BC can ban backyard breeders

Although there is nothing on any city agenda yet, the resolution of the issue of whether pet breeding will be allowed in Boulder City took a huge step forward last week as Nevada Attorney General Aaron Ford released an official opinion on the intent and limitations of state law that had been requested by city staff last year.

The bottom line on the AG opinion is that while the city cannot outright ban breeding in a “commercial establishment,” it can place major roadblocks on the practice via defining what constitutes a commercial establishment and charging permit fees as high as they want without a limitation by the state. The city is, according to the written opinion, also within its rights to outright ban the practice of “hobby” or backyard breeding.

After city staff proposed a set of requirements for a breeding permit last year, a move that engendered substantial public outcry and was a big part of the reason Ann Innabnit, the former animal control supervisor, announced her surprise retirement, City Attorney Brittany Walker sent the AG an official request for an opinion on the meaning of NRS 574.353. The move came after the Review asked the city if anyone had ever sought this information, seeing as how the intent of the law could be read multiple ways.

That is the question

The question Walker sent read, “Does NRS 574.353 preempt a city government from issuing an ordinance which would prohibit breeding of dogs and cats and, if so, does NRS 574.353 also preempt a city government from regulating non-commercial, hobby breeding of dogs and cats?”

The five-page decision issued on June 13 goes into detail in an analysis of the law but also, in a section entitled “Short Answer” says the following.

NRS 574.353 requires certain’ incorporated cities to adopt an ordinance requiring commercial breeders to obtain a permit on an annual basis from the city. NRS 574.353’s language does not merely permit the city to enact an ordinance but specifically requires it to do so. The statute also requires the issuance of a permit to those who qualify. NRS 574.353 thus preempts a city from prohibiting commercial animal breeding.

However, NRS 574.353 does not pose a prohibition on a city government’s ability to regulate hobby breeding. Nevada has modified Dillon’s Rule to permit local governments to address areas of local concern. A local government may be able to prohibit or limit animal breeding for non-commercial hobby breeders of dogs and cats if it addresses an area of local concern. Additionally, a city government may be able to regulate animal breeding within its express statutory authority to prevent cruelty to animals.

The timing makes a detailed city response difficult as Walker is away from the city until June 23. Asked for an initial comment, City Manager Ned Thomas said in a text message, “Boulder City is pleased to have received the attorney general’s opinion, and staff intends to review it closer internally in the coming weeks. The city intends to follow the law.”

What does it mean?

So what does it actually mean? It appears to say that the city can define “commercial establishment” any way they want to including setting up qualifications in terms of location, size of facility and other items that erect substantial barriers to setting up such a business. Ford also makes sure to point out that state law is silent on the amount a city can charge for such a permit.

The issue of backyard breeding is also clear — the city can ban it. In that short answer, note that Ford said that “a local government may be able to prohibit or limit animal breeding for non-commercial hobby breeders.” In the deeper analysis section, it says that NRS 574.353 is silent on the issue of non-commercial breeding.

“NRS 574.353 is thus silent on a statewide policy of regulation of non-commercial breeders. There is no prohibition elsewhere in the NRS of local government regulation of non-commercial breeders.”

The issue in Boulder City goes back two years to a meeting at which a resident with aspirations of breeding dogs addressed the city council about the lack of a process in city code for getting the required permit. That set off a highly-contentious series of meetings and proposals. City staff originally tied the breeding issue to a desire by some residents —including a sitting member of the city council —to be able to get a “fancier” permit that would allow them to have more than the city limit of three animals in a private home. According to Councilwoman Cokie Booth, she initially supported the combined proposal because Walker told her that the city could not, due to state law, have a fancier permit without addressing the breeder permit. But, separating the issues is precisely what the city ended up doing last year.

Indeed, it appears that the city was out of compliance with NRS 574.353 because, while city code allowed for a permit, there was no process in place for actually obtaining one. However, the issue of a fancier permit is not part of NRS 574.353 and does not appear to be addressed at all in state law.

It’s personal

Booth had a personal interest in the fancier issue as, at the time the proposal was introduced, she had four dogs, which put her out of compliance with city law. When the fancier permit was approved a year ago, she was the first person in the city to apply for and get the permit.

“I have never wanted to allow breeding,” Booth said in an interview at that time. “I did want to have a fancier permit. The city attorney told me that we needed a breeding ordinance and so I supported the combination. But I have never wanted and do not want to see any breeding in Boulder City.”

Asked this week about the AG’s opinion, Booth said, “We can make commercial breeding hard and we can make it expensive. And we can ban backyard breeding and fine people who are caught breeding at home.” Booth further said that when the city does issue requirements for commercial breeding establishments that she hoped they would be limited to what she called the “agricultural” section of town, referring to the area around the horse stables in the southeast part of Boulder City.

“People will say they want a certain kind of purebred dog,” Booth said in reference to those who want to allow breeding. “But all of my dogs are purebred and all of them are rescues. You can find any kind of dog at a shelter.”

After the city sought an official opinion, resident and pet-lover Brynn deLorimier started a petition on the online platform Change.org tying the issue to a regional crisis of overfull animal shelters.

“Today, Nevada stands at the brink of an animal overpopulation crisis with a rapid increase in the number of discarded pets and overflowing animal shelters throughout the state,” the petition text begins. “We must address this swelling concern urgently. This petition aims to clarify section NRS 574.353 of Nevada state law—specifically, we seek to persuade Nevada Attorney General Aaron Ford to issue an interpretation of this statute as allowing local municipalities to ban pet breeding.”

While the AG did not give the city clearance to ban commercial breeding, deLorimier said the petition had an impact and expressed hope it would weigh on council members as they finalize changes to city law.

“I hope the petition, which has gathered 1,236 signatures, will carry weight in city council’s decision-making process,” she said in a text message. “As of today, our town’s modest animal shelter is nearly at capacity. It currently houses many large and older dogs who have been unhoused for extended periods and are difficult to place in homes. Given our limited resources, our community is not in a position to support dog breeding. I started this petition to let our representatives know that we care about this issue, we are watching, and we expect our values to be reflected in any legislation they may pass.”

The proposal that was tabled back in October did not address the commercial establishment aspect, only requiring that someone breeding dogs or cats had to “lawfully occupy a space located in an R1-20, R1-40, or R1-80 zoning district that provides no less than 40 square feet of indoor space dedicated per dog being bred, and 1,000 square feet of quality outdoor space that is adequately shaded.” As proposed, the permit would have to be renewed each year and the renewal would be tied to an inspection. The proposed fee for the license was proposed as $250 plus “actual costs” borne by the city for the inspection process. Renewals would run $100 plus the same inspection costs.

Fines for breeding without a permit would start at $500 for a first offense, moving up to $1,000 for third and subsequent violations.