Fair or Fowl? 

Here a cluck. There a cluck. Everywhere a cluck cluck. Old MacDonald had a farm. Now it’s come to your community.Chickens

It seems the chicken has packed up its bags, left the farm and crossed the road to get to community associations.People are turning to backyard chickens for the fresh eggs, to take care of bugs and pests on their properties, and to use their nutrient-rich waste for fertilizer. It’s not uncommon today to find backyard chickens making themselves at home in communities large, small, urban and rural. The trend has even embroiled a politician and reality TV star.

Bruce Braley, a former U.S. Representative from Iowa, lodged a complaint with his Brooklyn, Iowa, homeowners association about his neighbor’s chickens repeatedly roaming into his yard. He was campaigning for the U.S. Senate at the time and narrowly lost out on the seat. Jase Robertson, a star on A&E’s Duck Dynasty, was fined in 2013 by his association in West Monroe, La., for keeping chickens in his yard; he didn’t realize the documents banned fowl.

State and local governments are scrambling to decide how to regulate these backyard chickens. Meanwhile, community association leaders are examining their governing documents to see what, if any, provisions give them the power to prohibit or regulate fowl.

Arizona legislators raised the issue during the 2014 session, considering a bill that would have preempted all local laws and ordinances. Although it didn’t pass, the proposed bill would have prevented a municipality from adopting a zoning ordinance that would prohibit a resident of a single-family detached home from keeping fowl in the backyard of the property. Municipalities would have been able to restrict the number of fowl and prohibit roosters unless they were incapable of making noise.

The bill came very close to making it to the governor’s desk.

Most backyard chicken regulations are found in municipal ordinances. In Denver, for example, individuals may keep up to eight chickens or ducks and up to two dwarf goats, but they must obtain a restricted livestock or fowl license. The license is valid for one individual on one property, is nontransferable and is valid indefinitely. Individuals who are granted the license must agree to the following requirements:

  • They may not keep roosters, drakes or intact male goats older than six weeks.
  • There must be at least 16 square feet of permeable land area available for each duck or chicken plus adequate enclosed shelter space.
  • There must be at least 130 square feet of permeable land area available for each dwarf goat plus adequate shelter space.
  • They must install adequate fencing to prevent the chickens, ducks or dwarf goats from escaping.

Regardless of any state or local measures on backyard chickens, associations should be able to determine whether to prohibit or regulate fowl. The Arizona proposal wouldn’t have superseded association documents; the Denver ordinance doesn’t trump them now.

Some association governing documents, especially older ones, state that no poultry shall be kept or bred. A prohibition of chickens holds the most weight if it’s adopted as part of an association’s declaration instead of being adopted as a rule or regulation. If a declaration doesn’t prohibit chickens, associations can turn to their regulations regarding pets or animals, businesses and commercial use, and nuisance. These aren’t silver bullets, but they can help.

Many associations have a provision in their documents, for example, that states something to the effect of “commonly accepted household pets are allowed” or “dogs and cats are allowed”; the number and size of pets often are regulated. An association may be able to argue that chickens would be excluded. However, if “commonly accepted household pets” isn’t defined, an owner may be able to argue successfully that a chicken is a pet.

In addition, some associations limit the use of a lot or unit for purely residential use. If an owner is selling fresh eggs at the local farmers market, the association may be able to prove the individual is using the property as a business. Other association provisions state that businesses are allowed so long as they are not detectable by sight or sound. If the chickens are detectable from outside the property, again, the owner may be violating the declaration.

Associations also could turn to a catch-all nuisance provision. It’s used to enforce everything from loud parties to excessive dog barking and, depending on the circumstances, chickens. For example, if association lots are in close proximity to each other, the noise from the animals could prevent neighbors from getting a good night’s sleep. Additionally, if the coops aren’t properly kept, odors could disturb neighbors.

While nuisance provisions can be an effective enforcement tool, they also can be problematic due to the inherent subjective nature of what constitutes a nuisance. What bothers one individual may not bother another. This puts courts in a difficult position because they are left to insert their judgment in determining whether a nuisance exists.

Associations need to keep detailed documentation of a perceived nuisance or to prove an owner is using the chickens as a commercial or business venture.

Community association leaders will need to pay attention to any state or local decisions regarding backyard chickens and other urban farm animals. As more owners grow interested in the trend, conflict is bound to come to associations. If your governing documents don’t specifically prohibit chickens, you may want to examine taking the issue to owners.

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