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Raising backyard chickens, legally

It seems like everybody is raising chickens these days. An attorney in my firm brings in a few dozen eggs each week that are divvied up among others at the firm and a mysterious guy named Steve who picks up his eggs each week.

I get my eggs from a friend in the Attorney General’s Office whose chickens lay up a storm, and like many who get their eggs from amateur egg purveyors, I appreciate the heterogeneity of the eggs — some are light blue, some are big, some are small, etc. I like the price of mine (free), but even if you pay for your neighbor’s or colleague’s eggs, you probably like the freshness and keeping your money in the local economy.

If you are considering keeping chickens in your backyard, you should first read your town’s zoning ordinance and other land use regulations. Unless you live in Concord or Manchester, you probably won’t get a clear answer, as most zoning ordinances do not specifically mention chickens. If chickens are not mentioned, check for where agriculture is permitted. If you live in a zoning district in which agriculture is permitted, you might be able to have chickens. If you don’t live in a district that permits agriculture, you may be out of luck. But, read your ordinance’s definition of “agriculture” carefully because there may be a loophole.

For example, consider that the Dublin zoning ordinance includes two districts in which agriculture is not allowed. The Dublin ordinance defines “agriculture” as follows:

The use of land for farming, dairying, pasturage, agriculture, horticulture, floriculture, animal and poultry husbandry and the necessary accessory uses . . . .  This does not include the keeping of customary household pets and animals.

So, if you can’t do “poultry husbandry” where agriculture is not allowed, does raising chickens in the backyard count as “the keeping of customary household pets and animals?” If this provision were meant to only apply to dogs and cats, the word “animals” would not need to be added to “pets.” There is a legal canon of statutory interpretation that says that statutes must not be interpreted in such a way that would render some words superfluous.

Applying that canon to the Dublin ordinance raises the question of whether chickens are “customary household animals.” Prior to the relatively recent advent of industrial chicken farms, backyard flocks of chickens were quite common (read: customary). Further indication that chickens may be customary household animals is a New Hampshire law originally enacted in the mid-19th century that includes a list of basic occupational and household items that may not be taken from you to pay off your debts. Listed along with items such as comfortable beds, a bible, a cook stove, and a sewing machine are “domestic fowl not exceeding $300 in value.” It would appear, then, that chickens are customary household animals and that the keeping of them would not constitute “agriculture” in Dublin. If this is true, and if keeping chickens does not constitute “poultry husbandry,” then, barring other provisions of the ordinance, the keeping of chickens might be permitted in any district in Dublin.

No matter where you live, make sure you understand the law before you get chickens. You can call the town for clarification if you need it. If chickens are permitted where you live, make sure you comply with the entire zoning ordinance, including any requirements about fences, restrictions on commercial sale of eggs, and manure disposal. If you build a coop, make sure you comply with setback requirements from lot lines and water bodies and other outbuilding restrictions so that you don’t have to move the coop later on. Also be aware that some ordinances allow only hens. Even if an ordinance does not expressly prohibit roosters, the ordinance probably prohibits noise or conditions that interfere with your neighbors’ enjoyment of their property. You don’t want a lawsuit over your chickens. It is better to share eggs with your neighbors than it is to trade legal documents with them.

Jason Reimers is an attorney for BCM Environmental & Land Law. This article is not legal advice.

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