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Appeals Court reverses backyard chicken decision

SANTA FE – A state appeals court rejected the “Chicken Little-esque” notion that “the sky will fall” if backyard hens are allowed in a subdivision just east of Santa Fe, reversing a district court ruling that the community’s covenants outlaw the poultry because they cannot be classified as pets.

That throws the yearslong fight – the Eldorado Community Improvement Association first sued the hen-keepers in 2012 and the fight burbled among residents well before then – back into the laps of community residents and their association.

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Greg Colello is shown here at a 2013 fundraiser for nine residents of Eldorado, a subdivision southeast of Santa Fe, who were sued by the homeowners association for having domestic chickens. He says some of his chickens were poisoned during the controversy. (Eddie Moore/Albuquerque Journal)

ECIA President Dag Ryen said last week that the board will meet with its attorney and decide on a course of action in the next few days. The fact that judges have disagreed on the interpretation of the law “indicates how divisive this issue can be,” he said.

“My personal aim is to move forward, get this behind us and find some consensus in the community,” Ryen said.

The ruling filed Monday and written by New Mexico Court of Appeals Judge Jonathan Sutin is based largely on a technical legal argument about whether the wording of Eldorado’s covenant about pets should be interpreted more strictly under contract law or under covenant court rulings that call for vague language to be decided in favor of free use by a property owner.

The Eldorado covenants say, “No animals, birds or poultry shall be kept or maintained on any lot, except recognized household pets.”

Sutin concluded that the Eldorado rule cannot be enforced “to preclude the owners from keeping their hens as recognized household pets.”

He noted that definitions of a pet don’t exclude the possibility that pets can also serve a use.

“For purposes here, hens kept as a source of eggs are poultry, and hens also kept as a source of companionship or pleasure can be a pet,” the ruling states.

It also notes that a veterinarian who testified in the case said that, in the past decade, an increasing number of chicken owners regard their animals as pets.

Sutin’s opinion said, “We disagree that to allow hens as household pets creates or opens up any likely circumstances of ruination as expressed by the association and the district court that warrants an interpretation that allowing the hens as pets could never have been intended at any time and under any circumstance.”

Chicken opponents have argued that allowing chickens would open the barn door for other animals, like cows or mules.

A number of options remain for the ECIA, according to Greg Colello, board secretary and an original defendant in the lawsuit. He said he no longer keeps chickens, adding that many of the ones he previously had were being poisoned by someone tossing poison or wire balls over the fence.

Colello was removed from the lawsuit after he no longer had the hens, he said, adding that his first reaction to the appeals court ruling was elation and a sense of vindication.

“My second reaction,” he said, “was to think, ‘What a waste of time and money and unnecessary community divisions.’ ” He said the controversy has already cost the ECIA $100,000.

Options at this point, according to Colello, include appealing the ruling to the New Mexico Supreme Court; conducting another vote among property owners on more specific covenant language; creating restrictive guidelines for the keeping of hens; or leaving the ruling as it currently stands.

A complicating factor, he said, is that “the current board is in flux.” Two members’ terms end May 1 and another member already resigned, leaving three seats open.

One will be filled by an avowed opponent of the chickens, the only person to have gathered the needed signatures for a seat, while the board will appoint someone for each of the remaining two seats, he said.

In a 2012 Eldorado property owners election, 55 percent favored a change in the covenants to specifically outlaw chickens, but not enough people voted to change the rules.

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