Playing Chicken with Property Rights
“The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property”—John Locke, Second Treatise of Civil Government
Last night the City Council for the City of Springville considered an ordinance that would permit residential homeowners to keep and raise chickens in their backyard—albeit subject to heavy regulations and a license. After robust public comment, including input from Libertas Institute, the ordinance was passed with only one dissenting vote. While we applaud this move and welcome Springville to the growing club of cities allowing residential hens, we argue that it shouldn’t take an official ordinance to permit something that is fundamental to private property rights in the first place.
The property rights that John Locke spoke of in his treatise were not just residential property rights, but the right to productively use one’s own property for gain, subsistence, and enterprise. Since the 13th century when King John acquiesced to the Magna Carta, the English tradition of property rights has led to a modern world where nearly any person can enjoy the ownership of property. However, over just the last century in our country, a troubling trend of growing government authority in our lives has placed property rights under direct and sustained attack. From asset forfeiture to the expanded use of eminent domain, and even to zoning regulations, property rights have waned over the last century.
One large defeat for property owners came at the hands of the Supreme Court in the 1926 case of Village of Euclid v. Ambler Realty Co. which upheld a zoning regulation as a constitutionally reasonable extension of a city’s regulatory “police power.” In a seemingly uncharacteristic decision, chief justice of the court George Sutherland, a Utahn, delivered the majority opinion after first calling for re-argument of the case and subsequently changing his mind to support the zoning ordinance. Justice Sutherland saw the case as an extension of the concept of nuisance law to the modern challenges of urban development. The court ruled that zoning regulations did not constitute a property taking for which the government was required to pay just compensation. Since this decision, zoning regulations have taken off across the country and it seems municipal restrictions on property rights have swollen unfettered.
The basic difference between nuisance law and zoning is that zoning pre-supposes certain restricted land uses as an inherent nuisance and thus completely disallows them within the applicable zone, whereas traditional nuisances are decided on a case by case basis and are situationally subjective. While the principles of nuisance law are important to preserving the property rights of those who’s quiet enjoyment is encroached upon by a neighbor, the blanket approach of zoning and land use restrictions can be problematic. In modern municipalities, zoning restrictions seem to prohibit land uses that seem benign or arguably reasonable. It is worth noting that many of these restrictions have come from the lobbying of real estate developers who want to ensure higher returns from subdivision development by using government force to ensure a certain neighborhood feel. Such efforts are best left to private contract through the use of deed restrictions—not city hall. While some zoning regulations may seem necessary for a fast growing urban center, it is odd that a suburb like Springville, Utah, would not allow someone to raise a few chickens in their backyard without its blessing.
In the case of chickens in Springville, the regulation prohibiting residential chickens started in the 1950s—soon after the federal government actually issued a recommendation that every family should own two chickens per household member for self sufficiency as a “patriotic duty.” It is unclear exactly what prompted the Springville regulation in the first place but, according to some public comments, not a single nuisance complaint to code enforcement over recent years was related to hen ownership. While an opponent of residential chickens warned the council that the sky was falling (or at least that the rodents would be descending) any other opposition to chickens must have flown the coop since the public comments were 24-1 in favor of the ordinance to allow backyard hens. Arguments for chickens ranged from the basic health and economic benefits of food independence to the fun family educational experience of raising chickens. Many also emphasized the fundamental issue of freedom. In a recent article, Luann Hawker, a supporter of the chicken ordinance who also spoke at the council meeting, said “unless there is a compelling reason to deny a freedom, it should not be denied.”
This is a point that cannot be overemphasized; while the specific subject in Springville last night was chicken ownership, the underlying more fundamental point is property rights. All individuals, including those in Springville, have the natural right to use their property in a way they desire provided doing so does not violate the rights of those around them.
As Locke explained, the purpose of government is to protect property rights—not violate or illegitimately restrict them. Springville’s slight loosening of the law last night only grants this property right after compliance with a variety of regulations, including paying a fee and obtaining a government permission slip. While we commend Springville officials for finally taking this step, we encourage residents to assert their property rights and oppose regulations that make their exercise conditional upon the government’s approval.