CAPE ELIZABETH – Following months of debate regarding a crowing rooster in a rural Cape Elizabeth neighborhood, the Town Council approved an ordinance last week that bans the birds on properties smaller than 40,000 square feet, or less than 1 acre.

But those against the new restrictions – including two councilors and some Cape Elizabeth residents who turned out for a Nov. 6 hearing – oppose an outright ban and say the council should have considered other options.

The ordinance bans roosters on 2,800 properties, which is 60 percent of residential lots, but 11 percent of the total land area in town, said Councilor David Sherman.

Among the properties affected include 17 Farm Hill Road, where a noisy rooster named Elvis was the focus of complaints by some neighbors earlier this year.

Joe Gajda, a neighbor who lives at 15 Farm Hill Road, originally complained about Elvis’ loud crowing to the Town Council in July.

“It’s like an assault,” Gajda said of Elvis’ crowing, during the hearing.

Patrick and Crystal Kennedy, owners of Elvis, have done what they could to appease the neighbors, including soundproofing the coop and forcing Elvis to wear a rooster collar to restrict his volume. According to the Kennedys, they have since given Elvis away because it started to attack their family dog, Toby.

“When we got rid of our rooster my daughter was sitting there sobbing,” said Patrick Kennedy. “The rooster was part of our family. Try to find humor in getting rid of your pet.”

“There have been a lot of exaggerated claims about how loud the rooster (was),” he added.

Crystal Kennedy said allowing roosters on lots larger than 40,000 square feet is discriminatory.

“It’s not just about us anymore; it affects all Cape Elizabeth residents, including residents like us that want to have a backyard flock, including roosters,” said Crystal Kennedy. “Unless you have money you are not allowed certain rights.”

She said that passing the ordinance suggests that the town is “unwilling to meet in the middle. This is not a good compromise,” said Crystal Kennedy.

In 2011, the council considered restricting roosters on small lots, but the issue was dropped in 2012 after the “rooster in question” disappeared.

Following the public hearing, the council voted 5-2 to amend the town’s miscellaneous offenses ordinance regarding animal control to prohibit roosters on lots smaller than 40,000 square feet.

Meanwhile, councilors Jamie Wagner and Caitlin Jordan, and a handful of residents, continue to oppose the rooster ban.

Leona Fitzgerald of Long Point Lane, who lives on a lot less than 40,000 square feet and who owns roosters, said she believes the ordinance is not the solution, especially for lots like hers that are surrounded by woods and without nearby abutters.

She urged the council to consider an exemption for rooster owners like herself who live in a rural area.

“There is no denying roosters can be noisy. They don’t just crow in the morning; they crow as long as it’s light out,” she said. “It comes down to being a good neighbor and using common sense.”

Though the ordinance does not regulate roosters on farms, Beth Angle, owner of Cranky Rooster Farm, said Friday that the ordinance is “the beginning of an enormous change.” She said it impedes on the personal property rights of Cape Elizabeth residents who wish to raise animals on smaller lots.

“I think it’s sad,” Angle said Monday. “They passed an ordinance that actually changes people’s rights to their own property.”

She said the councilors considered the regulations “so quickly, after very few complaints. Both of the complaints about roosters in the past were resolved between the neighbors,” according to Angle.

Angle, a real estate broker, said the council should have surveyed Cape Elizabeth residents and taken “a little more time to investigate” before taking action.

Prohibiting certain animals, including roosters, on residential lots changes Cape Elizabeth’s agricultural nature, she said.

“I have great fears not only for people’s personal property rights but also for people’s rights to have animals,” for food or personal reasons, said Angle.

“I think whether you have 1 acre or 2 acres, that a rooster is going to be just as loud,” said Angle. “If that had been a barking dog that barked constantly and drove those neighbors crazy, there would not be an ordinance (saying) that you can’t have dogs on lots 40,000 square feet or less.”

Councilor Jordan, a Cape Elizabeth lawyer and business manager of Alewive’s Brook Farm, voted against the ban saying that she would have preferred the issue to be tabled and for the councilors to consider a different solution.

“I think it’s a big slap in the face to all the citizens who come out and bother to speak,” Jordan said Monday.

“I didn’t see a pressing need to make a decision Thursday (Nov. 6),” she said.

In an email to the Current Monday, Town Manager Michael McGovern said the Town Council routinely approves items following public hearings. Residents have also been given several chances to speak publicly about the issue at four separate council meetings and an ordinance committee meeting, said McGovern.

“My sense is that the 5-2 vote not to table this issue reflects the council majority feeling comfortable that they had enough information to make a decision,” McGovern said.

Jordan said banning roosters by lot size does not properly address the issue of crowing roosters in dense neighborhoods.

“I don’t think it’s a rooster issue, I think it’s a noise issue,” she said. “I think our noise ordinances need to be addressed – not a ban on roosters.”

Residents with roosters on lots smaller than 40,000 square feet would not be grandfathered under the ordinance, said Jordan, even if their properties are secluded, or if their roosters don’t pose a problem. The new ordinance means that those residents would essentially be “breaking the law.”

“I don’t think that’s a fair position to put people in,” Jordan said.

Banning roosters on small residential lots does not reflect what is written in the town’s comprehensive plan regarding Cape Elizabeth’s agricultural heritage, said Jordan.

“Whether it affects 100 people or two people, it shouldn’t matter,” Jordan said of the ordinance. “It’s going to affect somebody. If you were to follow the ordinance as written, anybody with a rooster on a lot of 40,000 square feet or less has to get rid of their rooster.”

Council Chairwoman Jessica Sullivan said “backyard chickens is a growing trend and interest for people,” but “for people who live on small lots, this is a sensitive issue. People can’t enjoy their properties if they are hearing constant noise next door.”

“It’s unfortunate that somebody living in a dense neighborhood would have a rooster, because it can be very disturbing to other people,” said Sullivan.

She said that the majority of the council believes the ban “would not adversely affect agricultural activities in Cape Elizabeth.”

Up until last week, she said councilors received several emails from residents who urged the town to pass the ordinance.

“Even though there were a few people who spoke the other night, they were not in the majority of what we heard from citizens,” Sullivan said Monday. “The comprehensive plan does affirm our rural nature, but it certainly does not preclude us from addressing this type of situation in any way.”

The council’s decision to pass the ordinance was not a “knee-jerk reaction,” said Sullivan, as the public was given plenty of opportunity to weigh in on the issue in the past several months.

“The goal here is to prevent roosters from living in a neighborhood where your neighbors will hear them crowing,” said Sherman, Nov. 6.

“The backyard chicken movement seems to be growing stronger, and I’m all for that, but if you have neighbors that are being affected by a rooster crowing, it seems to me that roosters lose in that equation,” Sherman said.

A rooster named Elvis was the focus of noise complaints in a dense residential neighborhood in Cape Elizabeth beginning in July, until his owners Patrick and Crystal Kennedy gave him away recently.