Agenda - Planning Commission - 08/04/1998

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z.g. June 25, 1998 -- Page 7 Emus were members of the Aves class, and were second in size only to the ostrich -- weighing more than 100 pounds at maturity. The town ordered the Phillipses to remove their emus. The Phillipses refused, and the town brought criminal charges against them for keeping emus in violation of the ordinance. The Phillipses responded by suing the town. They asked the court to declare that the ordinance was invalid, while the town asked the court to declare the ordinance's validity. It suspended its criminal complaint pending the outcome of the Phillipses' lawsuit. The Phillipses argued the town couldn't prohibit a lawful business that wasn't a nuisance. They claimed state law required the town to determine that an activity posed a public threat before it could regulate that activity under its police power. They said that because their emu farm was a lawful business and wasn't a nuisance or a threat, the town had no authority to prohibit it. Accord- ing to the Phillipses, the town could regulate lawful businesses that weren't nuisances, but it couldn't prohibit them. The Phillipses also claimed that even if the town could prohibit lawful businesses, the town abused its police powers because it prohibited uses based on profit. They pointed out that the ordinance prohibited the keeping of birds for commercial purposes, but allowed residents to keep the same number or even greater numbers of birds for personal use. According to the Phillipses, the town could have achieved its goals through zoning ordinances, numerical restrictions, minimum property sizes, or concentration limits. The court granted the town's motion for judgment without a trial, finding the town's ordinance was valid. The Phillipses appealed. DECISION: Affirmed. The ordinance was valid. The town didn't have to find an activity threatened the public safety before it regulated the activity the mere possibility of a public harm was enough for the town to use its police powers. The town didn't have to limit its powers to supPressing activities that were nuisances per se; it could also pass regulations to prevent nuisances. The issue wasn't whether the ordinance treated similar activities -- like keeping birds for commercial versus private use ... differently, but rather that the town had a rational basis for the difference. Here, the town could reasonably have concluded that a farmer who kept a small number of emus for commercial purpose would expand his or her business as it prospered. Keep- ing birds for private use would have a less harmful effect on the public because there would be no financial incentive to expand. It didn't matter that the town could have written its ordinance with greater precision or could have accomplished its goal by using numerical restrictions, minimum property sizes, or other methods. The issue was whether the ordinance was rational, and it was.