Play­ing Chicken with Property Rights

Serve Daily - - FRONT PAGE - By Josh Daniels

Spr ing vi l le Ci t y con­side red a mea­sure to per­mit res­i­den­tial home­own­ers to have back­yard chick­ens— al­beit sub­ject to heavy reg­u­lat ion and a li­cense. Af ter ro­bust pub­lic com­ment , the ordi nance pa ssed 4- 1. While I ap­plaud this move and wel­come Springville to the grow­ing club of cit ies al­low­ing res­i­dent ial hens, it shouldn’t take an of f icial or­di­nance to per­mit some­thing that is fun­da­men­tal to pri­vate proper ty r ights in the f irst place.

John Locked called the preser­vat ion of proper ty r ights “the great a nd ch ief end” of gove r nment . Such rights are not mere res­i­den­tial oc­cu­pancy, but the r ight to prod­uct ively use one’s own proper ty for sub­sis­tence and gain. The English t ra­dit ion of proper ty r ights post Magna Ca r t a h a s le d to n e a r ly ev­ery­one be­ing able to en­joy proper ty owner ship. How­ever, a t rou­bling t rend of grow­ing govern­ment author­ity has placed property rights un­der di­rect and sus­tained at­tack. From as­set for­fei­ture to ex­pan­sions in em­i­nent do­main, and even to zon­ing reg­u­la­tions, proper ty r ights have waned over the last century.

One de­feat for proper ty own­ers came in the 1926 Supreme Cour t case of Vil­lage of Eu­clid v. Am­bler Rea lty Co. Chief Jus t ice Ge­orge Suther­land, a Utahn, de­liv­ered the ma­jor ity opin­ion up­hold­ing a zon­ing reg­u­la­tion as a con­sti­tu­tion­ally rea­son­able ex­ten­sion of a c it y’s reg­u­la­tory “po­lice power.” Suther­land saw the case as an appl ica­tion of nui­sance law to the mod­ern chal­lenges of u rban de­vel­op­ment. Si n c e thi s d e c i sion, zon ing ha s taken of f across the count r y and mu­nic­i­pal rest r ic­tions on proper ty r ights have swollen.

How­ever, nui­sance and zon­ing are dif fer­ent. Zon­ing as­sumes cer t ain land uses are in­her­ently a nui­sance thus com­pletely dis­al­low­ing them in the ap­pli­ca­ble zone; t ra­dit ional nui­sances are de­cided on a case by case ba­sis and are sub­jec­tive. While the prin­ci­ples of nui­sance law are im­por tant to pre­serv­ing the proper ty r ights of oth­ers, the blan­ket ap­proach of zon­ing can be prob­lemat ic. Zon­ing rest r ict ions of ten pro­hibit land uses that are rea­son­able or be­nign. Some ar­gue such rest r ict ions a re the re­sult of real es­tate de­vel­oper in­ter­ests seek­ing

re­turns f rom de­vel­op­ment by us­ing govern­ment force to en­sure a cer­tain neigh­bor­hood aes­thetic. Such ef­for ts are best lef t to pri­vate con­tract via deed re­stric­tions— not city hall. While some zon­ing reg­u­la­tion may seem rea­son­able, it is odd that a sub­urb like Springville would not al­low some­one to raise a few chick­ens i n t hei r back­yard with­out its bless­ing.

In the case of Springville, the pro­hi­bi­tion on chick­ens star ted in the 1950s. While one op­po­nent of res­i­den­tial chick­ens warned the coun­cil that the sky was fall­ing ( or at least that ro­dents would de­scend), other op­po­si­tion to chick­ens must have f lown the coop since publ ic com­ments were 24- 1 in fa­vor. Pro­po­nent s’ a rgu­ment s ranged f rom food in­de­pen­dence to em­pha­siz­ing the fun­da­men­tal is­sue of f reedom. Luann Hawker, a sup­por ter, said “un­less there is a com­pelling rea­son to deny a free­dom, it should not be de­nied.”

This point can­not be overem­pha­sized; while the specif ic sub­ject in Springville was chicken own­er­ship, the un­der­ly­ing more fun­da­men­tal point is proper ty r ights. In­di­vid­u­als have a nat­u­ral right to use their proper ty in a way they de­sire pro­vided do­ing so does not vi­o­late the r ights of those around them.

As Locke ex­plained, the pur­pose of govern­ment is to pro­tect property r ights— not vi­o­late or il­le­git­i­mately rest r ict them. Spr in­gville’s sl ight loos­en­ing of the law only grants this r ight af ter com­pli­ance with reg­u­la­tions, in­clud­ing ob­tain­ing a govern­ment per­mis­sion slip. While Spr in­gville should be com­mended for f in­ally tak­ing this step, res­i­dents should al­ways asser t their proper ty r ights and op­pose regul a t ions that make the i r ex­er­cise con­di­tional upon the govern­ment’s ap­proval.

Josh Daniels is a pol­icy an­a­lyst with the Lib­er­tas In­sti­tute in Utah. Ar­ti­cle ap­peared orig­i­nally at Lib­er­tasU­tah. org and is re­pub­lished with per­mis­sion.

Luann Hawker - Whole Grain Pho­tog­ra­phy

Gwyneth ( 8), Gabrielle ( 14), and An­drea Hawker ( 6) show off their pol­ish crested hen and the first eggs they col­lected af­ter adopt­ing a flock of 3 hens. April 2, 2013

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