Cock crows in Lambert's Cove

And, what will town officials do about it?

By Susan Vaughn - July 19, 2007

If fences make good neighbors, how do neighbors fence in noise from roosters or hide chickens behind chicken wire or prevent guinea hens from roaming?

This is the question West Tisbury health, zoning, and planning officials face as the result of a formal complaint filed by angry neighbors against neighbors with noisy and roaming birds in a Lambert's Cove residential development. The issue came to a head Monday night when representatives from both sides of the issue brought their arguments to the planning board. The meeting was not scheduled as a public hearing, but the complainants and their lawyer, and several residents of the neighborhood including the bird owners, attended and were invited to air their opinions.

"There is no obstruction to the sound or visual to the pen," the principal complainant, Bob Harris of 7 Millstone Lane, said Monday night referring to the coop where the birds are housed part of the time. Mr. Harris also complained that the guinea hens roam freely on his and other neighbors' properties. "This is uncontrollable," he said.

Mr. Harris and his wife, Kathy Harris, brought the formal complaints against their adjoining neighbors, Kurt Freund and Dyan Redick of 31 Millstone Lane in a letter dated July 3 that was sent to town zoning inspector Ernest Mendenhall and health agent John Powers.

Ms. Redick said she currently has 14 chickens, three guinea hens and three roosters, including one blue ribbon winner at last year's agricultural fair. She said she has fewer birds now than a year ago when she and Mr. Freund moved to the Vineyard from Maryland.

The Harrises claimed in the letter that the birds have been creating "a daily, persistent, excessive, unacceptable and obnoxious noise disturbance and nuisance" at the boundaries of their property, on their property and in the neighborhood. Mr. Harris said he has more than 25 hours of tape recordings chronicling the birds' noises, which he claimed are loud enough to be heard "hundreds of times at various times per day," from as early as 1:30 am to sundown.

The Harrises described the noises as "screaming and shrieking repeatedly and loudly." They also hired a sound engineer from Sudbury, who they said documented the noise levels as exceeding the decibel levels allowed under the state noise regulations.

The Harrises, who have been seasonal residents since 1992, said the situation constitutes a serious violation of their property rights and of provisions in the town zoning by-laws regarding accessory uses as well as the state Department of Environmental Protection noise regulations. The town zoning laws are enforceable by the zoning officer and the state regulations are under the jurisdiction of the town health department.

Mr. Mendenhall and Mr. Powers attended the meeting to seek the planning board's guidance on enforcement and clarification of the laws. "How do we define noise and does the board feel this type of noise is a nuisance?" Mr. Mendenhall asked.

The bird noises have been a problem since late June 2006, when Mr. Freund brought domestic poultry onto his property, according to the Harrises. Although Mr. Harris acknowledged that the neighborhood off Longview Road is zoned R-U, and allows agricultural uses, he said there is no farming in the neighborhood. Mr. Freund's animals are treated as pets, he said.

"We enjoy West Tisbury and its mixed uses," Mr. Harris told the board, but added, "You're allowing agriculture in every area." He said the birds were not an appropriate accessory use in a residential subdivision. The original covenants on the development had restrictions on agriculture as an accessory use, but they expired in 2001 and have not been renewed. Mr. Harris said he mentioned the covenant only for historical reference.

John Amabile, the Harrises' attorney from Brockton, further explained that the original covenants on the 25-year-old housing development of one-acre lots prohibited non-domesticated animals. The zoning bylaws still state: "Agricultural activities on residential parcels five acres or less shall be deemed to be a residential accessory use."

"West Tisbury has designated areas where one can enjoy peace and quiet," Mr. Amabile said. "This is a serious issue. This has completely destroyed the neighbors' ability to enjoy their property," saying that the Harrises are not the only ones affected by the birds.

"We're talking about roosters screaming and screeching 300 to 400 times a day," he said. Other neighbors who live some distance away from Mr. Freund's property hear the roosters day and night also, he said, "and are outraged at the inability to use their property."

Mr. Amabile said Mr. Freund's neighbors don't argue that reasonable use of animals is allowed, but they all oppose a "backyard flock." One neighbor, James Nelson of Longview Road, asked the board outright what would happen if he shot one of the guinea hens. Board chairman David Douglas said he didn't know.

The Harrises' sound engineer, Mr. Amabile said, documented a dozen instances of noise in a one-day study that was "multiples above" what's allowed by the state's environmental laws. He compared the noise to ambulance and fire sirens and living next to Logan Airport. "In terms of decibels, it's equivalent," he said.

"There is overwhelming evidence that the town's zoning bylaws have been violated," Mr. Amabile said. One bylaw he referred to as applicable lists "Prohibited Uses in All Districts," defines those uses in part as: "Any building or structure or any use of any building, structure or premises which is injurious, obnoxious or dangerous or a nuisance to the community or to the neighborhood through noise vibration...."

"This is an outrageous situation that has caused Mrs. Harris serious health problems," Mr. Amabile said. He also said the situation has diminished the value of the houses in the neighborhood.

Dena Ferry of Longview Road said she had received complaints about the noise from tenants who rent her house part of the year. "The roosters drove them crazy," she said, adding that the situation has affected her ability to rent and advertise the neighborhood as quiet and peaceful.

