There are many ways to keep nuisance birds off of your building or away from your crops.
There's this one, a plastic owl perched on the 4th floor of the Maui courthouse.
There are other devices: scarecrows, balloons, and even dead birds. But our favorite is the scare gun, a "propane powered gas gun which produces a periodic loud explosion." Sounds like fun.
But not to the powers-that-be in the Town of Trempealeau, Wisconsin. In 2013, the Town adopted an ordinance, amended the following year, which requires anyone who wants to use a scare gun to get a permit. These permits restrict the time, place, and manner in which the owner can employ said gun.
Farmer Klein had used a scare gun on his property since 1962 to keep blackbirds from devouring his crops. He obtained a permit, but apparently didn't follow the ordinance closely enough because he was cited for operating a gun "at an angle of less than forty-five degrees from a neighboring property line." Klein defended by arguing that he had a vested right to use the gun, the ordinance violated the state's Right to Farm Act, and that the Town had no authority to adopt the permit requirement.
Klein asserted that his troubles began when new neighbors moved in near his property in 2011, but the Town claimed Klein's guns disturbed a lot more people (60 area residents signed a petition asking the Town to ban Klein's guns), and that the noise was constant ("the scare guns nearest the Kriesels' residence were discharging approximately every twenty-six seconds, and scare guns on other portions of Klein's property were discharging approximately every ninety seconds"). No wonder the blackbirds kept away.
The trial court denied Klein's motion to dismiss the charges, but after trial he was acquitted because the Town had not established it was Klein who was operating the guns. Klein appealed the denial of his motion to dismiss.
The court of appeals in Town of Trempeleau v. Klein, No. 2014AP2719 (Aug. 18, 2015), affirmed, and held that Klein had no vested right to continue to use his scare guns free of regulation. There is a lot in the opinion focusing on the "land-usey" issues, the distinction between a zoning regulation and a police power regulation, and why the Right to Farm Act doesn't help.
Of course, the most interesting part of the opinion to us is the takings stuff, which starts on page 10 of the slip opinion. The ordinance did not deprive Klein of "all or substantially all of the beneficial use of his property." Even if limiting his use of the scare guns resulted in a loss of 50% or more of his crop, that's not enough to constitute a taking.
Besides -- and here's the key part -- the ordinance isn't a prohibition on scare guns, merely a restriction on when and how they can be used:
Klein cites no evidence to show that the same level of damage he observed on a field completely unprotected by scare guns would occur on his own property if he used scare guns in compliance with the ordinance.Slip op. at 11.
Sounds about right.
Town of Trempealeau v. Klein, No. 2014AP2719 (Wis. App. Aug. 18, 2015)
