Abstract
Due to the multiplicity of jurisdictions under which aviculturists attempt to carry out their activities, it is simply impossible to present any detailed analysis of zoning problems without reference to the codes and regulations applicable to the particular area where the bird propagator is located. Consequently, the following observations are made in an attempt to pose some of the more common problems encountered and to suggest means of handling them. These observations are based upon several years of experience both as a city attorney trying to enforce regulations on animal keeping and as a private attorney/aviculturist attempting to work with these same difficulties from the other point of view.
A medievil jurist once remarked that "a man's house is his castle". The same concept applies to the aviculturist's aviary, however, since the Middle Ages there have developed myriad restrictions on land use which we are all called upon to observe. Even in ancient times there were restrictions on the use of premises, i.e., when Jesus is reported to have thrown the money-lenders out of the temple he was providing an early day example of enforcement of use restrictions on special purpose premises.
Few owners of property wished to have objectionable and value diminishing activities nearby and they sought to limit the use of nearby property. One method tha i was developed in the early days of real property subdividing was the placing of restrictions on the deeds which went to all purchasers. It became the custom to sell parcels of land with restrictions common to all purchasers forbidding buyers to use their land for such things as cemeteries, slaughter-houses, and livery stables; limiting dwellings placed upon the land to a certain size or architectural style; and even attempting to limit purchasers to groups of people who looked alike or held the same opinions. Obviously, the hey-day of private restrictions was leading to abuse of individual liberties in the name of property rights and the more flagrant restrictions have now been set aside by the courts.
In the last century, as populations mushroomed, commercial activities expanded, and land use became more intense, a system of governmentally imposed restrictions on land use, called zoning, was gradually created. Commonly, zoning codes provide that the raising of certain animals is limited to certain designated areas, and that animals must be enclosed in a fashion that will restrict them from bothering others. Restrictions on side yard usage and setbacks from dwellings and neighbors are fairly widespread.
The best advice one can give to the prospective purchaser of property who wishes to engage in a vi cultural activities is investigage thoroughly and proceed with caution. Zoning restrictions can be a legal minefield for the unwary. Get the aid of knowledgable and concerned professionals to guide you. A thoroughly experienced local realtor is a good starting place - and by that I mean not just some hustling salesperson, but someone who has spent a lot of time in the business and who knows local conditions extremely well. I hesitate in referring people to legal counsel for fear I will be accused of soliciting business for fellow attorneys, but the small fee you pay for competent advise before you get into a problem is usually a fraction of what you have to pay after the problem has materialized.
And above all else, BE NICE TO PEOPLE, INCLUDING YOUR NEIGHBORS AND ZONING ENFORCEMENT PEOPLE. Most of the complaints involving animals that came before me as a city attorney involved would be defendants who simply refused to abide by this common sense advice.
It has been my experience that most people in our society will put up with a lot of pettiness and callous indifference from their neighbor before they will complain. If you are keeping birds that habitually screech, scream, and rend the night air with desperate sounds of avian fratricide, don't be offended if your neighbors ask you to do something about it. An aviculturist who is not part obdurate Neanderthal will undertake to get along with people by soundproofing, buffers, or making a more suitable selection of near mute species. He won't tell his long-suffering neighbor to go stick it in his ear - for that sort of attitude just creates problems, and finally prompts complaints to the city or county fathers.