Posted by: Patricia Salkin | October 27, 2019

OH Appeals Court Upholds City Code Prohibiting the Keeping of Chickens in Residential Districts

This post was authored by Matthew Loeser, Esq.

For approximately seven years, Appellant Richard G. Simpson, Sr. had kept eight hens, a chicken coop, and an enclosure on his property. After Appellant began keeping chickens in order to feed his family, the City sent violation notices to Appellant and two other individuals in the City’s residential districts that were keeping chickens. The notice instructed the parties to remove the chickens from their property on or before February 1, 2017. Appellant appealed the violation to the Planning Committee, which stayed the violation pending further consideration by City Council. In June 2017, the City Council voted to place Resolution 17-R-505 before the voters, which would authorize the keeping of chickens in residential districts in the City. Following the ballot was defeated at the polls, the other two residents voluntarily removed the chickens from their property following. In this case, Appellant appealed the granting of summary judgment in favor of Appellee, City of Columbiana, as well as the denial of his cross-motion for summary judgment, in this action by the City for declaratory judgment and for preliminary and permanent injunction to require Appellant to comply with City Ordinance Nos. 1260.05,1260.35, 1268.02, and 1270.02.

On appeal, Appellant first challenged the trial court’s decision that keeping hens, a coop, and an enclosure constituted a violation of the ordinances. Specifically, he contended that the hens were a hobby and did not constitute an “agricultural use”, or “poultry husbandry.” The court found, however, that the keeping of chickens fell within the unambiguous definition of “agriculture” in section 1260.35, as Section 618.05(d)(1)(5) of the Code defines poultry as “livestock,” which was defined as “any other animal that is raised or maintained domestically for food or fiber.” Here, Appellant conceded that he acquired the chicks as a source of protein to feed his family. Furthermore, Appellant’s argument that the term “husbandry” requires commercial sales failed because the use of the term in the Code, the definition of the Ohio Supreme Court, and its common meaning did not include a commercial element. Accordingly, the court held that the trial court did not err as a matter of law in finding that Appellant was engaged in “poultry husbandry” in a residential district, in violation of Section 1270.02.

Next, Appellant contended that “because he acquired the hens, coop, and enclosure prior to the first time that the City applied the legislative scheme against a City resident, his property was a legal non-conforming use. This claim was rejected, as the court found the application of the four ordinances in this case was not the functional equivalent of an amendment, as the keeping of chickens in a residential district was a violation of section 1270.02.

Appellant lastly argued that Section 1270.02 was arbitrary and unreasonable since his hens, coup, and enclosure were not a nuisance, he was not engaged in an agricultural use, and husbandry required a commercial element. The Code did not prohibit the keeping of chickens in the City in its entirety, but instead limited the practice to agricultural districts. Additionally, the ordinance had a substantial relation to the public health, based on concerns and objections raised by city residents and local veterinarians regarding the potential threat to the health of City residents. Based on the presumptive validity of the ordinance, and the deference accorded to the legislative enactments of municipalities, the court held that the ordinance prohibiting the keeping of chickens in residential districts was neither arbitrary nor unreasonable.

City of Columbiana v Simpson, 2019 WL 4897158 (OH App. 9/30/2019)


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