EVERYTHING IS ILLEGAL UNLESS IT’S SPECIFICALLY ALLOWED, SAYS COLUMBIANA, OHIO CITY ATTORNEY
JUNE 9, 2017
By Leo Pusateri
The Columbiana, Ohio City Council rescheduled a public hearing on a proposed ordinance “allowing” residents to maintain residential gardens on their property.
The Columbiana, Ohio City Council rescheduled a public hearing on a proposed ordinance “allowing” residents to maintain residential gardens on their property, after the city government’s attorney told reporters anything not explicitly permitted by ordinances, such as gardening within city limits, was prohibited.
On May 9, municipal attorney Daniel Blasdell told reporters from the Salem News the City Council was considering imposing an ordinance to regulate gardening, because it was currently prohibited in the city.
“Right now, if there is not something expressly in this code that says that you can have [a garden], you technically can’t,” Blasdell said. “The intention of it is to not to take away; it is to give.”
The hearing on the proposed ordinance was originally scheduled to take place on June 6, but it was rescheduled to June 23 to allow more time to notify residents.
‘Fundamental Fairness Question’
Daniel Dew, a criminal justice fellow at the Buckeye Institute, says the presumption every activity is illegal unless government explicitly allows conflicts with the constitutional right to due process.
“There is a fundamental fairness question here that can be tied to due process,” Dew said. “Due process requires government to inform the public of what is illegal. Reading the zoning regulations would not tell you that having a garden is prohibited. In fact, other than space and the types of businesses that can be in residential areas, the code is pretty much silent.”
Permission by Default
Actions should be considered legal unless they are specifically made illegal, Dew says.
“We do not have secret laws in the United States,” Dew said. “This is not the Soviet Union. Is having grass prohibited? How about mulch? Lawn gnomes? What about a flower garden? None of these things are listed as acceptable in the code. It seems that this interpretation allows the city to decide what is prohibited on a case-by-case basis.”
Uncommon Legal Notion
Ryan McMaken, an editor with The Mises Institute and a former economist for the Colorado Division of Housing, says the opinion given by the Columbiana municipal attorney ignores centuries of legal theory and practice.
“Certainly, this notion, if put forward as a legal principle, runs contrary to virtually all of the English common law, which is highly influential in American law,” McMaken said. “That system of law took custom and habit seriously and assumed that legal intervention was only to be necessary when a true violation of property rights was evident. To say that everything is illegal unless it’s explicitly illegal is not only odd but also contrary to what most people would consider to be both good law and common sense.”