“Local control” has long been treated as the catchphrase of local government. It’s not a bad motto to live by, generally, but consider that local control can be even more local than the municipal or county government.
The individual and the family are the most local entities that exist. Individuals are empowered with control over themselves when they are free from unreasonable restrictions. You can guarantee your constituents the most control over their lives by pursuing the goal of local responsibility, not necessarily local control.
It is a sentiment often attributed to Thomas Jefferson that “that government is best which governs least.”
The job of a local government is to facilitate necessary services and infrastructure as smoothly and efficiently as possible.
As an elected official, your input in and control over the day-to-day lives of your constituents should be kept to a minimum. Your governance should not keep people from going about their lives as they please, so long as they are not harming others.
Simply put, any restrictions on local liberties should be narrowly tailored to protect public health and safety. Your efforts should be focused on handling scenarios that pose a significant, specific, and articulable threat to residents.
In an attempt to be proactive, some elected officials enact ordinances to manage theoretical or hypothetical scenarios that would constitute, at most, a marginal impact. The problem is that while these policies cast a wide net in order to address a vague problem, they can also lead to heavily restrictive and unnecessary laws, and produce a disproportionately negative impact on those affected.
It’s no surprise that this happens because individual rights can be difficult to prioritize, especially when balancing the competing concerns of the community. During your time as an elected official, people will do things that you don’t like or agree with. However, the activities that you regulate should be limited to those that cause specific and articulable harm to an identifiable victim. If no harm is done, why regulate?
In the short term, your constituents may not be concerned with the protection of individual liberties. Regardless, we urge you to safeguard these rights by focusing efforts on mitigating actual harms and shying away from restricting rights. The short-term gratification from a certain political decision and its outcome is not justification to negatively impede the long-term exercise of one’s rights.
Ends don’t justify means.
This suggestion might elicit concern that it is much more difficult to create and enforce particularized ordinances than it is to make broad, sweeping policies that address even the potential for harm. This is absolutely true. It is difficult work to protect rights that would be easier to ignore in pursuit of administrative convenience.
As a local elected official, you are tasked with the difficult job of balancing the safety and well-being of a community with the principles of freedom and self-governance. This is not easy. The answers are not all black-and-white. That’s the kind of difficult work and exceptional decision-making that we, and your constituents, expect from you. To aid you in this process, we want to provide some helpful insights and resources.
In the following pages you will find a discussion on common obstacles faced when it comes to striking a balance between individual responsibility and community peace. This is by no means an exhaustive list. We have included some of the issues that you will most likely encounter during your time as an elected official.
“All power is inherent in the people.” —Thomas Jefferson
Localities and school districts will sometimes struggle to deal with young people who are not attending school and are, instead, loitering or spending time in public places during the day.
One Common Approach: Unreasonably Restrictive Paternalism
In an attempt to combat these occasional issues, some cities impose a daytime curfew for juveniles. Daytime curfews are local laws which establish that if a juvenile is in a public place during school hours, they can be detained by law enforcement.
The problem is, this gives authorities the presumptive power to stop or detain any juvenile, despite otherwise lawful behavior, because of a suspicion that the child may be subject to state compulsory education laws.
While these laws are ostensibly designed to curb juvenile crime and punish habitually absent students, they are misguided. School attendance is an issue that should be managed by parents and school administrators, and should not form the basis for action by the government against its residents. Police should not be bothered with babysitting children.
Imagine if local governments mandated more of these issues. Should you be legally requiring minors to brush their teeth? Should you mandate that children do their chores each day? Dental hygiene and family productivity are certainly good for society, and you might choose to use your influence to encourage such behavior, but that is a very different thing than using the law to criminalize those who do not sufficiently comply.
Requirements and restrictions for such minor issues instigate more low-priority altercations between police officers and residents, creating the potential for physical conflict stemming from an issue better dealt with privately.
A Better Way: Leave Parenting to Parents
Instead of implementing a policy like this (or leaving existing such policies on the books from decades past), limit the number of personal affairs that your jurisdiction is involved in. This suggestion may seem concerning at first glance. You may worry that there will be an influx of crime and school absences if these laws are taken off the books. This concern is understandable, but fortunately, it is unsubstantiated.
In fact, over 43 of Utah’s most populous cities have no daytime curfew code on the books. Notice, those cities have not faced hordes of marauding children during the day. They don’t have irregularly high rates of crime. In fact, they seem to have managed just fine.
