Richmond farmer whose guard dogs were deemed dangerous is challenging that ruling in court

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RICHMOND — See you in court.

That's the response from Thomas Gardner, the farm owner whose sheep-guarding dogs have been targeted for stringent restrictions by an order of the town's Select Board.

Gardner has appealed the order through his attorney, Andrew Hochberg of Pittsfield. The dogs have been held responsible for three documented attacks on people within the past nine months.

Hochberg told The Eagle that the town's order was "arbitrary and capricious" and that the Select Board acted beyond its authority. The appeal has been filed with the clerk-magistrate of the Central Berkshire District Court for a show-cause hearing, which could lead to a trial.

But after a conversation with Donna MacNicol, the town counsel for Richmond, Hochberg said he would be open to further discussion.

On May 10, the Richmond Select Board voted 3-0 to declare as "dangerous" all of the 21 dogs owned by Gardner, whose farm is at Route 41 (State Road) and Lenox Road. The vote followed six hours of public hearings over two nights, including sworn testimony by concerned neighbors and dog-bite victims.

Hochberg confirmed that Gardner has followed through on his voluntary commitment to euthanize three of the guard dogs, named Conrad, Barack and Leftover, who were identified as responsible for an attack that month on Robert Hoogs of Foresight Land Services, who had been hired to do some work on the 29-acre property.

When he arrived, he was attacked by several of the Maremmas, a breed from central Italy trained to guard livestock. A written report from Fairview Hospital in Great Barrington stated that Hoogs suffered bites by multiple dogs in the right leg, both arms, his back and buttocks and his elbow.

The demise of the three dogs means Gardner now has 18 canines on the property — Claudio, Scylla, Charybdis, Ursula, Margaret, Borachio, Beatrice, Paulo, Susie, Dylan, Caellebaut II, Baxter, Spot, Buster's Sister, Pepper, Brother, Sarah and Noah. Nine are Maremma guard dogs, five are shepherds, two are Australian shepherds and two are rat terriers.

The Select Board's order, signed by Town Administrator Mark Pruhenski and mailed to Gardner on May 24, specified that all his dogs must be identified by using color-coded collars. "Each dog shall display a different brightly colored collar so that they can be easily identified by the average person," the order stated.

The town also requires that, through attrition, the number of dogs on the property be reduced to no more than four. Prominent "Warning-Dangerous Dogs" signs must be posted at all entrances to property fencing, visible under all lighting conditions.

Auto-closing, self-locking gates will be required at all entrances to the property, and the Select Board must be notified within 24 hours if any dog escapes or if any attacks on people occur, the order stated.

Also required within 60 days:

- Six-foot-tall fencing, internally electrified at all times and set back at least 50 feet from occupied property lines and the road, with solid construction that does not allow the dogs to see through the fence.

- Unannounced inspections on a schedule to be determined by the Select Board.

- Insurance on all dogs, totaling $100,000, and all must be spayed or neutered with proof provided to the town.

Hochberg, the attorney representing Gardner, said the dogs "are used as guard dogs and herd dogs as well as pets, in part to protect his farm animals and livestock including chickens, guinea fowl as well as his flock of sheep from predators." He stated that all are licensed by the town and are current with state-required vaccinations.

"Livestock issues due to predation have been an issue in the neighborhood in the past," he noted.

In his comments, Hochberg focused on an April attack upon nearby resident Verne Tower, who told the Select Board at the public hearing that he got out of his vehicle when he saw a group of dogs running loose on the roadway. During his attempt to get them back inside the Gardner property, where the gates had swung open because of high winds, Tower was attacked and received injuries requiring hospital treatment.

According to Hochberg, "alternative resolutions existed" and he maintained that "after taking testimony but without any evidence that all the dogs owned by Plaintiff were involved in any incident involving Verne Tower, the Select Board deemed all 21 dogs dangerous and ordered eight conditions concerning the Plaintiff's dogs and his property."

The attorney said the town's order "was without proper cause or justification, was arbitrary and capricious, based upon improper motive and exceeded the Select Board's authority."

In his comments to The Eagle, Hochberg said only the three Maremma guard dogs that Gardner recently put down were "directly connected to any incidents" and that the remaining dogs "have not been directly linked to any unjustified attack of a person and do not behave in a manner which would cause a reasonable person to believe poses an imminent threat of physical injury or death," according to state law.

He also cited state law that "a dog cannot be declared dangerous if the dog was reacting to a person provoking the dog, and the dog's reaction was not grossly disproportionate. Verne Tower provoked the five dogs involved in the incident by getting out of his vehicle and attempting to herd the dogs back into a property that was not his own property."

Hochberg also contended that "in declaring all the dogs dangerous, the Select Board considered testimony relating to the barking and growling of the dogs, actions of dogs which cannot be considered in the dangerous designation" under state law.

He also challenged the Select Board's designation of all 21 guard dogs as dangerous, noting that although Tower identified the five dogs that attacked him as "white dogs," which are the Maremmas, "state law does not allow dogs to be designated as dangerous based in part upon their breed."

Hochberg, stating that "there was no complaint about nuisance dogs," also labeled as "arbitrary" the town's designation of all the remaining dogs as dangerous, and thus, he argued, the Select Board's May 24 order "contains no rationale or stated basis."

No date has been scheduled yet for the requested show-cause hearing before the Central Berkshire District Court's clerk-magistrate.

Clarence Fanto can be reached at cfanto@yahoo.com, on Twitter @BE_cfanto or at 413-637-2551.

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