Ann Maher Oct. 26, 2015, 1:26pm


Tim Page and his wife can live in peace with their three pet chickens in the city of Sparta.

Justices at the Fifth District Appellate Court have upheld a Randolph County trial court which found Page not guilty of violating residential zoning code because raising chickens was incidental to the permitted use of his property - much like owning a dog is incidental.

The city argued that raising chickens in a residential district is not acceptable and that its governing ordinance was broad enough to cover more than just for-profit farming enterprise.

But according to a Rule 23 decision issued Oct. 22, Page did not use the chickens for commercial enterprise, and no evidence was produced at trial that he sells chickens or eggs.

"Plaintiff's zoning code does not specifically permit dogs, vegetable gardens or fruit trees for instance, in a residential district, but all of these uses are incidental to residential use and clearly are not prohibited," wrote Justice Judy Cates.

Page got tangled up with law enforcement after he called police in March 2014 to report that a stray dog had attacked one of his chickens.

When animal control responded to the dog attack call, Page was issued a citation because an officer observed three chickens walking freely about the property. Animal control claimed it had warned Page during the summer of 2013 to remove the chickens, but Page denied speaking with animal control or being warned.

He was cited for violating city code pertaining to harboring certain animals including swine, cattle, horses, mules or game birds within city limits. The citation was later amended to a zoning violation for conducting a prohibited agricultural use in a residential district.

"Prohibiting Page from possessing his pet chickens on his property would mean that any person who has agricultural products such as fruit trees and vegetable gardens would also be in violation of the zoning code," Cates wrote.

"We agree that Page's use of his property is residential, and the chickens, which are not otherwise prohibited, are an incidental permitted use of the property."

Justices Thomas Welch and Bruce Stewart concurred with Cates.

Judge Eugene Gross presided at trial.

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