This type of policy is especially problematic in light of the fact that plenty of children are not required to be in school during the day. Utah has a very generous homeschooling law covering tens of thousands of students statewide, to say nothing of those in dual enrollment or private, charter, and online schools that create schedule flexibility which might allow for free time during the day for minors.
Daytime curfews are, therefore, archaic and unnecessary, a byproduct of a past time when all children were presumed to be on a school campus without exception. Similar curfews have even been declared unconstitutional in Washington state.
Leave parenting to the parents, get ahead of the curve, and abolish daytime curfews.
“All power is inherent in the people.”—Thomas Jefferson
There are many activities in your community that might impact others, are potentially dangerous, or that you might want to be aware of. This creates a problem. How do you ensure that potentially dangerous activities don’t happen without your approval?
One Common Approach: A Protracted Process
To address this problem, many local governments institute permitting processes. These processes can govern anything from fireworks sales to home projects. While not prohibited outright, many activities have become heavily regulated by local governments via a permit requirement. In some cases, this makes sense. You obviously don’t want residents engaged in something that could be harmful to other people or property.
The problem is that these processes can quickly become burdensome to those involved and even overwhelming to administer and enforce. When this happens, it can become difficult for your constituents to keep track of what activities do and do not require permits. Despite their best efforts, otherwise law-abiding citizens may find themselves violating local law — criminals for not complying with a permission slip requirement.
The application process alone can become backlogged and unorganized. Someone might apply for a permit and not hear for months or years if a decision was made. Someone could apply for a permit without fully understanding the requirements and expectations. Even worse, a person might apply for a permit, be rejected, and be left with no further opportunities to pursue a reasonable activity.
These situations stifle growth, innovation, and the exercise of one’s basic rights. They leave your neighbors frustrated and confused. Perhaps most concerning, they leave your local government potentially at risk for legal troubles.
A Better Way: Clear and Simple
Limit activities that require government permission as much as possible. Permits should be required only when the action, if gone unsupervised, will likely cause significant harm. When you must require a permit for something, the process should be understandable, fair, and prompt. The criteria for obtaining a permit should be clear and simple. Policies that grant permits based on subjective standards like “good cause” or “reasonable qualifications” are unfair to applicants and confusing to staff.
Applications should have specific requirements so that applicants know what goal posts must be met and employees do not accidentally move those goal posts. Permit processes should have a clear deadline by which decisions will be made on permit applications. In Minnesota, for example, state law governs local permitting processes and requires that a decision be made and explained within 60 days of receiving a complete application.
Such state law does not presently exist in Utah, but you should set your own rules governing the decision timeline.
That way, your constituents will know what they can expect and your employees will know what standards must be met.
If rejected applicants feel that a decision was unfair, an appeal process should be available, during which applicants may obtain a second opinion via judicial review. If a government entity has the first and final say on permit decisions, constituents may feel they are in a losing battle. That perception will not foster public trust and confidence.
If your permit processes meet these requirements, decisions can be made quickly and fairly. You should also be on the lookout for other opportunities to streamline and simplify your permitting processes (in addition to considering whether some permits should not be required at all, at least in some circumstances).
Cedar Hills set a great example when, at the start of 2021, they began accepting building permits digitally. Better processes will leave your agency with a lighter load, and citizens will leave with a positive impression of your leadership.
Utah has increasingly become a tourist destination for visitors and in-state travelers alike. This has led to some creative approaches to tourist housing, including short-term rentals. Short-term rentals are properties or portions of a property that are rented out for a period of less than 30 days at a time.
These innovative housing prospects give travelers more options and bring tourists to parts of Utah that might not otherwise enjoy the benefits of the industry. However, they can also pose a problem for local governments: with more people comes more noise, traffic, and possibly even crime.
One Common Approach: Blanket Restrictions to Avoid Potential Problematic Behaviors
The potential harms of this innovative use of property have seemingly scared some local governments. In an attempt to combat these potential harms, many local governments have taken a broad approach and strictly prohibited any and all short-term rentals.
The concerns brought about by short-term rentals can be legitimate — excessive noise, parking issues, traffic congestion, and unruly garbage can all threaten the peaceful use and value of others’ property — but an outright prohibition on short-term rentals is bad policy.