Two other bylaws the Harrises cited in their letter pertain to non-residential uses in RU districts. One states: "There shall be no evidence of non-residential use through persistent or excessive sound, vibration or odor at the boundaries of the premises." The other states the uses "shall not create hazards, unacceptable disturbances, unacceptable injury to the neighborhood or unsightliness visible from any public way or neighboring property."

The Harrises' letter also referred to a violation of the animal control bylaws, but assistant animal control officer Alan Healy said Tuesday the town has no restrictions on chickens or other livestock except that they must be kept in the owner's yard.

Mr. Amabile said the Harrises have tried to resolve the issue in a neighborly way, but added, "The violators thumbed their nose at them and they were left with no choice" but to file a formal complaint. Mr. Harris said he had attempted to speak to their neighbors four times over the past year.

When they got their turn to speak Mr. Freund and Ms. Redick countered many of the Harrises' complaints, and defended their right to have the birds. They said they spent two years planning to move here and three-quarters of a million dollars. They said they checked with their real estate agent and town officials about the legality of the birds, and were told they would not be an issue.

Ms. Redick claimed that Mr. Harris complained about the roosters crowing immediately after they moved in and he told them they never should have been sold the property because of the chickens.

"It's an unfortunate issue," Ms. Redick said, admitting that the roosters even get on her nerves at times. "I don't dispute the animals make noise. I dispute the sound readings," she said.

Ms. Redick said the sound engineer came on a day when her yard was being treated for ticks, so the birds were penned up most of the day. She said the engineer took the readings just after she let the birds out in the afternoon.

Ms. Redick said the situation changes daily. "That's the nature of having birds." She took offense at charges that she and Mr. Freund have done nothing to change the situation.

She said she has taken the worst noise offenders, two baby roosters, into an insulated case in her basement. Ms. Redick said she told the Harrises she would get rid of the roosters, but does not believe that will end the complaints about the guinea hens. When she said this, several neighbors in the audience indicated they would be happy with that solution.

Ms. Redick also complained about Mr. Harris approaching her husband in their driveway. "I don't appreciate being treated this way. We are reasonable people," she said. "We are highly offended and feel we're being harassed on our own property."

Mr. Harris said he felt his actions were neighbor-to-neighbor gestures.

"We sincerely, deeply regret this is causing a problem, Mr. Freund said. "We want to be in compliance of whatever regulations exist." He asked the planning board for clarification of the town regulations.

He said he and Ms. Redick have added interior walls to the chicken coop, put the insulated case in the house, and adjusted their schedules to alleviate the complaints. They also are willing to move the chicken coop farther from the Harrises' property, but he said Mr. Harris would like them to keep the chickens in the coop all the time. "We felt this was unreasonable," he said.

"We're trying to make adjustments and trying to be good neighbors," Mr. Freund said, adding that he would like the situation to be resolved soon. "I can't afford another summer of dealing with this."

The planning board members had mixed responses to the situation. Chairman David Douglas said, "A lot of people would have said it's okay," but the covenant restrictions elapsing causes a problem.

Board member Susan Silva asked if the chickens were fenced in or allowed to roam. Mr. Freund said they understood they could roam, although he said they primarily stay on his property.

"There are a lot of angry people here on both sides," Ms. Silva commented, and addressing Mr. Freund and Ms. Redick directly, said, "Fences make good neighbors."

Member Mark Yale said he felt the main issue was the roosters, and Mr. Douglas suggested the couple get rid of the roosters.

"Do I have to get rid of the rooster I've had for eight years that a friend gave me when my son died?" Ms. Redick asked. No one answered.

Associate board member Eric Hammerlin said that although he personally likes roosters and hens, he said the issue facing the board is to determine what excessive noise is. "The state and local regulations are probably relevant," he said. "They probably are violating the Massachusetts code."

However, board member Virginia Jones said the planning board does not enforce the bylaws. Although she said agricultural uses are permitted in West Tisbury, she summarized the board's suggestions for the bird owners: fence the birds, don't allow them to roam, screen the property, and reduce the number of roosters. She also suggested that all the neighbors "sit down together."

Mr. Yale said the board's next step should be to confer with other town officials to determine if there is a consensus on the issue. "Are we prepared to enact bylaw changes?" he asked.

Although Mr. Mendenhall said the local bylaws do not define what constitutes excessive noise, Mr. Amabile insisted the state definition does define it. "The evidence is amply proved and sufficient," he said.

Mr. Powers, the health agent, said he asked a DEP official about any noise cases involving animals and was advised that the state would not spend money enforcing such a case.

The state DEP regulation for noise does not mention animal noise as either offending or an exception to the rules. The regulation lists restrictions only on industrial, commercial, and other man-made sounds. The rules also do not apply to public gatherings, such as parades or sporting events, emergency vehicles and activities anytime, and domestic equipment, such as lawn mowers or power saws, between 7 am and 9 pm.

The planning board did not resolve the issue Monday night, but agreed to discuss it later. Mr. Douglas concluded for the group, "It would be nice if people solved this themselves, but they probably won't. We're going to have to come up with something."