- Nov 7, 2013
- 3
- 0
- 7
Here’s a quick (as possible) recap of my chicken legal troubles:
I received a letter from the zoning enforcement officer (ZOE) that I had to remove my 7 hens because “this constituted and agricultural use” and agricultural uses are not permitted within the Village of Champlain.
I chose to request that the Zoning Board of Appeals (ZBA) offer an interpretation of the law.
The statute says that you can only have 2 things in an R1 district: Single family homes, and accessory uses or structures. The statute defines accessory as:
A use or structure on the same lot and of a nature customarily incidental and subordinate to the principal use or structure, such as garages, outbuildings, and swimming pools, energy collection devices and the keeping of domesticated animals.
I am a member of the the ZBA, so I recused myself and made my case to the remaining members. I lost 2 to 2 (a 3-member majority is required). The 2 members who voted against me, did not offer an explanation. I suspect that their motivation was that the prospect of “farm animals” in the village (someone could have a cow!) was unnerving and they ruled not based on what the language said but on what they wished it meant.
So I filed an Article 78 petition with the New York State Supreme court (this is the avenue by which one can appeal and administrative decision by a governmental body).
Unfortunately I lost my Article 78. The justification for the ruling was the according to case law (precedent) The supreme court shall defer judgement to the local body unless that body can be shown to have acted “irrationally” (that is, I needed to show irrationality rather than just poor judgement). He believed that it was “not irrational to believe that domesticated animal could be interpreted as “dogs and cats”. That is in spite of the fact that, at each level, I provided multiple cited definitions of “domesticated animals” which included chickens. While the Village’s attorney answered that my interpretation was “preposterous” he provided no cited definitions to the contrary.
I believe that my tactical error was making a logical argument rather than a legal one, providing the judge with a “safe” response.
I am considering once again di$hing out court fees to submit the next level of appeal. This is likely to require some legal coaching. Help. I’m not looking for someone to write an appeal but perhaps to help locate case law to support my position and to review the appeal that I produce.
Possible basis for appeal could include:
1. Since the ZBA did not offer any “findings of fact” then the ruling was, by definition, “arbitrary and capricious”
2. The ZBA did in fact act irrationally if all of criterion for a accessory use was met and yet ruled that this use was prohibited
3. I’m sure there is case law (I just have to find it) to support the idea that if a statute is written vaguely, that the court should interpret the statute as broadly (that is favor the homeowner) as it is the responsibility of the lawmakers to be specific. Consequently a narrow interpretation of “domesticated animals” is inappropriate
4. I need case law to explicitly support the assertion that: When interpreting the law the judiciary may attempt to assess legislative intent where legislation is ambiguous. When a statute is clear and unambiguous, the courts have said, repeatedly, that the inquiry into legislative intent ends at that point. The term “domesticated animals” is plain language. While referring to a broad range of animals, its meaning is specific. Interpreting the law based on some presumed intent, in this case, is inappropriate.
That is to refute the argument “when they said domesticated animals they really meant dogs and cats”
If anyone would like to read gory details, you can find them here
PETITION:https://drive.google.com/file/d/0B8G_6r2MOVUgcHhWQ09VR29ac2M/edit?usp=sharing
ANSWER: https://drive.google.com/file/d/0B8G_6r2MOVUgMFpEcDZZaVM3ZW8/edit?usp=sharing
REBUTTAL:https://drive.google.com/file/d/0B8G_6r2MOVUgOEhwZVpuT0E1ZUk/edit?usp=sharing
JUDGEMENT: https://drive.google.com/file/d/0B8G_6r2MOVUgVWtwb2Fuam5SN2s/edit?usp=sharing re
I received a letter from the zoning enforcement officer (ZOE) that I had to remove my 7 hens because “this constituted and agricultural use” and agricultural uses are not permitted within the Village of Champlain.
I chose to request that the Zoning Board of Appeals (ZBA) offer an interpretation of the law.
The statute says that you can only have 2 things in an R1 district: Single family homes, and accessory uses or structures. The statute defines accessory as:
A use or structure on the same lot and of a nature customarily incidental and subordinate to the principal use or structure, such as garages, outbuildings, and swimming pools, energy collection devices and the keeping of domesticated animals.
I am a member of the the ZBA, so I recused myself and made my case to the remaining members. I lost 2 to 2 (a 3-member majority is required). The 2 members who voted against me, did not offer an explanation. I suspect that their motivation was that the prospect of “farm animals” in the village (someone could have a cow!) was unnerving and they ruled not based on what the language said but on what they wished it meant.
So I filed an Article 78 petition with the New York State Supreme court (this is the avenue by which one can appeal and administrative decision by a governmental body).
Unfortunately I lost my Article 78. The justification for the ruling was the according to case law (precedent) The supreme court shall defer judgement to the local body unless that body can be shown to have acted “irrationally” (that is, I needed to show irrationality rather than just poor judgement). He believed that it was “not irrational to believe that domesticated animal could be interpreted as “dogs and cats”. That is in spite of the fact that, at each level, I provided multiple cited definitions of “domesticated animals” which included chickens. While the Village’s attorney answered that my interpretation was “preposterous” he provided no cited definitions to the contrary.
I believe that my tactical error was making a logical argument rather than a legal one, providing the judge with a “safe” response.
I am considering once again di$hing out court fees to submit the next level of appeal. This is likely to require some legal coaching. Help. I’m not looking for someone to write an appeal but perhaps to help locate case law to support my position and to review the appeal that I produce.
Possible basis for appeal could include:
1. Since the ZBA did not offer any “findings of fact” then the ruling was, by definition, “arbitrary and capricious”
2. The ZBA did in fact act irrationally if all of criterion for a accessory use was met and yet ruled that this use was prohibited
3. I’m sure there is case law (I just have to find it) to support the idea that if a statute is written vaguely, that the court should interpret the statute as broadly (that is favor the homeowner) as it is the responsibility of the lawmakers to be specific. Consequently a narrow interpretation of “domesticated animals” is inappropriate
4. I need case law to explicitly support the assertion that: When interpreting the law the judiciary may attempt to assess legislative intent where legislation is ambiguous. When a statute is clear and unambiguous, the courts have said, repeatedly, that the inquiry into legislative intent ends at that point. The term “domesticated animals” is plain language. While referring to a broad range of animals, its meaning is specific. Interpreting the law based on some presumed intent, in this case, is inappropriate.
That is to refute the argument “when they said domesticated animals they really meant dogs and cats”
If anyone would like to read gory details, you can find them here
PETITION:https://drive.google.com/file/d/0B8G_6r2MOVUgcHhWQ09VR29ac2M/edit?usp=sharing
ANSWER: https://drive.google.com/file/d/0B8G_6r2MOVUgMFpEcDZZaVM3ZW8/edit?usp=sharing
REBUTTAL:https://drive.google.com/file/d/0B8G_6r2MOVUgOEhwZVpuT0E1ZUk/edit?usp=sharing
JUDGEMENT: https://drive.google.com/file/d/0B8G_6r2MOVUgVWtwb2Fuam5SN2s/edit?usp=sharing re