The problems with short-term rentals are not innate. Your neighbor might have their grandparents come stay with them for the weekend; would that be a problem? What if those grandparents compensate the family with homemade brownies or cash? Is it a problem now? No.
Being compensated for a temporary stay does not justify city intervention and regulation. The problem with short-term rentals are, of course, the potential nuisances they might actually cause.
And clearly, the nuisances brought about by short-term rentals would be harmful regardless of whether they were caused by short-term renters, long-term renters, permanent residents, or anyone else. Those issues should be dealt with individually, targeting the behavior itself. Simply prohibiting any action that might have negative consequences is not effective governance. To commit to that strategy would just mean outlawing human existence. Humans cause problems. Yours is the opportunity and responsibility to mitigate the harms of those problems while maximizing each individual’s control over their own life and property.
A Better Way: A More Nuanced Approach
Instead of broadly prohibiting an activity that is harmless in and of itself, focus on the harms that could be caused. If you’re concerned about excessive parking, craft ordinances that deal with that issue. If you’re frustrated by noise complaints, enact law that specifically manages that issue.
For example, Springville recently passed a city ordinance that allows Springville residents to operate an owner-occupied short-term rental provided they comply with certain noise restrictions. The ordinance even provides the decibels which may not be exceeded.
While that may sound a bit ridiculous, specific ordinances protect people from broad restrictions that are subjective and therefore able to be unfairly enforced. Springville’s ordinance is not perfect, but it is notable because it addresses a specific nuisance rather than broadly restricting a whole category of activity.
Like your ordinances, your enforcement should be specific and targeted. It is not worthwhile to hunt down short-term rental violations that are not causing actual problems. Instead, you should strategically respond to complaints and actual harms. When you are made aware of issues stemming from ordinance violations, address that specific concern with the property owner. Resist any urge to use a single or small sample of problems as a basis for regulating and restricting the actions of peaceful people who have not caused a problem.
Pets are a staple of single family home ownership, but they can sometimes be problematic. Animals can produce negative impacts including noise, smell, and waste. It’s no surprise, then, that local governments often regulate pet ownership.
One Common Approach: Broad Restrictions
The keeping of pets or animals is often heavily restricted by local governments. In some cities, residents can only have up to four household pets.77 West Valley, Utah, § 23-3-108.
This arbitrary cap is mandated out of an abundance of concern for stray animals, potential nuisances, and violent encounters.
The problem is that such a broad cap on animal ownership presumes that the local government knows what is best for the animal owners within its boundaries. Once again, this approach arbitrarily restricts your residents in an attempt to preempt potential harm (rather than addressing actual harm).
A Better Way: Flexibility in Code
Farmington has a particularly well-built body of code dealing with this issue. Their code separates animals into different sections: small animals, large animals, animals for a commercial purpose, and inherently dangerous animals.
Small animals like dogs and cats are allowed in all parts of the city. Large animals like horses and sheep and animals that are kept for a commercial purpose are allowed in specific parts of the city. Animals that are inherently dangerous are, by default, not allowed to be kept in the city. However, a resident may apply for an exception to this rule.
This ordinance is borne out of a genuine concern for the health and safety of residents. At the same time, it errs on the side of individual responsibility, allowing for broad acceptance of animals that pose no threat and even providing for appropriate exceptions for special cases of animals that might otherwise be considered dangerous.
Operating from a presumption of pet ownership provides residents the ability to exercise their rights responsibly while ensuring that government control is only asserted in circumstances of actual harm for which intervention may be needed.
It would be impossible to make an exhaustive list of ways in which the government interferes in the lives of others. That is not what we have attempted to do. Rather, we have provided a few examples in order to drive home some important considerations that can be applied in any situation.
A community is at its best when the individuals within it are responsible for their own lives and decisions. You can increase and protect this individual responsibility by limiting the government’s involvement in any scenario in which it is unnecessary. This chapter has discussed a few instances where you can likely decrease government involvement and principles which can help guide you in that process. But these principles can and should be applied to a wider range of issues impacting your neighbors.
Here are the key takeaways:
- Individuals are as local as it gets — give them as much responsibility as you can.
- Your local ordinances should be targeted to specific harms that you can prevent.
- Broadly preempting any potential harm will likely lead to overly restrictive regulations.
- Protecting individual responsibility while managing a community is a difficult task.