Disheartening ruling from Henrico Board denies Susan Mills' zoning appeal

This afternoon we are deeply disheartened by the ruling of the Henrico County Board of Zoning Appeals, which upheld the Director of Planning’s notice of violation issued to Susan Mills on July 7. That notice, as you may recall from prior posts, cited Susan for a zoning violation, indicating that caring for feral cats in a residential (R-4) zone is not a permitted use.

We have firmly believed and argued this morning that feeding and caring for feral cats like feeding and caring for any other companion animal is a permitted use because it is “customarily incidental” to a residence and therefore must be regarded as an accessory use. The County’s own attorney was asked to define customarily incidental, and he replied that customary is “usual or habitual” and that incidental is simply “subordinate to the primary use” of the dwelling.

As Susan’s representative before the Board of Zoning Appeals today, I stressed that a distinction between feral cats and any other companion animal cannot be made under Virginia or local statute. Therefore, if it is customarily incidental to a residence feed or otherwise provide care to a companion animal such as a pet dog or cat, this must also be true for feral cats.

This position was supported by the lone dissenting vote that came from Russell “Al” Wright. Wright presented the view that the Board, in its judgment, should see the customarily incidental clause as a call for property owners to exercise common sense. And he strongly urged that feeding an animal that is homeless on one’s own property is certainly using common sense and therefore must be considered customarily incidental. He also cautioned his fellow Board members that upholding the violation against Susan would represent a gross infringement on personal property rights. If you can’t even feed an animal on your back porch, where will the regulation end?

The other Board members seemed unable to articulate a legal basis for their conclusion but nonetheless determined that they would support the original position of the director of planning to cite Susan. Vice Chairman Robert Witte introduced a motion to deny Susan’s appeal, which was immediately seconded by new Board member Greg Baka. They, together with Chairwoman Helen Harris and James Nunnally, voted in favor of the violation notice, effectively prohibiting Susan from continuing to feed or care for feral cats in her own yard. The Richmond SPCA will continue to explore options that will defend the lives of these cats and the rights of compassionate people like Susan.

In addition to being grateful to Al Wright for his thoughtful analysis of the issue, the Richmond SPCA and I want to express our gratitude to the more than 50 caring supporters who attended this morning’s hearing. Both personal testimony regarding the care and feeding of feral cats by dedicated community members and local groups such as Henrico Humane Society and empirical data from national organizations including the Humane Society of the United States and Alley Cat Allies more than outlined the case to support Susan’s appeal. The most compelling speaker by far was eighth-grader Katie Harris, who pleaded with the board to set an example of compassion for school children such as herself.

The Board of Zoning Appeals took an approach that came down on the side of hysteria instead of aligning the county with compassionate, reasonable care and management of feral cats. Prohibiting responsible people from providing food and care will in reality have the opposite effect on the neighborhood, leading the cats to forage for food and allowing their rabies vaccinations to expire. We fail to see the legal rationale for why the board would have decided in this way, and it does not seem to accomplish anything positive in practical terms either. All it does is subject innocent animals to starvation and lack of veterinary care. This was a sad day for animals and for the County of Henrico.

Robin Robertson Starr is the chief executive officer of the Richmond SPCA. To read her biography or that of our other bloggers, please click here. Before posting a comment, please review our comment guidelines. Please note that our comment policy requires a first and last name to be used as your screen name. 

Related: 
Sept. 20, 2011: Effort against feral cats in Henrico goes before Henrico Board of Zoning Appeals this Thursday
Sept. 22, 2011: Update on effort against feral cats in Henrico County
Oct. 14, 2011: Companion animals need your support in Henrico County on Oct. 20

Feral Cat Resources: 
For caretakers
For businesses and residents 

 

Comments

[Janie Evans]

I am absolutely appalled at this decision and heartbroken too. What will happen to the cats? Is there anything we can do as a community? I live in Powhatan but will go to bat for Susan.

[Lee Anne Holdren]

Well said. I've never seen such an inarticulate, disorganized argument as was presented by the other side today. Because the majority of Henrico households do not feed feral cats in our own yards, it appears that NONE of us are afforded this right. This, combined with unspecified hysteria about nonexistent health risks (and a sole neighborhood agitator with a flexible interpretation of truth) appear to have carried the day.

[annie pelfrey]

this is unbelievable!
Mr. Wright was the only person on that side who made ANY sense. at least i happen to live in his district.
what happens now?

[Ed Moore]

I applaud Henrico County. Susan Mills may be a responsible caregiver, but some are not. A lady in my neighborhood feeds a feral colony, names them, considers them her pets, but does not practice TNR. Despite repeated pleas from neighbors, she says " there is nothing wrong with what she is doing" and the colony of 15+ cats continues to grow. And yes, the neighborhood reached out several times to the SPCA for help, but nothing was ever done. So, thank you Henrico County for this ruling.

[Philip Crosby]

Bravo, Robin, for personally taking up this cause. Henrico should be hanging its head in shame this morning, for a ruling that makes no sense, either legally or morally.

