Thursday July 25, 2013

KEITH WHITCOMB JR.

Staff Writer

BENNINGTON -- The town has seven days to respond to a local dog owner’s legal argument that unless his animals are being neglected, the town can not seize them as per a preliminary injunction issued by the Bennington Superior Court on July 9 in response to barking complaints.

Dereck A. Jensen, of East Road, owns approximately a dozen pit bulls which he keeps in outdoor enclosures at his home. His neighbors say the dogs bark for hours at a time and according to findings the court made after a July 5 injunction hearing, Jensen has been ticketed by police a number of times for being in violation of the town’s noise ordinance.

On Wednesday, Judge Cortland Corsones heard final arguments from the town’s attorney, Rob Woolmington, and Jensen about the preliminary injunction, which gives the town the go-ahead to seize Jensen’s dogs. Woolmington clarified at the hearing that the would like the authority to permanently remove the dogs but was not wishing to have them destroyed.

Jensen cited Title 20 V.S.A 3550 which regards "domestic pet or wolf-hybrid control," arguing that it would allow his dogs to be taken only if they were being neglected. He said the law does not allow them to be removed for barking, but acknowledged he could be issued tickets.

Corsones said he would give Woolmington seven days to respond to that argument, then shortly thereafter he would issue a decision, which Jensen can appeal within 30 days.

Jensen testified that since the July 5 hearing he has purchased a barking control system. According to him, the device emits a high-frequency noise whenever it senses a high level of barking. He said it takes about two weeks for dogs to learn to associate the noise with barks and his commands to stop.

Jensen played two videos for the court that he took on his cell phone that he said showed his neighbors enjoying their property without the animals making noise. He said this was to counteract claims that the dogs made this impossible for them.

Woolmington called Robert Mayer, Jensen’s nearest neighbor to the stand and asked him to play a recording he made of the dogs barking for more than 15 minutes at a time. Fifteen minutes of continuous barking is the limit in the town’s noise ordinance. Mayer played the recording and said he made it from his back patio while Jensen was home.

Corsones said he would consider testimony offered at the preliminary hearing, which according to his written findings of fact included a number of neighbors testifying about the level of barking going on.

According to the preliminary injunction, Kevin Bisaccio, a neighbor of Jensen’s, said the dogs bark for more than 15 minutes at a time, primarily between 5 and 7 p.m. which is their feeding time. They bark at other times, as well, and this has been going on since June 2012. According to the court, Bisaccio discovered in June 2012 that some of Jensen’s dogs were actually on Bisaccio’s property, and he had Bennington Police remove them in August of that same year.

Barbara and Brian Allard told the court that Jensen’s dogs bark at them when they use their yard, enter their driveway, and open doors.

In May, the Select Board started the process of creating an ordinance that would, among other things, change the number of dogs that can be kept on private property before it is considered a kennel, and would lower the 15 minute barking limit to seven minutes.

In an interview with the Banner in February, Jensen said he keeps the dogs and enters them into dog shows and weight pulling events.

Contact Keith Whitcomb Jr. at kwhitcomb@benningtonbanner.com or follow him on Twitter @KWhitcombjr.