will require chicken owners in Berlin to live on the same property as their flock, after a citizen request made  at the Berlin Town Council meeting Monday night.

The ordinance allowing and regulating poultry keeping at single-family residences in Berlin follows the rejection of an ordinance in November banning poultry or wildfowl keeping outright.

Many speakers at a public hearing on that ordinance in November expressed strong support for backyard poultry, however, and opposition to the ban, saying that the practice should be regulated, not eliminated.

The Mayor and Council agreed and tasked staff with creating regulations to govern hen keeping in Berlin in a way that would eliminate the problems raised earlier this year.

The new ordinance, introduced in late December, restricts homeowners to no more than six hens, which must be given proper shelter. The ordinance also requires chicken owners to keep enclosures clean to discourage vermin. Hens may also only be kept at single-family residences.

A public hearing on the new regulations held Monday night, yielding just two speakers, resulted in a text change to the ordinance requiring that residential properties that are home to chickens also be occupied.

Backyard chickens have been kept here and there in Berlin for decades without a problem, until neighbors complained last fall about poultry kept by Elizabeth Fisher. Town officials determined that she had violated the zoning code by keeping chickens, geese and a rooster at her Berlin house.

Neighbors complained that not only were chickens, a rooster, geese and ducks kept at the Fisher property, they were not properly housed or cleaned up after and made too much noise. Another concern that came up over the course of the case, according to neighbors, was that Fisher did not live at the property and was not available to care for the birds in her yard or handle problems that came up, such as excessive bird noise at night.

Ann Pollack of Ann Drive, a neighbor of Fisher’s, raised this point once again Monday night, requesting a modification of the ordinance.

“My concern was that nowhere does it indicate you must reside on the property or anyone must reside on the property where chickens are kept,” she said. 

Determining whether someone lives at a property is difficult, according to town officials.

“That’s always a challenge because a lot of our residents live here seasonally or part time,” said Berlin Mayor Gee Williams. 

Legally determining whether someone lives at a property is difficult even for state and federal governments, according to Williams.

“It is an interesting issue. I’m not sure it’s easily solvable. A lot of this comes down to people being respectful of their neighbors,” said Williams.

Berlin resident Denny Bliss said Pollack was simply looking for the ordinance to include the occupancy requirement.

“I believe what Ann’s saying is she just wants it in the rules it has to be a permanent residence. She’s not really talking about the enforcement of it,” said Bliss.

In case there is a challenge in the future to a residency issue, Planning and Zoning Director Chuck Ward’s office would have to enforce the occupation requirement.

“The occupation of a dwelling is extremely difficult in a legal instance to determine,” said Ward.

If the homeowner gets mail at the residence and the chickens are taken care of but the homeowner travels extensively, neighbors might complain that the ordinance is being violated, Ward said.

Zoning inspections would then have to be undertaken on that property, which could include inspections at odd hours, to determine if that house qualifies as unoccupied, according to Ward.

The town cannot make zoning violation decisions based on hearsay from neighbors, Ward said.

Williams did not think that enough residents would choose to keep chickens to pose a problem.

“It may be a challenge but the first line of defense will be the neighborhood,” Williams said.

The town staff can research occupation issues if a property is reported as a nuisance because of apparent non-occupation, Williams said. He would rather see the town err on the side of requiring chicken owners to be in residence.

“That resident always has the chance to come to the council and appeal the situation,” said Williams.         

“If the council cares to amend, it you can certainly do that,” said Berlin town attorney Dave Gaskill.

The town council added three words to the clause limiting hens, changing the requirement to “single-family residences which are occupied.”

Councilwoman Paula Lynch suggested that staff bring back the corrected ordinance in two weeks, at the next town council meeting for approval.

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