Full Title Name:  Overview of Pet Number Restrictions in Municipal Ordinances

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Rebecca F. Wisch Place of Publication:  Michigan State University College of Law Publish Year:  2004 Primary Citation:  Michigan State University College of Law

This legal discussion overviews the typical elements in municipal ordinances that restrict the number of pets a person can own. It analyzes the relevant cases and provides examples ordinances that limit the number of dogs a person can own. Both nuisance regulations and zoning regulations are discussed, as well as the broad police powers municipalities enjoy.

I. Introduction on Ordinances Regulating the Number of Pets

How many is too many dogs?   Who says how many cats you are allowed to keep?   If a person has the space, time, and money to keep many pets, why should he or she be restricted?   And, if a person is deemed to own too many pets, who decides when to take them away?   What if those pets are like family?

On the other side of the coin, one may ask what can I do about the noise of the neighbor’s twelve barking dogs?   How do we control the smell from the house that has forty-eight cats?   Don’t I have a right to protect my property value?  

As the saying goes, there are two sides to every story.   The regulation of pet ownership by a municipality (a city, town, or other incorporated area) theoretically attempts to reconcile the sometimes conflicting interests of pet owners and property owners.   In fact, pet restrictions are some of the most common exercises of municipal authority.   More and more municipalities are enacting regulations on the number and type of animals a person can keep on his or her property.  

Proponents of pet-number restrictions argue that such measures recognize the inherent rights of property ownership, such as quietude and freedom from nuisance (smells from increased pet excrement, barking, property damage from marauding pets, etc.).   Indeed, recent reports of increased dog bites and maulings have made pet restrictions increasingly more popular.   Pet owners claim that such restrictions do not necessarily have an impact on the control of nuisances or the safety of people, since it only takes one dog to bite and one dog barking may be just as annoying as several dogs.   Some contend that these restrictions affect the legitimate breeding and training of show dogs as well as dog rescue facilities.   In 1999 in Rideland , South Carolina , pet owners helped nix a municipal plan to limit pet ownership to only two dogs, after a number of concerned pet owners appeared at the City Council meeting.   Savannah Morning News (electronic version), “Council muzzles dog limit ordinance,” Feb. 5, 1999 ( http://www.savannahmorningnews.com/stories/020599/CMNdogs.html ).   The article noted that objections to the restriction came from as far away as Azores Islands off the coast of Africa .   Id.  

It is evident that the limitation on the number of pets one can own seems to strike at the heart of basic property rights and government control over those rights.   In an article on a proposed two-dog limitation change to an existing Enoch , Utah ordinance, residents (some of whom did not even own dogs) balked at this form of government intrusion.   One man quoted for the article stated: "This is just the beginning," said Joe Marshall, an Enoch resident. "Next they are going to tell you how many horses you can have and how many kids."    The Sprectrum.com , July 17, 2003 , “Enoch proposed pet, animal ordinance unpopular,” by Elizabeth Miller.   ( http://www.thespectrum.com/news/stories/20030717/localnews/591099.html ).

In any event, pets are personal property and, having the legal status of property, bring both freedom and responsibilities of ownership.   This overview seeks to outline the most common restrictions on the number of pets one is allowed to own by exploring restrictions based on sheer number of pets, the type of dwelling in which the owner resides, nuisance regulations, and criminal penalties stemming from ordinance violations.   In doing so, the relevant caselaw seems to generally show one truth:   the power to regulate aspects of pet ownership has only one real constraint; that of popular opinion.


II. Municipal Police Power: Inherent Authority to Regulate

Courts have noted that the regulation of animals has a long-standing history of constitutionality. See , State v. Peters , 534 So.2d 760 (Fla. 3d DCA 1988), rev. denied 542 So.2d 1334 (Fla.1989); Sentell v. New Orleans & Carrollton R.R. Co. , 166 U.S. 698, 17 S.Ct. 693, 41 L.Ed. 1169 (1897); Nicchia v. New York , 254 U.S. 228, 41 S.Ct. 103, 65 L.Ed. 235 (1920).   This stems from the property status of animals under our legal system.   There is a legitimate need to regulate all aspects of animal ownership.   State and local government units have the power to regulate matters that concern the health, safety, and general welfare of their citizens.   This power, often termed the “police power,” has been upheld with regard to most matters concerning pets.   (For more police power and local laws affecting dogs, generally, click here ).  

