A couple who twice was denied a conditional permit to keep backyard chickens have sued the city and the Board of Adjustment claiming they were denied the right to a fair hearing and due process of the law.

Katie Gardner and Christopher Smith filed the lawsuit Feb. 23 in Madison Circuit Court. The suit also was filed against the individual members of the board in their official capacity. The named members are Chairman Paul Dean, Judy Drake, Craig Dollins, Martin Richards and George Oberst.

The couple is seeking a reversal of the board’s denial of a conditional use permit to keep six chickens at their property at 126 Adams Street, according to court documents. They also are asking Judge William Clouse, who is presiding over the case, to order the board to file a complete record of the matter, including minutes, with the court.

The city’s response to the appeal, filed by City Attorney James T. Gilbert, denied the couple was not given a fair hearing or legal due process. The response also stated the denial of the chicken-keeping permit was not arbitrary as alleged in the complaint.

No further documents or evidence from the city had been submitted to the court as of Friday, and no court date has been scheduled yet in the case.

Jan. 25 appeal hearing

Court documents show Gardner and Smith originally filled out an application for a conditional use permit to raise chickens Aug. 24. The board denied the permit in a 3-2 vote, and the couple appealed. A Board of Adjustment appeal hearing was Jan. 25.

Video of the entire hearing, in nine parts, was posted on YouTube under the Chicken Defense League account.

Gardner first testified about her plans to keep the six hens at her property. She gave the board documents detailing her coop and chicken run design plans.

She testified that her plans met the requirements of city Ordinance 18-10, which limits the amount of chickens in a residential zone to six with no roosters. The ordinance requires that the avians be “contained and confined” no less than 50 feet from residential structures other than the owner’s. No slaughtering or processing of the chickens may occur at the site.

The ordinance specifies a conditional permit application to keep chickens must be approved by the Board of Adjustments. The ordinance only requires the permission of the permitee’s neighbors if the coop or run is less than 50 feet from their homes.

The ordinance allows for the city’s Code Enforcement Department to inspect the areas where chickens are kept on a regular basis and if there is a complaint.

Code Enforcement Officer Phillip Hurt testified that he had inspected and measured Gardner and Smith’s property in relation to their coop and chicken run plans.

“What we find is what (Gardner) wants is in compliance with the ordinance,” Hurt said.

Gardner stated her family planned on taking good care of the chickens and keeping the area sanitary. Neighbors who had testified at the previous hearing said Gardner’s property was unkept and cluttered.

“Nothing in the code says if your neighbors don’t like the aesthetics of your yard, then you can’t have chickens,” Gardner said. She said she has never received a complaint from either her neighbors or the city about the upkeep of the yard.

“Simply stated, I do not believe it should be up to my neighbors whether I have a chicken coop if it conforms with the standards and requirements put into place by the pertinent ordinance,” Gardner said at the end of her testimony.

The sister of one of Gardner’s neighbors, Colette Ingram, also testified at length about her opposition to the permit. She argued that her Internet research showed keeping chickens could promote disease that could be deadly to humans, encourage rat and other vermin infestations and decrease neighbors’ property values. She also stated she and her brother had tried to be patient “with various things that have gone on there,” referring to Gardner and Smith’s property.

“Your neighbors have come again, taken their time to come up here and have given numerous reasons for not wanting chickens,” Ingram said. “Their concerns of health, welfare and safety of being homeowners should be just as much or more of a concern than just wanting chickens and eggs.”

She suggested the couple could buy organic eggs at the grocery store because when people buy property in town, they should have a right to not to live next to farm animals.

The Board of Adjustment voted after more testimonies, and once again, the conditional permit was denied 3-2.

Gardner repeatedly asked the board for a finding of fact to support their ruling. Dean denied her request, stating the board was not required to do so, and told her more than once she could take the issue to circuit court because it had been “rehashed too much.”

“How can I take it to court without a finding of fact?” Gardner asked.

At one point, Dean tried to explain the board’s decision. “The board, they felt like there was enough cause there from the other people, from the property owners, that it was denied,” Dean said. He added that although the board had issued other permits to city residents to keep chickens, their properties were larger.

Possible violation of meeting law

At a Feb. 21 Berea city council meeting, another neighbor involved in the dispute, Robert Johnson, questioned Mayor Steve Connelly about the possibility the chicken permit denial may have been unlawful. Video of the council meeting is also available on YouTube.

Connelly acknowledged he had asked the city attorney to investigate whether the Jan. 25 Board of Adjustment meeting violated state Open Meetings law.

“... the (Board of Adjustment) chairman had come to me and said he had asked the meeting not be televised contrary to our normal proceedings,” Connelly said. “In addition, he had told me that Board of Adjustments had not made findings to support their decision.”

Connelly said this raised questions over whether the meeting was open to the public if it was deliberately not recorded, and also if the lack of findings violated constitutionally required due process.

He explained that administrative hearings are usually conducted in a trial-like setting with testimony and findings of facts to base judgments upon.

“... Ultimately, the decision needs to be supported by substantial evidence if it is to be appealed,” Connelly said.

Johnson expressed anger over the possibility the denial may be overturned.

“I think I’m getting railroaded,” he said as he left the podium.

Other city council members expressed frustration over how the chicken ordinance was written.

“If the neighbors don’t have a say, then why take it to a variance board?” Jerry Little said. Several council members agreed the ordinance needed to be reviewed at the next work session. One proposal mentioned at the March 6 council meeting is that permits to keep chickens be handled strictly as an administrative process through the Code Enforcement Department.

Dale VanWinkle, city codes and planning administrator, said six conditional permits have been issued in the city for residents to keep chickens. VanWinkle said there have been no complaints about the existing chicken coops.

Sarah Hogsed can be reached at shogsed@richmondregister.com or 624-6694.

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