Posted 1:05 am Saturday, March 12, 2011
Temporary Restraining Order Extended Against Whitehouse Animal Ordinance
By KELLY GOOCH
Staff Writer
Staff Writer
A Smith County judge on Friday extended a temporary restraining order against the City of Whitehouse, prohibiting the city from enforcing its newly adopted animal ordinance against Wild Rose Rescue Ranch.
Wild Rose Rescue Ranch, located at 410 Willingham Road, is a nonprofit organization whose mission is to "rescue, rehabilitate and, whenever possible, adopt out to 'forever homes' lost, orphaned, injured or unwanted animals that would otherwise suffer." It filed a lawsuit last week against the city alleging that the new ordinance is unconstitutional.
Judge Kerry Russell extended the temporary restraining order until March 30 and rescheduled an injunction hearing for March 29.
Meanwhile, both parties will try to negotiate a temporary agreement on the ordinance.
"We're pleased that the city is not going to be seizing these animals at the ranch," said Randy Turner, co-counsel for ranch owners Bob and Georganne Lenham. "They're safe for the time being. They (the Lenhams) do awfully good work and it would be (a shame) to shut them down."
Kay Davenport, co-counsel for the Lenhams, said the goal is to protect the couple permanently from seizure of their animals.
Turner said the ranch has been sanctioned since 2004 -- long before the animal ordinance passed -- and the city cannot enact an ordinance banning activity that's been legal for years.
Whitehouse Assistant City Manager Kevin Huckabee, who wrote the ordinance, said the city never had intentions to seize the animals at the ranch. However, it did want to stop nuisance complaints.
"We're not targeting the Lenhams. We're responding to complaints," he said, adding that the city has received one complaint about the Lenhams since the ordinance passed.
Huckabee has said the Animal Control officer will look into animal nuisance complaints as they come up.
When the Animal Control officer is determining excessive animals, he will consider multiple factors such as the size of property, types of animals, amount of animals and the validity of nuisance complaints.
Huckabee said the city wants to work with the Lenhams and protect residents.
Whitehouse City Manager Mike Peterson said possible solutions include the Lenhams reducing the number of dogs they have or moving their dogs to another place on their property, where the animals are not considered a nuisance.
The ordinance
The Whitehouse City Council unanimously approved the animal ordinance last month.
The ordinance does not permit animals to run at large.
It also limits the number of animals that may be kept on private property to four dogs or four cats, with exceptions, and states that the Animal Control officer can authorize the possession or keeping of livestock on a case-by-case basis, "provided that the number of livestock is not in excess."
The lawsuit alleges that the ordinance is "unconstitutionally vague and ambiguous," as it claims to limit the number of dogs to four but also states that "If an owner violates any provision of this article ..." then the number is limited to "a number prescribed by the Animal Control officer."
Ms. Davenport has said that essentially means homeowners can be held liable for something that cannot be defined.
According to the lawsuit, the ordinance also does not define "excess" or clearly state how many horses can be kept on a property within the city. The definition of "nuisance" -- "anything that is offensive, annoying, obnoxious or injurious to the community at large or to an individual" -- is also "vague and ambiguous," the lawsuit states.
The lawsuit also claims that Wild Rose Rescue Ranch had more than four dogs and kept several horses long before the ordinance was enacted. Therefore, the ordinance impairs the owners' right to possess the animals, is retroactive and violates the Texas Constitution, according to the lawsuit.
"The ordinance, I can understand it for someone in a city lot in a regular home, but these people have (about) 50 acres," Ms. Davenport said last week. "They were there in 2004 ... so they were there before the ordinance was there. They should not be restricted to the number of animals."
