Got Chickens?

Resource Topic: 
Governance
Litigation
Covenant/Rule Enforcement
By: David A. Closson

The town board for the Town of Windsor recently directed its staff to prepare an update to the town ordinance allowing backyard chickens.  The update is intended to remove the sunset clause in the ordinance which eliminates the need for the town board to review the ordinance on an annual basis.  Other Front Range municipalities such as Fort Collins, Greeley, Loveland, Boulder, and Longmont also have ordinances addressing the ability of residents to keep chickens.  Such ordinances are attributed to an increased interest in sustainability and a growing movement in some segments of the population against mass produced foods.

Board members may be asking themselves how do these ordinances affect our association and our ability to enforce our covenants?  In some cases city ordinances may allow residents to keep chickens contradicting the association’s covenants that expressly prohibit the keeping of chickens.  So how can an association determine if a covenant prohibiting chickens is enforceable in light of the ordinances?  The short answer is that you must look to the language of the ordinance as well as the language of the association’s declaration of covenants.

Language of the Ordinance
The ordinance in Windsor for example (Ordinance No. 2010-1387/WMC 7-9-10) sets forth various conditions that must be complied with for a resident to keep chickens.  Most of these conditions are aimed at regulating items such as the number of chickens that can be kept, conditions for the treatment of the chickens, permitting requirements, requirements for the enclosure holding the chickens, and set back requirements for chicken houses with respect to neighboring properties.  However, from a homeowner association perspective the most important aspect of the Windsor ordinance provides as follows:

If the parcel upon which the keeping of chicken hens is proposed falls within the jurisdiction of a homeowner’s association or similar covenant-based property owner’s association, the requirements of this Article shall be considered minimum requirements.  Any such association shall have the right to lawfully adopt more-stringent chicken-keeping standards, including the outright prohibition of chicken-keeping, for any parcel within the regulatory authority of such association. 

Therefore this ordinance gives deference to a homeowners association’s declaration of covenants.  Given the language of the ordinance, homeowner associations in Windsor can still adopt and enforce covenants regulating and prohibiting the keeping of chickens within a community.  This is consistent with the concept that associations are generally empowered to adopt more stringent standards than those imposed by local ordinance.  However, the language of the applicable ordinance will have to be considered to ensure that the ordinance is not intended to preempt or override an association’s covenants.

Language of the Declaration of Covenants
Association’s often have language in their declaration of covenants that address the ability of homeowners to keep animals within the community.  Sometimes such covenants specifically address the issue of chickens or poultry.  Other covenants make reference to permissible “household pets” and/or a “reasonable” number of animals.  Sometimes these covenants are clear with respect to the ability of homeowners to keep chickens but in some cases the language of the covenants is ambiguous.  In the case where the covenants are unclear it may be necessary for the association to amend its covenants to properly address the issue or for the association’s Board of Directors to pass a resolution clarifying vague or ambiguous language in the covenants.

Local ordinances allowing chickens can create confusion in homeowner associations.  However, the starting point for any association facing this issue is to review the precise language of the ordinance as well as the language of the relevant covenants.