Pet limitation ordinances fall squarely within this legitimate exercise of police power.   In an early case, the New Jersey Supreme Court upheld a borough ordinance that limited the number of licensed dogs one could own to three.   On appeal, a woman who apparently owned up to 39 dogs summarily challenged the ordinance as unreasonable.   The court, however, found that, “[r]easonableness of an ordinance is ordinarily a question of fact. No facts have here been presented to establish that the ordinance is not reasonable and we cannot say that it is unreasonable upon its face when there is nothing to show the conditions that prevail in this particular municipality.”   State v. Beckert , 61 A.2d 213 (N.J.Sup. 1948).   Thus, one challenging such an ordinance has a high burden to meet, even in the absence of any showing that such an ordinance was necessary.

Challenges that strike at the basic validity of a municipality to regulate the number of dogs one can own invariably fail.   As noted in the previous discussion on municipal police powers, court defer to any legislative language that evinces an intent to give municipalities authority to regulate animals.   This intent of local units to regulate animals is broadly construed.   For instance, in Village of Carpentersville v. Fiala , 425 N.E.2d 33 (Ill.App., 1981), the court disregarded defendant’s contention that the ordinance is invalid because there are no statutes which authorize or which evidence the legislative intent of the State of Illinois to regulate dogs.   Under the Illinois Municipal Code, a municipality may enact any ordinance that it deems necessary for the promotion of health or the suppression of diseases. (Ill.Rev.Stat.1979, ch. 24, pars. 1-2-1 , 11-20-5 .) A municipality may also "pass and enforce all necessary police ordinances" (Ill.Rev.Stat.1979, ch. 24, par. 11-1-1 ), and may "define, prevent, and abate nuisances."   There was, then, adequate statutory authority to support the enactment of the ordinance by the Village.

The only real limitation on this power was noted in Village of Carpentersville . “To be a valid exercise of police power, the legislation must bear a reasonable relationship to the public health, safety, morals, general welfare or convenience, and the means adopted must constitute a reasonable method to accomplish such objectives.” [Emphasis added]   Id.   In essence, there must be some rational relationship between the ends articulated under the ordinance and the operation of the ordinance.   This is a low standard that generally only requires the barest showing of connectedness to the stated goals.   A simple statement that such an ordinance advances the goals of health, safety, and welfare generally suffices.

So what showing must a city make to prove the ordinance has a rational relationship to the preservation of the legitimate goals of health, safety, and welfare of the community?   In People v. Yeo , 103 Mich.App. 418, 302 N.W.2d 883 (1981), lv. den. 412 Mich. 931 (1982).103 Mich.App. 421, 302 N.W.2d 883, the court observed that a restriction on dog ownership to only two dogs was supported by the city’s claim that such a restriction protected the potential detriment that could result from an “overabundance” of dogs in residential areas.   Id.   Indeed, “[d]efendant's argument that conscientious dog owners would not pose such problems to a residential community does not meet this conclusion. The township's limited incursion on defendant's already qualified property right does not appear unreasonable . . ." 103 Mich.App. 423-424, 302 N.W.2d 883.

Finally, it should be noted that such legislative enactments by municipalities are presumed constitutional.   In People v. Strobridge , 339 N.W.2d 531, 127 Mich.App. 705 (Mich.App. 1983), the defendant argued that the trial court erred in ruling that the ordinance was a constitutional exercise of the city's police power.

The full and free use and enjoyment of one's property is a right which may not be restricted by government without due process of law. A property owner's right to such unrestricted use is, however, subject to reasonable regulation by the state in the legitimate exercise of its police powers . . . Finally, we note the oft-applied rule that legislative enactments are cloaked with a presumption of constitutionality absent a contrary showing by competent evidence or facial invalidity.  

Id.   Plaintiffs challenging regulatory ordinances face an uphill battle when challenging their validity.   These ordinances can take any number of forms, but generally establish firm restrictions on ownership.   When dealing with municipal ordinances, the municipalities are presumed to be familiar with local conditions and know the needs of the community and, therefore, a court will not substitute its judgment for legislative discretion absent a clear and palpable abuse of power.”   Zageris v. Whitehall , 594 N.E.2d 129, (Ohio App. 10 Dist.,1991).   No recent decision on pet number restrictions seems to rise to this level of abuse of power, however, and it seems evidence may be difficult to obtain or prove.


