Case on chickens, ducks migrates to council after loss with zoning board

Three ducks and two chickens must be removed from a Cambridgeport home, at least for now, the Zoning Board of Appeal decided Thursday. (Photo: savetheducks.org)

A Cambridgeport co-op with two pet chickens and three pet ducks lost its case Thursday before the Board of Zoning Appeal, which voted 4-1 on narrow legal guidelines that keeping fowl was not a “customarily incidental” use in the city.

The decision means the fowl will have to go, for now.

It upheld an Office of Inspectional Services charge against the 225 Putnam Ave. household that has also resulted in a criminal case. The matter was tabled at its first court date, Wednesday, to see which way the board voted, said Blake Brasher, who is representing the co-op.  The case will be picked up March 16 if the household doesn’t appeal the decision within city government by then.

But an appeal of sorts is already in the works. City councillor Henrietta Davis is already seeking information on what barriers prevent residents from keeping fowl.

“It’s not over yet,” Constantine Alexander, chairman of the board, told Brasher and his supporters. “Your relief is with the City Council. This decision can be reversed just by the council making a decision.”

He also pointed out that councillor Craig Kelley was at the back of the packed, sweltering hearing room at the Central Square Senior Center, where testimony and board debate had gone on for well over two hours. Immediately after the hearing, as the board urged people to leave and make room for other zoning issues to be heard, Kelley entertained a throng who wanted to speak to him on the matter.

All seemed to be in support of keeping fowl within the city. One identified herself as a Harvard law student who found the board’s decision to be “a classic case of the misinterpretation of a statute.” Kelley passed out a thick stack of business cards.

Pet issue “a red herring”

Alexander stressed that the motion he drafted for the board was “as narrow as possible,” hinging solely on whether keeping fowl in the city — something not allowed by law since 1943 unless grandfathered in by the constant presence of the birds — was a  “customarily incidental accessory use of a property.” Keeping a dog or cat could be considered so, but keeping chickens, ducks or geese was not.

Many at the meeting raised their hand to show they either kept fowl or knew someone who did, but the informal count didn’t change the board’s perception of the issue.

By its nature the decision also ignored neighbors’ complaints about noise, odor or whether fowl attract rats, all issues Brasher and his housemates tried to address either before the board, in printed packets available during the meeting or on a Web site created for the conflict called savetheducks.org. And it was crafted to avoid the question of whether the fowl were pets.

(Brasher said they were. After parrying for a moment with board member Brendan Sullivan, who asked whether the birds were pets and what the household would do when they were “done being pets,” Brasher finally said they would “bury them in a shallow grave and put up a marker … We’re not going to eat our ducks or chickens, if that’s what you’re asking.”)

Member Tad Heuer said that was vital, though, and he neither accepted the phrasing of Alexander’s motion nor voted for it.

The decision was troubling to many, leaving some puzzling over language that seemed to reject keeping fowl because they weren’t common enough but simultaneously demand they be “customarily incidental,” meaning not common.

Board chairman Constantine Alexander listens to Blake Brasher, one of owners of the pet fowl, during a hearing Thursday. (Photo: Marc Levy)

“I was actually very optimistic, and I’m very surprised the board of Zoning Appeal chose to find that the keeping of hens is not a customarily incidental use of a property,” Brasher said after the meeting. “They’ve essentially said to the people of Cambridge that you may not do something that is exotic, that nobody else does in Cambridge, because that is not allowed by the zoning code. I just think that is against what most people think of as the spirit of Cambridge.”

There were also questions asked and points raised during lengthy testimony, pro and con, that chipped away at the rationale of the decision and kept audience members talking afterward: Was the intent of zoning to outlaw what a few people do? What about fowl seen along the Charles River? And, as recent council candidate Minka vanBeuzekom reported via the Twitter account she used throughout the meeting, “Chicken owner speaks: Pets are customary in Cambridge. Chickens are pets! Why the distinction?”

“Whether they’re pets is a red herring,” Alexander said.

But the issue kept rising. When board members pointed to the lack of city law on how many fowl could be kept as evidence they weren’t customary, Heuer had a rejoinder: He noted that the number of pets allowed was something Inspectional Services dealt with frequently, often on how many cats are allowed in a small space.

Even Kelley was heard after the meeting trying to parse the difference between complaints about odor and noise from neighbors of the fowl at the Putnam Avenue co-op and the complaints of any neighbor about noise or odor from any pet — a barking dog, for instance.

Temporary home may be needed

Until the council can address such questions and decide the issue, the co-op has to figure out what to do with Frances, Penelope, Potassium, Henrietta and Ferdinand. “We can choose to keep them while appealing the appeal with the district (or perhaps applying for a variance), so long as we have some response in the system before the March 16 court date. It’s the courts who will pressure us to remove the birds, either by imposing fines on us if it remains in the lower court, or through more severe means if it moves to the higher courts (unlikely unless we are found to be in contempt of court, e.g. because we fail to show up for our court dates or refuse to pay fines),” Brasher said in an e-mail Friday.

“In any case, finding a temporary home for the birds may be the best way to get ourselves to a position where our neighbors will actually listen to us.  We all need some time to regroup and strategize,” he said.

Many supporters of keeping fowl said they expected the board’s rejection because they knew there was no law on fowl in Cambridge. And by the time Heuer spoke, it was clear which way the board’s majority was leaning.

But the heat, extraordinary length of the meeting and inability to win allies to his point of view didn’t keep Heuer from pointing out something positive.

“This is one reason I like living in Cambridge,” he said. “To see people coming out and respectfully discussing an issue.”

An earlier version of this story incorrectly identified the section of Cambridge housing the co-op.

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