Rooster decision will be appealed

By Susan Vaughn - August 30, 2007

The dispute regarding noisy roosters and roaming hens in a West Tisbury neighborhood has been quieted - at least temporarily - by a ruling from the town building inspector, but the ruling will be appealed.

Building inspector Ernest Mendenhall said he notified the complainants, Bob and Kathy Harris of Millstone Lane in the Lambert's Cove area, that he could not restrict their neighbors' right to have roosters and chickens since they are allowed in the rural zoned town.

"It's something I can't enforce," he said.

Mr. Mendenhall also wrote to the bird owners, Kurt Freund and Dyan Redick, informing them they have to keep all their birds penned on their property, which abuts the Harrises.

He consulted with the planning board and the town counsel before making the rulings.

The Harrises brought their complaint to Mr. Mendenhall in July against Mr. Freund. His fiancée, Ms. Redick, owns the 14 or so chickens, roosters, and guinea hens. The complaints were about excessive noise from the roosters and the wandering guinea hens. They were first aired publicly at a July planning board meeting, when several neighbors joined the Harrises in complaining about the birds.

Because they haven't received relief from the birds as a result of the ruling, the Harrises plan to pursue an appeal with the West Tisbury board of appeals, and through a civil suit they filed in Dukes County Superior Court in June, their lawyer, John Amabile of Brockton said Tuesday.

The Harrises filed the suit as a nuisance complaint in superior court on June 21, before they submitted their complaint to Mr. Mendenhall because of time limits on filing, Mr. Amabile said. That complaint describes the Harrises' grievances, saying that the numerous chickens, hens and roosters on the 1.3-acre property had generated "unreasonable, outrageous and unlawful levels of noise by repeated obnoxious, screeching and screaming for prolonged periods."

The complaint said the noise interfered with the Harrises' comfort and enjoyment of their property, made it difficult to sleep, and had caused physical and emotional distress, including medical expenses for Mrs. Harris. It also said the situation diminished the value of their property. The suit seeks a permanent restraint of the birds, an award for damages, and a jury trial.

The court summons has not been served, Mr. Amabile said, because "our intention is to get the town to act on this." But because of the zoning ruling, the Harrises now plan to serve the court papers within the time limits, he said.

"The Harrises are going to pursue their legal remedies," he said. "We're confident we're going to prevail at some stage."

Mr. Amabile said the Harrises did not want to sue Mr. Freund. "They are interested in ending this problem - this incredible racket, which is preventing them from enjoying their property," he said.

Mr. Amabile questioned the opinion of town counsel Ronald Rappaport, which cited a 1905 case as one precedent, when Mr. Amabile said there were "no zoning laws, not autos nor airplanes....That case was completely different than what we had here."

Mr. Rappaport left the ruling up to Mr. Mendenhall, saying he should determine whether a zoning violation exists by the number of animals involved and the size of the affected lots. Mr. Rappaport also said the zoning officer should consider whether there is "substantial and unreasonable interference with the abutters' use and enjoyment of their properties." He said the zoning officials did not conduct an investigation before releasing the ruling.

Mr. Amabile said the Harrises bought their home on Millstone Lane 15 years ago when their neighborhood association's restrictive covenants against farm animals were in place. The covenants have since lapsed but he said there were never any farm animals in the residential neighborhood until Mr. Freund and Ms. Redick moved here from Maryland a year and a half ago.

The Harrises have spent a year "trying to work out some accommodation" with their neighbors as the planning board recommended, Mr. Amabile said, but Mr. Freund and Ms. Redick "have refused to meet."

Mr. Amabile said the town's zoning bylaws should be applied in this situation. The bylaws that pertain to this case, he said, include one that states: "Agricultural activities on residential parcels five acres or less shall be deemed to be a residential accessory use." He said farm animals are not exempted by that bylaw.

The other bylaw prohibits activity with excessive noise in the RU zone. "Most responsible people wouldn't consider doing what they did," Mr. Amabile said referring to Mr. Freund and Ms. Redick. "They're being incredibly inconsiderate."

The Harrises have "some level of confidence that the zoning board will reverse the decision and tell them to abate the noise," Mr. Amabile said. "If we have to take it through the court process, we will. Their goal is to have peace and quiet."

Mr. Amabile said, "It's really unfortunate" that the Harrises have to pursue the appeals, but added, "They're not going to back off."