III. Restrictions Based on Number

The most common articulation of a pet ownership limitation appears a numerical restriction on the number of pets one can own.   The City of Sausalito, California gives a typical example of a restriction based on number:

6.04.116 Limitation on number of dogs. Except as provided in Section 6.04.114, it is unlawful for any person to keep or harbor more than three dogs which are over the age of four months on any lot, premises, dwelling, building, structure, boat or living accommodation.    Chapter 6.04 of the Municipal Code.  


Similarly, the City of Roeland Park, Kansas has proposed restrictions on both the number of cats and dogs to its existing ordinances:


(a) No person or household shall own or harbor more than two dogs of six months of age or older or more than one litter of pups, or more than two cats of more than six months of age or more than one litter of kittens, or engage in the commercial business of breeding, buying selling, trading, training, or boarding cats or dogs or both cats and dogs, without having obtained a special permit from the governing body. The fee for such special permit, or any renewal thereof, shall be $100. Those persons who have received governing body approval to keep more than two dogs or more than two cats prior to the effective date of this ordinance shall be exempt from the requirement to pay such special permit fee, or any renewal thereof; provided, however, that this exemption shall no longer apply if a special permit is suspended or revoked as hereinafter provided.


If challenged, these ordinances typically survive judicial scrutiny.   However, as noted in the introduction, challenges more often arise before the ordinances are adopted or amended.   Pet owners may ask why is two dogs any different than three dogs in terms of interference with other residents enjoyment of their property?   And, what about issues o f breeding and offspring – who decides which animals stay and which may get forfeited to animal pounds where they face possible euthanasia?   It is clear from a reading of the case law that a municipality “is not required to show affirmatively it enacted an ordinance based on empirical, factual evidence; rather, the party challenging the ordinance must demonstrate that there is no rational relationship between the ordinance and a health or safety goal of the community.”   State v. Schuler , 1997 WL 76337 Minn.App., 1997 (unpublished opinion).   In Schuler , for example, the court upheld an ordinance that limited the number of dogs and cats one can own at a residence as a valid exercise of police power.   The court found that Schuler failed to offer evidence that regulating the number of dogs per household was unrelated to the public welfare, as controlling the problems of dog noise and odor affected the health and general welfare of the community.   Id.    In essence, the burden rests on the party challenging the ordinance, regardless of an owner’s situation.  


IV. Ordinances Distinguishing Type of Residence

Ordinances can also restrict the number of dogs or cats one can own based in part on whether the property is single-family or multi-family.  In Village of Carpertersville , 425 N.E.2d 33, defendant was charged in the village ordinance code prohibiting the ownership of more than two dogs in a single family residence.  

The ordinance in question, Section 15-23 of the Village Code provides:

'No person shall permit more than two dogs to be or remain in or about any single-family residence, building or lot, or more than one dog in any single- family unit in any multiple housing building within the Village under his control at any one time. This section applies only to dogs required to be licensed under this Article or to dogs over the age of three months.'  

Defendant raised an equal protection challenge to the ordinance based on the distinguishing of single-family residences and single-family units within a multiple housing building.   He specifically contended that such a classification was arbitrary, capricious and a denial of equal protection of the law.   In denying his constitutional claim, the court observed that since no suspect classification was at issue, the city need only establish a reasonable relationship between the measure and its asserted goals.   Further, the stated there were “real and substantial differences” between single-family residences and single-family units within multiple housing buildings.   The allowance of two dogs in more open, separated living areas (single-family residences) and fewer than two dogs in more congested, densely concentrated living areas (single-family units in multiple housing buildings) is a difference which was rationally related, according to the court, and were, therefore, not violative of equal protection.  Id.  

These differences include, but are not limited to, considerations of indoor and outdoor space, density and proximity to others, noise levels, and structural differences. The evident purpose of the ordinance is to promote interests of health, safety, general welfare and comfort with an ounce of prevention rather than a pound of cure.   

