UNITED KINGDOM -- A district court judge has upheld the town’s order that a West Street couple erect an 8-foot fence to contain their three “nuisance” dogs that have repeatedly attacked neighborhood residents and other dogs.
Westboro District Court Judge Paul M. Yee ruled the town’s eight-point order — which includes a requirement to install the fence at 85 West St. — was not unreasonable, and ordered the couple to comply within 30 days of the June 27th order.
After an emotional hearing before selectmen in April 2011 about their three Airedale terriers, Brant Viner and Margaret Harling of 85 West St. were ordered to install an 8-foot-high chain-link fence — the portion facing West Street to be solid or contain privacy strips — back 125 feet from the road; the dogs must be under the supervision of an adult who can control the dogs when they are in a fenced-in area; Phineas must be muzzled any time he is outside the house, including when he is in the fenced-in area; and the other two dogs — Phoebe and Boudicca — must be muzzled when removed from that fenced-in area and on a leash, even if on another part of the property.
The couple, while agreeing that their dogs needed to be contained because of their history of escapes and attacks, appealed the order a month later, saying it was “fatally flawed” in that it required the construction of an 8-foot fence, rather than a 6-foot fence. They also argued that the order should not apply to Boudicca, a puppy, because there was no evidence he had injured any person or dog. The couple added that the order would have required the fence to be built in the middle of a vegetable garden and was “arbitrary and capricious.”
While some neighbors during the hearing had described the dogs as vicious and aggressive, Ms. Harling, who is limited in mobility because of multiple sclerosis, said the dogs are her companions.
Judge Yee issued his ruling after a bench trial in January that featured witnesses including a veterinarian with a specialty in animal clinical behavior, the couple’s dog walker, groomer, and friends of the couple, and witnesses of various attacks.
Judge Yee wrote that the town had “credible evidence of nuisance by reason of vicious disposition,” and that the dogs had escaped several times over the years, attacking a neighbor and five other dogs, causing at least two of the dogs to require stitches.
Judge Yee also found that one dog — Phineas — has territorial aggression that cannot be curbed through training or other measures. Based on the evidence, “I infer and find that Phineas will continue to attack any dog or person nearby the (Viner-Harling) property and is clearly a nuisance by reason of vicious disposition and other disturbances,” the judge wrote.
Judge Yee also found that the other two dogs exhibit territorial aggression as well, as evidenced in an attack on Thomas Sullivan and his dog, Cody, in which the attackers bit Cody in the neck and rectum, attempting to kill him. Cody survived, protected by Mr. Sullivan, who lay on top of him.
However, the couple in their appeal contended that their three dogs only bark, but do not attack, act aggressively or bite. In their appeal, they contended the 8-foot high fence is unsightly and would make them feel like they would be living in a prison. They said they were willing to pay for a 6-foot-high chain-link fence and there was no logic behind the setback or order to muzzle the dogs.
“First, an 8-foot-high fence with a pen is not unreasonable but fair and reasonably necessary to contain the petitioners’ dogs in light of the facts,” Judge Yee wrote. “Both petitioners are physicians, and there is no evidence that the costs associated with any of the eight items in the town’s order are too costly or otherwise burdensome.”
Judge Yee added, “The law is clear that the petitioners (Viner and Harling) have a duty to ensure that their dogs did not escape to hurt any dog or person.”
The judge said the 125-foot setback is reasonable to allow neighbors and other residents to walk along the street without being barked at or harassed by the dogs.
“In lieu of euthanization or disposal of Phineas and Phoebe, increased measures for adequate containment and restraint of the petitioners’ dogs to reasonably ensure the protection of petitioners’ neighbors and the public are clearly warranted and reasonable,” Judge Yee wrote.
He noted a previously failed order to erect a 4-foot chain-link fence that gave way under snow.
“To take a walk or a jog around the neighborhood, the neighbors should not be put in fear or required to arm themselves to protect themselves from the petitioners’ dogs. Without these measures set by the town, neighbors will be, in effect, prisoners in their own homes due to the petitioners’ maintenance of this nuisance through their dogs.”
Ms. Harling and Mr. Viner could not be reached for comment.
(Worcester Telegram - July 19, 2012)