[Robin Starr]

Mr. Moore –

We are happy to post your comment even though we find it mystifying. First, we have no record of your having ever “reached out” to us for any sort of assistance and your comment is totally unclear as to what specifically you wished for this organization to do. We provide free spaying and neutering and rabies vaccinations for feral cats and both your neighbor and you are free to trap them, have them spayed or neutered and vaccinated in our clinic and return them to the location where you trapped them. You seem to believe that your neighbor should be engaging in TNR and we would support that whole heartedly. However, we cannot understand why you would agree with the ruling of the Henrico Board of Zoning Appeals since they have actually prohibited Ms. Mills from “caring for” the feral cats and that means, we assume, that they are prohibiting her from doing TNR.

[Ed Moore]

These will be my last comments. Approve them if you want. We obviously look at this issue from different sides.

Some of my earlier comments were general in nature and not specific to the Mills case.
In fairness to me, not all comments (from either side) at the hearing (which I attended) were specific to the case. Now related to her case. Maybe Henrico should make a distinction between someone who is a responsible caregiver versus someone who is not. A person being responsible, trying to control the size of the feral colony and keep it healthy, perhaps they should be given some type of permit to do just that. But how would Henrico know that? How would you know? Do you honestly believe everyone in Henrico who is feeding feral cats is doing good. My guess is there are quite a few, like my neighbor, who are actually contributing to the problem by letting colonies grow uncontrolled. Until a distinction can be made, I fully support the decision yesterday.

Now for my situation. As for “reaching out” to the SPCA, I believe 3 calls define reaching out. A brief time line. Another neighbor called the SPCA approx 18 months ago. At that time someone did visit the neighbor lady who is feeding the colony, and they also returned a message back to neighbor 1, saying the lady agreed to get the cats spayed/neutered/shots -- but that did not happen. Apparently SPCA never did follow up with her, so neighbor 1 called back after another litter of kittens were born. SPCA said they could not force neighbor 2 to do anything, however, other neighbors could engage in TNR. To me this made no sense. If the SPCA is so adamant about saving all feral cats, then they should be doing follow ups to make sure feral colonies are kept in check. So after this, I called the SPCA and was basically told the same thing as neighbor 1. I could practice TNR but neighbor 2 can choose “not to”. Are you saying neighbor 2 should not be held accountable at all? If she chooses not to use TNR, that’s ok? and there is nothing the SPCA can do? Just let the colony continue to grow? When you asked ‘what did I expect you to do”, follow up is what I expected you to do and not give what seems to be the standard response. Other neighbors should begin TNR.

[Tabitha Hanes]

Mr. Moore,
The Board of Zoning Appeals made clear in its decision that the decision applies only to Ms. Mills, who as you concede in your last comment has been responsible for controlling the number and health of the cats in her neighborhood. It is specifically to that responsible caretaker that the board's ruling that she may no longer care for or provide rabies vaccinations to these cats applies.

Regarding your own neighborhood, we are glad that you and other neighbors have made contact with our spay/neuter clinic and that appropriate information was delivered regarding the services available through the Richmond SPCA. There are an amazing range of services we make available to our community, including the approximately 2,000 free surgeries plus rabies shots we perform annually for feral cats along with providing education, but we have absolutely no power to compel people to engage in TNR or use our services. Building a more compassionate community that does not rely on killing to control the animal population is the goal of this organization, and the vast number of services we provide bear out our commitment to our mission, but we do not have the authority to force people to be responsible.

It seems that there are a number of neighbors with whom you share goals, including the desire that the colony fed by neighbor 2 does not continue to grow. Could you work with them toward that common goal by trapping the cats, bringing them to be spayed/neutered and vaccinated against rabies, and returning them for neighbor 2 to continue feeding? Perhaps she has limitations making it difficult for her to manage trapping and transporting the cats. Have any of the neighbors talked with her about working together for a mutually beneficial arrangement?

[Regina Castro]

If you don't like animals, you don't like people either. I think buddy it's time to move or get a job if you have time to monitor what time your neighbor feeds the cats-too sad.

[annie pelfrey]

Tabitha is right. the longer people wait for "someone" else to do it, the worse the problem becomes.

[Pam Deyerle]

Does the SPCA provide help and assistance when someone does want to do TNR? Meaning do they come out and set the traps (with food), return to check on them until a cat is caught, remove the trap and cat to then spay/neuter/vaccinate, and then return the cat to the area? Or is all of that left up to the individual? It doesn't sound like from the comments above that the SPCA does that, but I could be wrong.

Responsible people like Ms. Mills should be allowed to continue, of course. But I can also see the side of Mr. Moore. If a person cares enough about feral cats to feed then, I have a hard time believing they would refuse TNR IF an organization did all the work for them.

[Tamsen Kingry]

Pam, the Richmond SPCA tries very hard to empower and train individuals in the community who have identified or are already feeding a group of feral cats to engage in trap-neuter-return. We will loan individuals the traps and teach them how to use them effectively and safely so as to ensure their success. If someone is not physically able to perform T-N-R him or herself, then we attempt to find volunteers in the community who can provide assistance to them to accomplish T-N-R. We typically reach out to caretakers already using our Smoky's Spay/Neuter Clinic to see if they may provide help. Many times we have united volunteer caretakers with community members feeding colonies so that the cats can be sterilized and vaccinated against rabies. If you or anyone you know is interested in helping with special T-N-R projects like this, please contact tkingry@richmondspca.org. Thank you!

[Pam Deyerle]

Thanks, Tamsen. I thought a friend of mine found a group/person to do that for her mother who has three or four feral cats that they are still currently feeding, but the actual TNR was a few years ago so I could be remembering incorrectly. I'll try to find out.