Well I did some research and found a few documents I'm going to provide our council to [hopefully] read. One was this one, it's written by an attorney, too - good stuff:
Urban agriculture is all the rage. It’s an exciting time, particularly for attorneys who practice and consult in this area, like I do. I’m signed up for two upcoming conferences in the next three weeks alone (one hosted by the Boston Bar Association and another, rescheduled due to a prior snow cancellation, by the Massachusetts Department of Agriculture/City Growers/Urban Farming Institute). Both of them will have policy/zoning/land use components. Just a few years ago these conferences would not have been so commonplace, much less well-attended, and certainly not by attorneys.
My professional interest in urban agriculture is always the zoning and land use legal issues because there are many (though personally, it’s about the excitement and growing support for growing food for oneself and the greater community, just like I do in my own backyard). So when I was reading a fantastic (though now slightly outdated) report just this weekend,“Urban Agriculture: A Sixteen City Survey of Urban Agriculture Practices Across the Country”, written and compiled by Emory Law School’s Turner Environmental Law Clinic in 2011, a disturbing issue naturally jumped out at me: the requirement, in some communities, of acquiring neighbor consent in order to raise backyard poultry (not as the sole criterion, but as one of many).
First, I am a full proponent of allowing backyard poultry in residential areas, including urban neighborhoods, provided there is a balanced set of regulations that adequately takes into consideration abutting properties (i.e. reasonable setback requirements for coops, proper waste disposal, prohibiting noisy roosters, etc.), the health of the birds (sanitation, proper food storage to prevent unwanted wildlife, etc.) and the birds’ owner’s desire for fresh eggs. If the regulations, application process and enforcement procedures are clear (and not overly burdensome) from the outset, then there should be no reason why anyone cannot have birds in their yard and live among neighbors peacefully.
This is why I do not support zoning codes and related application procedures that require obtaining neighbor/abutter consent as part of the approval process.* Until reading this report, I didn’t realize that there are some communities that actually have this as a requirement. I have read plenty of poultry-related zoning codes in the past as part of the research that I undertook for an article that I wrote for The Natural Farmer in 2011, and I don’t remember coming across any that had this requirement. But they apparently exist. For example, Annapolis, Maryland, Milwaukee, Wisconsin (featured in the Emory Law School report) and Maplewood, Minnesota each allow backyard poultry provided that the applicant obtain the written consent of their neighbors (in varying iterations).
When I became aware of this requirement, the first thing that jumped out at me is that such a requirement likely violates the due process clause, primarily because these requirements seemingly give neighbors unfettered (read: standard-less and arbitrary) grounds to refuse consent, with no appeal process for the applicant. Other questions come to mind. What if but one neighbor is a holdout but all others are OK with hens? What if there is a large rental building next door—is it the property owner or the occupants whom should be providing consent? Can a neighbor change his or her mind after the fact (i.e. once birds are living on the property)? If there are two owners on the deed, are both signatures required? What about foreclosed or vacant properties with no approachable owner available? It’s not a far stretch to say that sometimes neighbors just don’t get along or know each other well enough, for any number of reasons, and withholding consent might be tied to something completely arbitrary, and unfairly so to the applicant. It creates a slippery slope, as they say.
More to the point, I don’t think that these kinds of consent requirements are lawful. And there is some precedent that supports this notion found in other kinds of neighbor consent cases, such as State of Washington ex rel. Seattle Trust Co. v. Roberge, 278 U.S. 116 (1928), and Eubank v. City of Richmond, 226 U.S. 137 (1912). I have not found any reported cases that test backyard poultry-related provisions specifically.
I get what the cities and towns are trying to do by requiring neighbor consent—and I applaud them for even allowing a use that has some controversy—but they are not taking the right approach, much less one that will withstand legal scrutiny, in my opinion. Instead of the consent requirement, cities and towns should do their job of vetting applicants (with whatever reasonable application standards they see fit), but also require approved applicants to provide some kind of notice to neighbors that there will be poultry living next door. This notice could (and should!) contain specific information about the regulations in place (how many birds are allowed, location of coops, food storage, etc.) and whom to call when violations may exist. Municipalities, of course, must actually enforce the rules and deal with violations accordingly in order for it all to work.
And let’s not forget the folks who want backyard poultry. They need to do their part too, by reaching out to neighbors and educating them about the ways that poultry and people can mix harmoniously, and then lead by example. Of course, sharing eggs from time to time is not a bad idea either.
Neighbors will feel empowered if they know that there are rules that must be followed, and that there is someone to call if they are not. Giving prior consent just seems like an unnecessary hoop to jump through, and doesn’t hold much water to begin with.
*Because if cities and towns are going to do this for chickens, then why not dogs and cats too? What if someone doesn’t want a loud dog barking next to them, pooping all over the place, with runoff flowing directly into gardens and lawns that people have? What if someone doesn’t want cats coming into her yard, killing backyard birds? Shouldn’t they have a way to prevent someone from getting these kinds of animals too? People who oppose backyard chickens generally seem to oppose (or be worried about) noise, smell, and waste disposal. In other words, nuisances. But that’s why there are regulations and standards in place, and consequences for violations. Yes, prohibit people who cannot comply, but otherwise there should be no reason why a neighbor should be able to stop someone proactively from having hens (or dogs and cats!).