Playing Chicken with Property Rights
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.
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