MARION, Ky. — A public nuisance ordinance penalty of $250 per-chicken-per-day for a broiler house operation for offensive odors would levy fines “excessive to the point of absurdity,” a judge ruled.

        “The prescribed penalty under the present ordinance would amount to a "death penalty' for the offense of trespass,” Crittenden Circuit Judge Tommy Chandler wrote in his order filed Thursday.

        At issue were charges last summer against a chicken grower under contract with Tyson Foods. The city claimed odors from 400,000 chickens just outside the city limits were a public nuisance, and its ordinance allowed fines of $250 per animal per day — a penalty one judge had already ruled excessive.

        Ten homeowners in the Greenwood Heights subdivision filed complaints last year in district court against Tyson and B&G Poultry Inc. Bud Wardlaw, owner of B&G Poultry Inc., operates 16 broiler houses that raise the chickens.

        In April, District Judge Rene Williams ruled that the fines in the ordinance were excessive. She said state law limited the penalty to $500 per day. Under the city ordinance, fines could exceed $100 million a day. Judge Williams' ruling also allowed the case to go to trial.

        Both sides appealed Judge Williams' decision to circuit court, and Judge Chandler agreed that the fine was excessive.

        “The purpose of penalties such as fines is to punish the wrongdoer for its wrongful acts and to discourage it from repeating its unacceptable conduct, not destroy it,” Judge Chandler wrote.

        “It is clearly the accumulation of thousands of chickens that creates the odor and those thousands of animals can effect only one trespass,” Judge Chandler wrote.

        But Judge Chandler agreed that the chickens can create a nuisance within Marion, even though they are outside the city.

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