Memorandum
City of
Legal
Services
|
TO: |
Toni
Ramirez Wheeler, Director of Legal Services |
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FROM: |
Scott J.
Miller, Staff Attorney |
|
Date: |
May 5,
2008 |
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RE: |
Ordinance
8214 – The Keeping of Live Fowl and Domesticated Hedgehogs |
In the past months, citizens have contacted City staff
requesting that portions of the animal control ordinances of the City of
The Issues Regarding
Keeping Fowl
Midge
Grinstead of the Lawrence Humane Society contacted our department about her
concerns regarding the keeping of chickens and other domestic fowl within the
City of
To
substantiate her concerns, Grinstead included a letter from Gail R. Hansen, the
State epidemiologist and public health veterinarian from the Kansas Department
of Health and Environment. The letter,
which is included as an attachment to the memorandum, primarily focuses on the
fact that chickens and other poultry often carry zoonotic pathogens such as
enteric bacteria. Zoonotic diseases are
those that transmit from animals to humans.
Although other animals such as cats and dogs carry these pathogens, they
exist more commonly in domestic fowl.
The letter suggests this is because the birds usually do not have
separate places to eat and rest away from where they pass waste products. Hansen cites a monograph from the Center for Disease
Control that discusses the special concerns created by chickens in cities,
specifically salmonellosis, when the animals are kept as backyard pets. It is Hansen’s opinion that allowing chickens
in the urban environment is contrary to the public health.
Current Law
Animal Control Law
Whether it
is currently illegal to keep domestic fowl within the City is somewhat cloudy. There are two potential sources of authority
regarding this issue in the City Code – animal control ordinances and the
development code. Our current ordinances
pertaining to the keeping of animals within the City of
Persons legally owning domestic fowl seventy-five (75) feet
away from any dwelling other than that of the owner or tenant thereof pursuant
to Section 3-105 of the 1990 Code prior to December 30, 1992, shall be allowed
to continue such use, provided ownership remains with the same person on the
same property. Provided, the City Commission may suspend enforcement of
this subsection, or establish reasonable conditions for the enforcement
thereof, for property annexed into the City after December 30, 1992.
If this
was indeed the legislative intent, however, it was imperfectly executed. Section 3-104(A)(6) excludes birds from the
prohibitions against keeping animals within the City. So, while the ordinance contains an exception
from any domestic fowl ban for people legally keeping the fowl within the City
prior to December 30, 1992 provided the fowl are kept on the same property and
the property ownership remains the same, there is no clear ban on the keeping
of fowl, or any other bird, within the animal control portion of the City
Code. In other words, the exception is
an exception to a rule that does not exist.
Even if the keeping of fowl is disallowed under the Development Code,
not having prohibitory language in the animal control portion of the ordinance
limits the ability of animal control officers to enforce any such ban. According to Section 3-205 of the City Code,
Animal control officers may only issue citations for violations of Chapter
III. Therefore, they are unable to
enforce a ban on the possession of domestic fowl under the Development Code.
Development Code
The
Development Code is Chapter XX of the City Code. It is clear under the Development Code that
the keeping of livestock is an allowed use in some base zoning districts. For example, animal husbandry is permitted in
the RS40 zoning district, subject to the standards in Section 20-502. Under the Section 20-502 standards, livestock,
with the exception of swine, can be kept provided the lot size is at least five
acres and the animals are kept more than 100 feet from any adjoining lot line
and 150 feet from any R district (presumably not including the RS40 designation
of the lot the livestock are kept on).
There is a limit to one head of livestock per acre of lot size, so five
chickens could be kept on a five acre lot.
Please note that not all RS40 lots meet these requirements. The minimum lot size for RS40 is 40,000
square feet. This is a little less than
one acre.
Livestock,
except for swine, is also allowed in the Urban Reserve district. Such a district is:
. . . a Special Purpose Base
District primarily intended to provide a
suitable classification for newly annexed land. The District is intended to avoid premature or
inappropriate development that is not well served by Infrastructure or
community services. It is also intended
for implementation in areas where an adopted neighborhood plan or area
development plan is not in place. It permits
only very low-intensity development until such time that a land use plan and
Infrastructure and community services are in place.
Any lawful
use of the property at the time it is annexed may be continued, including the
keeping of livestock. Section 20-222(b)(2)
does provide, however, that no increase in the number of livestock is permitted
after annexation.
Finally,
animal services such as veterinary services, grooming and kenneling are allowed
in certain commercial zoning districts.
Reading
all of these sections together, it can be argued that it is currently illegal
under our zoning ordinances to keep domestic fowl on the vast majority of the
lots in the City. Because the zoning
ordinances are not enforceable by animal control, however, any such complaint
would have to be investigated and enforcement activities initiated by a party
authorized to do zoning enforcement.
Based upon
our conversation, I do not believe that Ms. Grinstead has any objection to the
keeping of chickens on or in the areas allowed under our current zoning code
due to the size and relative density of the lots in question.
Proposed Ordinance
The
enclosed draft ordinance amends our regulations regarding the keeping of
animals to make the Chapter III prohibitions regarding fowl similar in scope to
those in the Development Code. This will
serve as a clear statement that residents are not generally allowed to keep
domestic fowl in the City, and will be enforceable by animal control
officers. This attempt to mitigate the
health concerns cited by Gail Hansen is within the City’s police power.
The
amended ordinance covers fowl, which for the purposes of the ordinance is
defined as:
[A]ny live member of the category of birds typically kept
for the production of eggs, meat or feathers, whether or not that individual
member is itself actually kept for the production of eggs, meat or
feathers. This definition shall
explicitly include all chickens, ducks, geese, turkeys, peacocks, ostriches and
emus.
Pursuant
to the ordinance, fowl is only allowed to be kept in zoning districts where the
keeping of livestock is an explicitly allowed use under the Development
Code. All other exceptions, except for
those that apply to all types of animals, are eliminated.
It would
also be possible to amend the ordinance to prohibit fowl from the entire City,
although in that case the Development Code should probably be amended as well.
Hedgehogs as Pets
We have
also received a citizen request to consider amending the animal control
ordinance to allow domesticated hedgehogs as pets within the City. These hedgehogs would be kept in a manner
similar to the smaller rodents that are allowed under our current
ordinance. They are not legal under the
current ordinance, however, because they are not classified as rodents, being
from a separate family of mammals.
Domestic hedgehogs survive poorly in temperatures below 70 degrees,
which makes the risk of propagation in the wild after either an accidental of
purposeful release somewhat remote.
Midge Grinstead was consulted regarding this issue and stated that her
only substantial concern is that if hedgehogs were to be released and reproduce
their population could compete with and perhaps threaten populations of some
indigenous small mammals.
The
ordinance, as drafted, would allow the keeping of hedgehogs. This provision could also be deleted if the
Governing Body feels that the existing prohibition is better public
policy. I would ask for its direction on
both the hedgehog and fowl issues. If I
can be of any other assistance in this matter, please feel free to let me know.