Memorandum

City of Lawrence

Legal Services

TO:	Toni Ramirez Wheeler, Director of Legal Services
FROM:	Scott J. Miller, Staff Attorney
Date:	May 5, 2008
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 Lawrence be amended to prohibit the keeping of fowl within the City of Lawrence, and to allow the keeping of domesticated breeds of hedgehogs as pets.  Each of these issues will be discussed below.

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 Lawrence.  Grinstead stated that she has received information that chickens are kept within the City, which she disfavors because of the health concerns created by the keeping of domestic fowl in an urban environment.

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 Lawrence comprise Chapter III of the City Code.  Looking at Chapter III’s provisions, it appears that prior legislative intent may have been to phase out or eliminate the keeping of domestic fowl within the City.  A portion of Section 3-104 of the City Code states:

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.