  Id.   Further, the court stated in dicta that a justification rests in the fact that, “[s]ingle-family residences are characteristically owned by the persons residing therein, whereas units in multiple housing buildings are generally rented by occupants who may have somewhat of a less compelling interest in the use and upkeep of the premises than an owner might.”   Id.   Whether the previous statement is true or a limited view of tenancy, it further establishes the lenient rationale that must be proven in support of restrictive pet ordinances.  


V. Number vs Size

Ordinances regulating pet ownership usually regulate based on numerical criteria.   An ordinance that chooses to limit the number of pets to a certain number (i.e., three dogs per household) will be generally upheld even if it fails to distinguish dogs based on other factors (i.e., size or weight).   As noted in one case,      

. . . the city's ordinance limiting each residence to three dogs and three cats is not unreasonable in light of the potential detriment to public health, safety and general welfare because of an overabundance of animals in a residential area. We further find that the constitution does not require a case specific classification such as type of dog, size of dog, or size of residence. The difficulty in enforcing such an ordinance would, in effect, render the ordinance meaningless.  

  Gates v. City of Sanford , 566 So.2d 47, (Fla.App. 5 Dist. 1990) 15 Fla. L.

In contrast, municipal restrictions that attempt to regulate based on specific attributes of pets rather than objective numbers may face difficulty.   In City of Marion v. Schoenwald , 631 N.W.2d 213 (S.D.,2001), the City of Marion passed an ordinance that limited households to four dogs, only two of which could weigh over 25 pounds. Initially, when the ordinance was challenged at the trial court level, the weight restriction was struck down. On appeal, however, the Court found that such a restriction could be upheld simply because South Dakota law permits municipalities broad power to regulate the keeping of dogs, and thus the weight limitation included in the City's comprehensive pet ordinance was within its authority.

The impetus behind the ordinance was concerned over problems specifically associated with "large dogs,” such as a greater potential to kill, injure, and intimidate as well as a concern that such dogs when housed together may develop a "pack mentality,” increasing their lethality. This was in addition to the City’s concerns that larger dog equal excessive dog feces, creating unsanitary conditions and foul odors.   Diane Schoenwald and her family resided in Marion and owned three dogs: one shepherd-collie mix weighing 75 pounds and two golden retrievers weighing 30 pounds and 20 pounds.  The city cited her for the violation and requested that she remove one of the dogs; she refused and the instant action arose. 

While the court noted that the City cited no instance where a similar weight restriction for dogs was upheld, nor did it refer to any animal science authority or veterinary directive to support a weight threshold for household pets, this was unnecessary.   “Empirical evidence, of course, is not required to sustain an ordinance.”   Id.   However, the court did opine that the weight limit “creates an unproven distinction between large and small dogs. . . Weight is a mutable attribute. For some pets, compliance with the ordinance may fluctuate, depending on health, diet, and age.”   Id.

Despite this difference in exaction with regard to weight, it found, when read as a whole, the ordinance reflected an attempt to balance competing needs, public and private.   Further, while the court noted those difficulties with imposing a weight restriction, it also observed that general distinction would be less definite.   “If the City had simply limited households to two large dogs and two small ones, the ordinance would lack the requirement of definiteness. Distinctions between large and small would be indeterminable.”   Id.   If nothing else, this case seems to underscore the deference courts give to municipal regulation.  Perhaps the only limitation on municipal action is where a municipality words an ordinance such that pet ownership creates a nuisance per se.     


