Eldorado welcomes back hens

Two Rhode Island red hens wander around a yard of an Eldorado home in 2011. After thousands of dollars spent in a lengthy legal battle, the New Mexico Court of Appeals reversed a judge’s decision to prohibit Eldorado residents from owning chickens. Clyde Mueller/New Mexican file photo

In a decision likely to ruffle feathers, the New Mexico Court of Appeals reversed a district judge’s 2014 order prohibiting Eldorado residents from raising hens in their backyards.

The 18-page ruling issued Monday is just the latest development in a yearslong legal battle undertaken by the subdivision’s homeowners association to enforce a covenant its lawyers and some residents argue prohibits keeping live poultry on residential property in the community southeast of Santa Fe.

The association filed suit in December 2012 after some residents complained that neighbors who keep chickens in their backyards violate subdivision covenants prohibiting animals, birds or poultry except for “recognized household pets.”

The covenants say such animals may only be kept in “reasonable numbers” as pets and not for any commercial use or purpose. But the covenants do not define which animals may be considered “recognized household pets” and the term’s meaning remains a point of disagreement among residents of Eldorado, a community of 2,650 well-spaced homes.

The appeals court declined to interpret ambiguities in the subdivision’s rules.

The association can ask the state Supreme Court to review the issue. But the case has proven costly, with both sides spending tens of thousands of dollars to litigate the matter.

The president of the association’s board, Dag Ryen, was out of town Wednesday. When reached for comment, he said he had not yet read the decision.

In a summary judgment nearly two years ago, District Judge Mark A. Macaron said the covenants are ambiguous but he decided chickens are not “recognized household pets” and ordered residents to remove their poultry by September 2014.

A three-judge panel sided with the poultry owners who appealed Macaron’s ruling, but the appellate judges did not decide the question of whether chickens are pets akin to dogs and cats.

Instead, writing for a unanimous panel, Judge Jonathan B. Sutin, cited a New Mexico Supreme Court ruling in a 1996 case that set a precedent for interpreting ambiguous covenants “in favor of the free enjoyment of the property and against restrictions.”

Sutin suggested members of the homeowners association could vote to amend their covenants if it is their intention to prohibit chickens.

But under the circumstances, he wrote, the covenant cannot be enforced to preclude homeowners from keeping their hens as recognized household pets.

While members of the homeowners association voted on the matter in 2012, a minority of members participated in that vote, turning it into what poultry owners involved in the appeal described as an “ad hoc inconclusive opinion poll.”

The court rejected arguments by the Eldorado Community Improvement Association that allowing residents to own chickens will pave the way to property owners raising all manner of animals in the subdivision.

“Such a Chicken Little-esque view of possible results and calamity is not convincing,” Sutin wrote.

The court also took a different view of an affidavit submitted by the homeowners association from a diagnostic veterinarian at Colorado State University who is an expert in commercial poultry populations as well as backyard flocks. She argued that chickens have not historically been considered a household pet, with the “phenomenon” of backyard hobby farmers keeping chickens only arising in the past decade or so.

Sutin wrote that her affidavit “confirmed that a substantial percentage of chicken owners keep chickens as pets.”

He later added, “The notions expressed in the covenants of maintaining the ‘pastoral’ and ‘rural’ nature of the area and the historical traditions of the region would appear to lend themselves to allowing animals, birds and poultry as recognized pets.”

Andrew Oxford can be contacted 505-986-3093 or aoxford@sfnewmexican.com. Follow him on Twitter at @andrewboxford.

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