Tisbury town counsel says Rupert the rooster has law on his side
Martha's Vineyard Times File Video
Rupert, a renegade rooster in Vineyard Haven, may continue to rule the roost on properties where his sympathizers live, according to Tisbury town counsel David J. Doneski.
But, if he runs wanders onto properties of homeowners who do not want him, he is fair game for capture by Tisbury animal control officer (ACO) Laurie Clements, at their request.
Mr. Doneski, an attorney with the law firm of Kopelman and Paige in Boston, provided legal advice on the rooster, at the Tisbury selectmen's request, to town administrator John Bugbee in a phone conversation on June 2.
Rupert's robust late night and early morning cock-a-doodle-doos (see sidebar, "Why do roosters crow?") have resulted in loss of sleep and rental income for three years, according to some residents on Leonard Circle and the nearby Bernard Circle. He apparently flew the coop when his former owner moved his brood to another Island location three years ago.
Pro-Rupert neighbors who allow him refuge have clashed with anti-Rupert neighbors, who have asked town officials to capture and remove the free-range bird.
"The legal limbo is whether or not the town has the right to go onto private property for the purpose of capturing the rooster," Mr. Bugbee told The Times in a recent phone conversation. "Mr. Doneski said the answer is no, you cannot. You can't go on private property to take the rooster for any reason, other than extenuating circumstances, such as if the property or health of a person is at risk."
Mr. Bugbee said he and Mr. Doneski agreed that has not been the case, up to this point.
"To me, above all else, and according to counsel, it's a matter of property rights," Mr. Bugbee said. "Unless the animal control officer can determine someone has gone above and beyond feeding the rooster, to a point that would constitute owning it, such as giving it shelter or some other provision. Feeding, alone, does not constitute ownership, according to town counsel."
A Tisbury bylaw requires that property owners who want to keep fowl need a special permit from the ZBA. However, no one around the Leonard Circle neighborhood has claimed ownership or responsibility for the rooster everyone calls by name and several openly feed.
Mr. Bugbee said if the town were able to determine that someone has taken ownership of the rooster, it would provide grounds for enforcing zoning regulations.
"However, this has not taken place at this point and all we have is the ability to go onto people's property who don't like the rooster and would allow us to do so, and not certain properties where people who like the rooster don't give us permission," Mr. Bugbee said.
Group rejects Rupert relocation plan
This week, Ms. Clements said that if someone who wants the rooster removed could lure him onto his or her property, she would do her best to catch him.
In the meantime, she is frustrated that several pro-rooster homeowners, whom she declined to name, remain firm in their determination to harbor the rooster and reject what could be the perfect compromise for the neighborhood.
"I spoke with the three homeowners that like the rooster and let them know someone has stepped forward that is willing to catch the rooster at night and let him come and live at his farm cage-free," Ms. Clements said. "However, all three parties I spoke to do not seem amenable to that at all."
The argument that, if he moved, the lonely Rupert would have hens around did not sway them, either.
"I also explained to them what might not be a happy ending for Rupert, if someone else decides to catch him, and they hemmed and hawed," Ms. Clements said. "So until he decides to leave their properties, I guess he stays put."
One Leonard Circle homeowner, Angela "Piper" Murphy, has posted a no-trespassing sign in her yard, where Rupert often roosts. She did not respond to several phone messages left by The Times seeking a comment.
Ms. Clements said she drives through the neighborhood periodically and has only seen Rupert once and heard him once since early June. She continues to receive complaints about him, however.
"I try to be sympathetic with the callers, to let them know I will do what I can, within the legal limits, without trespassing on someone's property," Ms. Clements said.
How rooster ruckus hatched
Rupert flapped into the limelight last January, when some neighbors complained to The Times that his incessant crowing, not only at dawn but throughout the day and night, disrupted their sleep and drove away renters (Jan. 5, 2011, "Rupert splits ears and a Martha's Vineyard neighborhood").
At that time, Ms. Clements said she had received about a dozen complaints over the past three years and had tried four or five times to catch Rupert, without success.
Mr. Bugbee told The Times he had few municipal tools to resolve the problem and that Ms. Clements had other priorities. He also said in January that he had called Mr. Doneski's office for an opinion on legal options and that "they're working on it."
The Rupert ruckus flared up at a public hearing on May 12 by the Tisbury zoning board of appeals (ZBA). The subject of the hearing was a request by Leonard Circle resident Josh Aronie to transfer four chickens onto his property. However, the discussion turned to Rupert, and several people called for the rooster's capture and removal.
In response, the ZBA wrote a letter dated May 16 to the Tisbury selectmen and asked them to help resolve the neighborhood dispute over Rupert.
At the selectmen's meeting a day later, several people from the Leonard Circle neighborhood attended to express support for allowing Rupert to continue to roam freely (May 18, 2011, "Rupert, a controversial rooster, frustrates a Tisbury neighborhood").
In discussing the town's options, the selectmen differed on whether Ms. Clements or someone they delegated could legally go onto private property without permission to capture Rupert. That led to Mr. Doneski's expert legal opinion being sought.
The subject of Rupert came up again at the selectmen's meeting on May 31. Leonard Circle resident Betsy Shands wrote a letter that asked the town's chief executives to put Rupert on a future agenda for discussion by all of the neighbors.
Selectman chairman Geoghan Coogan said the issues were discussed at length at the previous meeting and that the selectmen were waiting for legal advice from town counsel (June 1, 2011, "Tisbury selectmen solve short-term parking, not long-term rooster").