Matt Evans: Fargo Land Development Code Is Insidious

Do you really own your property?  What limits should the city place on your hobbies and your profession?

About a month ago, Valley News Live reported on the story of the Royce family in Fargo that had received a notice indicating that they could no longer keep 2 chickens in their backyard.

The Royce’s were confused, because they carefully studied what they thought was the applicable law, and found no general prohibition on chickens.  In fact, they found the specific rules governing chickens kept in the city.  This can be found in section 12-03 of the Fargo City Ordinances.

The ordinances define what conditions would constitute a “nuisance” from fowl and other certain types of animals, generally prohibits letting livestock run freely in the streets, and is a pretty reasonable piece of law.

My family also kept laying hens in our backyard when we lived in downtown Fargo.   The neighbors seemed to enjoy the occasional eggs, and we complied with all of the relevant portions of Section 12.  There are more people in urban areas keeping chickens then you might think, and a quick web search shows that the issue has come up in West Fargo, Moorhead, and several other nearby towns in the last decade.

Urban chicken keeping is popular these days, and according to Fargo animal control law, is perfectly legal.

What we didn’t know, and what the Royce’s didn’t know, is that the Fargo Animal Ordinances apparently do not comprise the entirety of applicable city law for property owners in Fargo.

Enter the Fargo Land Development Codes.  You can read them here.

These are codified as article 20 of the Fargo City Ordinances.

Unlike the Animal ordinances, which were adopted back in the 1950s, the Land Development Code was first adopted in 1998 and has been revised considerably since.

It is under the land development code zoning and permitted uses rulemaking authority that the Royce’s were found to be in violation of city law.

Basically, the LDC places limitations on what private property owners can do with their property.  You may have heard of “zoning” before; zoning is a large input into the LDC.

The city’s complaint against the Royce’s contends that because they are not zoned as an agricultural property, that they may not keep chickens on their property.

The problem with this claim is that nothing in the LDC supports it.  In fact, the word “chicken” does not appear anywhere in the LDC.

The word “fowl”, which is a general term used for all types of birds, only appears in the code once, and only in reference to animal breeding operations.  Clearly, having 2 chickens in your back yard is not a breeding operation.  In fact, because the animal code prohibits animal nuisances, and nuisances include noise, people who keep backyard chickens in urban settings almost never have roosters, only hens.

I’ll connect the dots for those of you who have forgotten their chicken biology: someone with no roosters is, by definition, not running a chicken breeding operation.

Continuing, the word “animal” appears in the 222 page LDC document only in reference to keeping horses (which are allowed in some zones), animal confinement operations, dog grooming, and pet boarding services.

Strangely, the LDC specifically allows for kennels and boarding services in non-agriculturally zoned properties, and for horses in some zones, provided that the manure is managed appropriately.  Having a pair of chickens in your backyard is considerably less impactful on grass, noise, neighbors, odors, and any other conceivable public interest, than running a pet grooming business, running a pet kennel, or keeping horses – all of which the LDC allows outside of agricultural zones.

Furthermore, both the animal code and the LDC have never been construed as a prohibition on pets, nor on pets that spend some or all of their time in backyards.  Pets are a specifically allowed use for residential properties (although, the fact that the LDC needs to call out that “pet ownership is a permitted use” shows just how invasive the LDC is into our personal lives)

While it’s not something I’m interested in, there are people who keep chickens as pets, in the most traditional sense of the word.  These are chickens that live indoors (and wear diapers to manage their excrement) and sit in peoples laps.  Clearly, if there is an example of an animal being kept as a pet, the LDC would not exclude such a use.  It would seem that even if the LDC made a solid case that chickens were disallowed as an agricultural or livestock operation, someone wishing to keep them as pets should be allowed to do so.

Additionally, the LDC also allows for a conditional permitted use or a code variance on a case by case basis.  So it is unclear why the city would attempt to evict the chickens from the property instead of suggesting that the Royce family apply for a variance.

The worst kinds of laws are the laws that are in conflict with each other; they are little known and only enforced selectively.  There’s no point in having an animal code that describes how you may keep chickens, if unelected folks working for the city are just going to interpret the LDC to mean whatever they want it to mean on a particular day for a particular victim.

The LDC has been revised well over 50 times between its introduction in 1998 and the last noted change, in 2009.  Do you remember voting on these changes?  Do you remember hearing them debated or discussed?  I don’t.  Yet how the LDC is interpreted can control nearly every aspect of how we use our home property – and as such, how we live our lives.  In some neighborhoods, the LDC controls what types of shutters, siding, and windows you can put on your house.

On the topic of backdoor legislation, as I was researching the status of chickens in the LDC for this article, I came across something else interesting.

The LDC also specifies what types of businesses can and cannot be run out of a residence.  On one hand, this seems reasonable.  Many people would prefer that strip clubs not be run out of suburban homes.  The LDC spends much time addressing precisely where adult businesses can and cannot exist.

However, the LDC doesn’t proscribe a general prohibition on home based businesses.  It has reasonable rules about parking and hours of operation that would apply to any home-based businesses.  Instead, it identifies some specific categories of business that are prohibited, not by public vote, but by declaration of the city planners.

One of those categories is firearms and ammunition.

The City of Fargo LDC does not allow someone to run a home based business dealing with firearms or ammunition – even if they comply with all of the other regulations.  Section 20-0403.c.5e specifically prohibits selling firearms or ammunition out of the home.

The federal government has no problem with you running a gun business out of your house.  There are numerous Americans who do this, all with federal government blessing.  There are people in North Dakota who do this.  If this were a problem, we’d have heard about it, right?

So why does the city of Fargo prohibit it?  Do the residents of Fargo really prohibit this, or is there the hand of an activist city planner at work here?

Property zoning is currently the reality in much (but not all!) of urban America.  Many people will agree with some of the outcomes of zoning – like limiting where adult businesses can be placed – but this doesn’t mean we should treat zoning with any less skepticism than we do other appendages of government.

Instead, because of the pervasive reach and murky applicability of zoning laws, we ought to pay them special attention, and seek to hold the public officials that propose, approve, and enforce zoning changes accountable for their misdeeds.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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