Barking ordinance challenged in court

By COURTNEY LAMDIN | Staff Writer
courtney@miltonindependent.com

Milton’s dog-barking ordinance is being challenged in court 10 months after the Selectboard adopted the officer discretion-based regulation last February.

Milton Falls Court resident Michael Barrett, long the center of dog-barking complaints, is questioning the ordinance’s constitutionality through his attorney, Norman Blais, who filed a motion to dismiss a barking ticket issued to Barrett on September 10.

According to the police report from that day, Officer Christopher Grenier responded to the Milton Falls area at 5:41 p.m. and observed on-and-off barking for nearly a half-hour while he conversed with neighbors and for longer when speaking with the complainant, Ron Harding, who taped an hour of barking.

Grenier obtained sworn statements from Harding and from neighbor Justin Wolcott, who wrote that Barrett’s 17 dogs are problematic daily.

The parties appeared in the Chittenden County Superior Court – Civil Division on Thursday, Dec. 8. Judge Howard Kalfus allowed Blais 10 days to submit another memo before considering the motion. The parties exited the courtroom after about three minutes.

Blais submitted his first motion November 30 but wanted to add more after town attorney John Klesch filed an opposition memo defending the town’s ordinance, Blais said.

In the motion, Blais argued Milton’s ordinance is unconstitutional because it allows police “sole and unfettered discretion” to determine nuisance noise.

Section 3f of Milton’s Ordinance for the Care and Control of Dogs, in part, defines nuisance as a dog that “barks, whines, howls or cries, as to disturb the peace and quiet of another person(s)” and gives an officer the authority to define the nuisance.

A later section of the ordinance says no person can keep a dog that disturbs people with “frequent or long continued noise.”

Blais said section 3f is unconstitutional because citizens must be given notice of what constitutes a violation.

“In Milton, you don’t know what is a nuisance, because you don’t know what a particular police officer on a particular day in a particular mood will consider to be a violation,” he said.

Blais contrasted Milton’s ordinance to speeding enforcement: He said speed limits are posted and defined but still allow officers discretion to write a ticket. Extending his analogy, he said the dog ordinance lets officers determine the “speed limit” before choosing whether or not to ticket.

In his memo, Klesch, an attorney with Stitzel, Page and Fletcher, responded by quoting several past court cases, including a 2001 U.S. District Court decision that ruled the city of Burlington’s noise ordinance passed “constitutional muster.” He said Milton’s ordinance standards are “virtually identical” to Burlington’s.

“The fact that officers are allowed some reasonable discretion in evaluating the quality and duration of a disturbance does not render the ordinance standardless and invalid,” Klesch wrote.

The dog-barking section of Milton’s ordinance was contested before it was amended in January and became effective February 28. It previously allowed dogs to bark for up to an hour before officers could write a ticket for a violation.

An ad hoc committee recommended the Selectboard to remove time references; police Chief Brett Van Noordt said many times in public meetings that as such, the ordinance was unenforceable because officers don’t have time to listen to an hour of barking.

Fourteen tickets have been written under the new ordinance, the only three dog-barking ones being issued to Barrett. Another for Barrett’s wife, Danel, is pending, according to police records.

Police have responded to Barrett’s residence 15 times since last February for animal noise, all from complaints by Harding, Grenier said.

Barrett contested a June 6 ticket, also issued by Grenier, in court on September 1. A judge upheld the town’s ticket and fined Barrett $77.50, which includes the $25 penalty for a first barking offense and a $52.50 filing fee, according to court records.

Barrett thinks the tickets are unfounded and the ordinance is faulty.

“I just want to know what’s right and wrong, that’s all,” he said, noting that the new ordinance has him on “pins and needles.”

“You can leave your dog out for a minute, and if [officers] decide that they want to give you a ticket, they can,” he said.

Klesch and Van Noordt were both optimistic this ticket will be upheld.

“The ordinance is perfectly legitimate and valid and enforceable,” Klesch said. “We are reasonably optimistic that’s how the court will view it.”

Van Noordt said if this ticket holds up, he’ll consider the ordinance solid. He said it’s similar to model policies from the Vermont League of Cities and Towns and is enforceable.

“I don’t see anything significant that would prevent us from successfully prosecuting these tickets,” Van Noordt said.

Blais said he’ll submit his updated motion to the court this weekend. The judge will then read both sides’ arguments and rule on the motion.

If granted, the case will be over, but if denied, the judge still has to consider Barrett’s ticket and may decide to hold an evidence hearing where Grenier and possibly other witnesses would testify, Klesch said.

Barrett did not attend the short court session last Thursday. Harding and his daughter, along with neighbors Linda Shiffler and Justin Wolcott were in attendance.