Board affirms planning decision: Brennan property not a farm; appeal denied

The Kent County Board of Adjustment affirmed the planning departmentdecision that the Brennan property at 2442 Jeb Road is not a farm under county code, voting unanimously to deny the application to designate the parcel as a farm.

The decision means the property will continue to be treated as a residential parcel for purposes of local regulations that limit backyard poultry and similar uses unless further administrative steps or separate appeals change that outcome.

Attorney John Pardee, representing Donna and Jeffrey Brennan, argued the countys zoning framework does not permit the planning office to bar agricultural uses on land zoned Agricultural Conservation (AC) and that the Brennan flock is a lawful agricultural use. Pardee cited the Delaware Constitution and a Delaware court precedent to argue counties may not prohibit agricultural uses on agriculturally zoned property. "Kent County has no legal authority to restrict agricultural uses on AC zone properties," Pardee said during his presentation.

Pardee presented photographs and county data showing a large number of registered backyard flocks across Kent County and described the Brennan flock as registered with the Delaware Department of Agriculture. He said backyard flocks are widespread in the county and argued that the Brennan operation is consistent with common local practice and state agricultural law.

Planning department counsel Lisa Hatfield, representing county staff, said the appeal concerned one discrete administrative decisionthe staff denial of the farm designationand that the county had properly applied the farm definition in the code. Hatfield described the surrounding pattern of use and parcels in the immediate vicinity as a cluster of roughly 25 single-family lots on about 1-acre parcels and said the county treats primary purpose as the test for designating a parcel a farm. "The key word here is primarily," Hatfield told the board, arguing the propertywhile zoned ACis being used primarily as a residence and not as a farm.

Neighbors and other residents gave public comment in opposition, citing noise, odor, potential public-health concerns, property values and private deed restrictions. Multiple neighbors said they supported modest backyard flocks but opposed the scale of the Brennan birds; several witnesses said the property currently houses multiple dozen birds and at least one rooster, and the planning enforcement record includes a notice citing more than five birds and setback issues.

Board members questioned whether the appeal before them was limited to the single administrative denial of farm status rather than a broader permit or enforcement action. During deliberation commissioners emphasized that the narrow question was whether planning staff erred in determining the parcel did not meet the countys farm definition.

After discussion, a motion to affirm planning servicesdetermination was made and seconded. The board voted to affirm the staff decision (outcome: appeal denied and planning determination affirmed). Several commissioners said the record and testimony showed the propertywhile zoned Agricultural Conservationis being used primarily as a residence and therefore does not meet the countys farm definition as written in section 205-54. The board noted that other county and state regulatory obligations (setbacks, building permits, nutrient management if thresholds are met, and Department of Agriculture registration) remain applicable to the property.

The board's ruling affirms the county's finding and leaves in place the planning department's enforcement steps; neighbors and the Brennans may pursue further administrative or legal options as allowed by law.