By REBECCA EVERETT
@GazetteRebecca
Daily Hampshire Gazette
NORTHAMPTON — A Hampshire Superior Court judge ruled Wednesday that a Southampton woman must get rid of her chickens.
Claire Leduc of 39 Gunn Road has been fighting to keep her feathered friends since 2011, when Richard Oleksak, then the building inspector, issued two orders to Leduc, informing her that based on the town’s zoning regulations she was not allowed to keep chickens in her yard.
The Zoning Board of Appeals split on a vote to overturn Oleksak’s decision, so it was upheld, and Leduc filed suit in July 2012 to reverse the ruling.
Judge Mary-Lou Rup wrote in her decision Wednesday that the town’s building inspector and Zoning Board of Appeals had acted appropriately when they decided that Leduc was not allowed to keep chickens on her one-acre property. They did not err or act arbitrarily, Rup ruled.
“A board is generally better positioned than the court to construe intent of the bylaws,” Rup wrote. “Deference is owed to a local zoning board’s homegrown knowledge about the history and purpose of its town’s zoning bylaw.”
Leduc’s attorney, Michael Pill of Northampton, said Wednesday that it makes no sense for Rup to reaffirm the zoning board’s decision, because it disagreed with the grounds on which Oleksak based the cease-and-desist orders. Oleksak argued that because chickens were not included on a list of 14 accessory uses, they were prohibited. The board disagreed with his logic that anything not listed was prohibited, but could not agree on whether chickens should be allowed, and the four members split on that issue.
“What she affirmed is a 2-2 split decision,” Pill said. “What stands is the building inspector’s decision, which the board decided had no legal basis.”
With the increasing popularity of so-called “backyard chickens,” several other local communities have passed zoning bylaw changes in the last five years to allow a small number of chickens in residential neighborhoods. Northampton and Easthampton allow up to six, while Amherst allows up to 12.
Southampton has not passed any such zoning amendments, though when Leduc challenged the issue in 2012, the Select Board asked the Planning Board to look into possible zoning changes regarding chickens.
Planning Board Chairman Paul Diemand wrote in an email Wednesday that the board has been focusing on finalizing the town’s subdivision regulations. “We will address the poultry issue sometime soon as well as updating our entire current zoning bylaws,” he wrote.
Leduc, 69, who lives in an area zoned as a residential neighborhood, said that she has 10 hens and a rooster. At her home Wednesday night, Leduc said she was disappointed to hear about Rup’s ruling.
“I think this will end up affecting a lot of people because more and more people are looking to buy chickens for their backyards for eggs and meat,” Leduc said. “People who were going to buy chicks in the spring may not out of fear that this might happen.”
Leduc’s poultry problems started in 2011 when her neighbors, Rodney and Gail Strader, complained that a pile of chicken manure on Leduc’s property was a health hazard. Leduc complied with the Board of Health’s orders to clean up the property, but soon after, in September 2011, Oleksak issued an order to Leduc. He told her “livestock” were only allowed in areas zoned residential neighborhood if a special permit was obtained. She challenged his order, arguing that livestock are allowed in that area if the primary use of the property is still residential and if the bylaws do not expressly prohibit it.
The town’s attorney, Brian J. Winner of the Boston law office Kopelman & Paige, issued an opinion in December 2011 that while Oleksak was wrong about the special permit requirement, the chickens were not allowed in a residential neighborhood area because they are not on a list of allowed accessory uses. Among the 14 uses allowed by right or by special permit are garages and outbuildings, storing vehicles and boats, and having a home occupation, a private day care, or professional office.
The town’s zoning bylaw states “any use not listed shall be construed to be prohibited.” Bolstered by Winner’s opinion, Oleksak again ordered Leduc to get rid of her chickens, and she appealed to the Zoning Board of Appeals.
On May 23, 2012, the four board members present agreed with Pill that interpreting the bylaw as prohibiting everything other than the 14 uses was too restrictive.
“If that list is it, you can’t have a garden, you can’t have a dog, you can’t have a parakeet,” Pill said Wednesday. “And the ZBA said, ‘That’s ridiculous’ and that the uses are not limited to those on the list.”
While the board was unanimous about that point, they could not agree on whether Leduc’s chickens fit as an accessory use. The bylaws define an accessory use as “incidental to the principal residential use and customarily found in connection therewith.”
Under state law, a decision by the building inspector can be overturned if at least four members of a five-member board oppose it. Of the four members present to hear Leduc’s appeal, Michael Sacco and Ryan Geeleher voted to overturn while Nilda Cohen and Linda Hiesiger voted to uphold Oleksak’s order. That meant the building inspector’s decision was upheld, so Leduc filed suit to have it annulled.
Winner, who did not respond to a request for comment Wednesday, filed a countersuit to compel Leduc to stop keeping chickens. She has kept them while the legal case was resolved.
Sacco, who no longer is a member of the zoning board, declined comment Wednesday because he had not read the decision. The other members could not be reached.
Pill, who has 30 days to appeal the decision, said Wednesday that he had not yet discussed that option with Leduc. She declined to say Wednesday whether she would appeal.
Pill added, “There are excellent grounds for appeal.”
Rebecca Everett can be reached at [email protected].