VI. Nuisance Regulation

A review of the relevant caselaw reveals that the only area an owner may strike at a pet limitation ordinance is where the ordinance is couched in nuisance terms.   One case has held that an ordinance that arbitrarily declares a number of animals a nuisance without establishing nuisance conditions has been held to be outside of a municipality’s powers.   In Com. v. Creighton , 639 A.2d 1296 (Pa.Cmwlth.,1994), a resident of the Borough of Carnegie challenged an ordinance limiting the number of cats and/or dogs which a person could keep within the Borough to a total of five (respondent had approximately 25 cats whom she testified were former “mousers” strays from area plants that shut down).   The ordinance was enacted under the powers that permit Boroughs to “(5) [t]o prohibit and remove any nuisance, including but not limited to accumulations of garbage and rubbish . . .” and those affecting “the health, safety, morals, general welfare and cleanliness and the beauty, convenience, comfort and safety of the borough.”   Id.   While the court first noted that “we are concerned here with living animals, rather than with the inert junk involved in most nuisance cases . . . for our purposes here, the critical consideration of whether the regulated activity constitutes a nuisance or is otherwise contrary to the public health, safety or general welfare is as pertinent to living animals as it is to junk materials.”   As ordinances under these provisions are required to affirmatively prove that a nuisance in fact exists, the court invalidated the pet number ordinance because the law did not indicate why more than five cats or dogs constituted a nuisance.   Id.   However, the court went on to analyze the law’s validity under the broad power to regulate the public interest.   In doing so, the court found that the Borough Code also failed to articulate what legitimate public health, safety and welfare goals the Borough sought to advance by enacting this ordinance.   “From the information before us, we simply cannot say whether the Borough ordinance here is a reasonable means to effectuate a legitimate governmental goal.”   Id.

Similarly, a 1950 case considered the applicability of an amendment to an ordinance that essentially outlawed kennels in a Pennsylvania borough.   Ownership of more than six dogs was considered a kennel, and, since kennels were outlawed by the ordinance, it created a de facto limit on the number of dogs one could own.   Commonwealth v. Gardner , 74 Pa. D. & C. 539 (February sessions, 1950) ( Court of Quarter Sessions of Pennsylvania, Montour County ).

The defendant in this case had been conducting a beauty parlor in the residential section of the borough and also maintained a dog kennel for both breeding and boarding purposes. On June 15, 1949 , the plaintiff moved into the residence adjoining the property of defendant, and shortly thereafter, complained to the borough council about the dogs kept and maintained by defendant.   After investigation, the health officer of the borough concluded that the kennels themselves did not constitute a nuisance under the existing ordinance (which addressed only noisy dog and unclean conditions).   Thereupon, on September 2, 1949, after plaintiff’s continued complaints, the borough council amended section 5 of the ordinance above quoted by adding thereto the following:

No dog kennels may be kept in the Borough of Danville, and for the purposes of this Ordinance the keeping of more than six (6) dogs over the age of six (6) months shall be considered the keeping of a dog kennel and shall not be permitted.

The court then considered whether a municipality may, in the exercise of its general police power for the health and welfare of the municipality, fix an arbitrary number of dogs to be a nuisance per se .   While it found that the original ordinance was a proper exercise of the police power, the amendment to the ordinance above quoted, was not provable based on facts at a hearing:  

We do not believe that the borough council or the court has the power or the authority to determine that more than a certain number is a nuisance per se, and less than that number is a nuisance only upon proof of the same being a nuisance. In other words, it is our opinion that the borough council, in the exercise of its police power may not unreasonably and arbitrarily prohibit things which were not nuisances at common law, and their declaration in an ordinance that a thing is a public nuisance does not make it so, if it is not a nuisance in fact . . .

Id.   While the case itself still appears to be good law, an undercurrent in the ruling seems not so much based on questions of municipal police power, but more on curtailing the pursuit of one’s livelihood.   However, the court carefully observed that nuisance is a factual question and establishing a nuisance per se based solely on numbers is a slippery slope.   Indeed,

. . . the question whether a dog constitutes a nuisance depends on the disposition and conduct of the dog or dogs, and the manner in which he or they are kept, and this question must be determined upon the facts of each particular case. Three or four dogs of a bad disposition that bark continually, and kept in an unsanitary way would, no doubt, be a nuisance that could be abated or enjoined, while, on the other hand, seven or eight dogs of a good disposition, that are not inclined to bark, and that are kept in a sanitary condition and do not annoy the neighborhood, might very well be held to be not a nuisance which could be abated or enjoined.

Id.   It may be worthwhile to note that no case seems to rely on this holding.  Rather, the trend has been to give communities wide latitude in addressing what are deemd local issues. 


VII. Criminal Violations/Zoning Ordinance versus Regulatory

Many ordinances provide in their terms that violation results in a criminal violation.   While criminal ordinances are recognized as being within the police power of a municipality, “the exercise of that power through the enactment and enforcement of criminal laws is not without limitations.” Foster v. State , 544 S.E.2d 153, 273 Ga. 555, 1 FCDR 942 (2001).   Following the general maxim of constitutional law that any deprivation of liberty through the criminal process requires a strict construction against the state, such ordinances will be read with their “obvious and natural import of their language.”   Thus, it becomes an issue of what the property owner understood to be the requirements under an ordinance.

Such was the case in Foster .   In that case, the Georgia Supreme Court reversed the defendant’s conviction after the trial court imposed a 12 month suspended sentence and a $130 fine for keeping more than four dogs on a lot less than five acres (defendant had eleven dogs at the time on a normal residential-sized lot).   The ordinance contained a provision that contained an exemption ownership of more than four dogs, provided a permit was obtained.   Defendant was ultimately denied a permit, which did not provide any criteria as to who could obtain a permit.   According to the court, “Foster applied for the permit, which was denied for no reason specified in the statutory provision he is charged with violating. Under these circumstances, the State is constitutionally barred from seeking to prosecute Foster on the ground that he violated the Ordinance.”   Id.  

Under zoning restrictions, a person may be able to prove that he or she had a prior “non-conforming” use that exempts them from prosecution under an ordinance.   In People v. Strobridge ,339 N.W.2d 531, 127 Mich.App. 705 (Mich.App. 1983), the defendant was convicted of owning more than three dogs on a residential property in violation of a local ordinance.   On appeal, defendant asserted that the trial court improperly denied his “nonconforming use” defense; that is, he claimed the ordinance at issue was a zoning ordinance rather than a regulatory ordinance.   Relying on a case that held that prior nonconforming use (where a person has been using property in a nonconforming way prior to the adoption of the zoning ordinance), the court found that indeed defendant was entitled to present such a defense, as he owned the dogs on the property prior to adoption of the ordinance.   The record revealed that defendant applied for a license prior to the issuance of the citation for keeping for more than three dogs in a residential zoned area.   “Since the record reveals that defendant had applied for a license prior to the issuance of the citation in question, which was denied because the property was zoned residential, a prior nonconforming use would be a defense to this prosecution.”  Id.   Ultimately, however, the court found that defendant failed to rebut the presumption of validity of the ordinance.

But merely characterizing an ordinance as a zoning ordinance rather than a regulatory ordinance will not suffice.   As noted in City of Whitehall v. Zageris , 1985 WL 55 (Ohio App. 10 Dist.), appellant and her son were convicted under a number of City of Whitehall ordinances for the keeping of nine dogs on their residential lot.   A municipality may declare a previous lawful activity an unlawful “nuisance” under it police power.   Once a city adopts such an ordinance, the prior lawful use becomes prohibited and may not be continued “under the guise of nonconforming use.”   Id.   Even though the Whitehall ordinance did not declare itself to be a nuisance ordinance in its preamble, the court found a reasonable construction of the ordinance and the accompanying language suggested it fell within nuisance regulation.   Thus, “. . . the trial court correctly determined that Section 505.13 was a nuisance declaration and not a zoning measure.   A legislative body may enact legislation declaring that previously lawful activity will thereafter be deemed a nuisance. Such legislation will be upheld against constitutional challenge if it comes within the police power of the municipality.”   Id.


VIII. Restrictions based on Exotic Pets

Ordinances can also limit based on whether the animal is domestic or exotic ( See, Rhoades v. City of Battle Ground , 114 Wash.App. 1062 (2002), where an ordinance restricting the ownership of exotic pets was upheld, even where owners of dangerous dog ordinances were treated less stringently).   With regard to dogs, many states have adopted strict laws regarding the keeping of wolf-hybrid dogs.   ( See Arkansas and Michigan ).   These ordinances, like other animal control ordinances, will generally be upheld as valid exercises of municipal police power.


IX.   Animal Hoarding

Restrictions on pet ownership may often reveal an equally important concern of a community; that of animal hoarding.   Communities enacting ordinances that restrict the number of pets may also be seeking to limit the incidence of people “hoarding” or “collecting” animals to satisfy a psychological need or addiction.   (More on this specific topic is coming soon in a separate paper at the Web Center .   In the interim, please refer to Tufts University Hoarding of Animals Research Consortium (HARC) website - http://www.tufts.edu/vet/cfa/hoarding/index.html .)  


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