Notes on the Legal Issues of Urban Agriculture

- Notes from the 7/12/2010 meeting hosted by the Sustainable Economies Law Center (SELC)

Please remember that these are merely notes from a meeting, they should not be considered legal advice!

Helpful link for individuals interested in urban agriculture in San Francisco:
SF Agriculture Zoning and Licensing Information

Zoning Laws:

• zoning laws were created to protect people from waste and commercial dumping
• current zoning is based on the assumption that people drive cars, and could be revised to encourage more public transportation
• zoning codes are a part of the municipal code, which also include health, election and other info
• zoning codes are divided into residential, commercial, industrial and mixed use spaces
• cities are required to have general plans with describe both the current and future situations
• zoning code is on the city planning websites and general planning. There you can search for information about urban agriculture and animals.

Some Zoning Changes that Can be Useful for Urban Agriculture:

1. Cities: helping to facilitate and convert concrete spaces into urban agriculture
2. Private Agreements: a) encouraging the creation of backyard and front yard gardens (your own or someone elses); b) correcting zoning issues to enable individuals to sell food grown in their own yards (similar to changes that enable the creation of home daycare facilities)
3. Private Covenants and Neighborhood Associations: There are three types: a) 2 or more landowner who restrict language us in a deed; b) people in a neighborhood that is considered a neighborhood or homeowners association; c) leasing restrictions on property use. In these cases, association agreements can be amended. The burden is on the person who has a complaint about property use to prove that the use of the land is restricted. Most leases have a clause that prohibit selling. However, many leasers are amenable to urban agriculture when it can be shown that a group of tenants are in favor of it; the gardeners assume liability risks; and issues like how to pay for the water separately is taken care of. (again, this can be handled similar to in home childcare)

Rooftop & Wall Gardens:

• zoning and green roofs typically are not thought of as edible spaces. Seattle has a great model for zoning laws that address this issue.
• there are height regulations to think about (particularly for rooftop gardens)
• make sure to have the structure of the building checked by an engineer. There is very little cost difference in adding rooftop gardens to the design of a building that is in construction, but trying to add them after the building has been constructed can sometimes cost more than three times the cost of the building.
• Roof access is very important. For frequent use of the roof you cannot rely on a ladder and need to have either stairs or elevator access.
• building regulations, insurance and fire codes are also important to think about

Animals

• most dense areas have animal limits and placement rules
• the rules are typically overly restrictive because they were written in a time when there was less sanitation
• to find out the codes for your city, check out the online city codes and search for animal restrictions.
• you should also check with your neighbors, because even if there are not restrictions in your area neighbors can file a nuisance complaint which could jeopardize the ability to have animals

Testing

• there are currently no regulations that require testing (accept for on city property) this is because there no standards for soil tests - other than lead levels
• however, it is a good practice to always get the soil tested before planting. This is easily done through universities.

Employment Laws

• This is a big issue, particularly because of the current economy and the emphasis on fining urban agricultural sites for their violation of labor standards.
• you cannot be a volunteer on a commercial farm.
• you cannot replace paid labor with interns.
• independent contractor relationships, if they go to a judge will look beyond the contract to the nature of the relationship.
• labor laws are a little outdated as they related to urban agriculture
• Washington state just changed their laws to allow volunteers in commercial urban agriculture sites, similar law changes are needed in California, because this enables people to learn skills and just do something they love by getting involved in gardens.

Volunteers

• There are both federal and state laws to follow.
• In California, state laws are more restrictive than federal laws
• volunteers cannot be used for commercial interests
• it is the intent of the volunteer (rather than the employer) that is the most important in the agreement.
• if someone becomes dependent upon the food that is given in exchange - they are not actually a volunteer because they are considered to have an economic relationship with the group.
• it may be possible for people to get shares of the food if they are considered part owners or buying shares

Interns

• interns are supposed to be a burden on the site that is hosting them
• you have to be able to prove that they are not simply replacing an employee
• they have to be gaining a skill
• work study does not make it ok for an intern to do work that is considered employment
• interns should not be creating an economic gain for the commercial or non-profit site

Independent Contractor

• there is a right of control test. ie you would not tell a plumber who comes to your house how to fix something. So, an independent contractor should be someone who provides a service, but you do not control their work. Hear the courts will look beyond language to the real relationship.

Legal Use of Food:

• Consume it yourself. It is only when you are giving or selling food to others that this becomes and issue.
• If you donate the food to charity, you are exempt from the liability laws involve food distribution.
• If you pay volunteers in food, this is an issue. (see above)
• even if it is not long term project, you may still need a temporary food event license to even have food sampling
• Selling food - there are lots of food health codes and requirements including: the calibrating of scales, food handling and sellers licenses, food permits, inspections,
• food preparation requires permits (ie cooking the produce into something else - such as tomatoes to tomato sauce) additonal cooking permits are needed for events
• farm stands are very legally defined - public health laws and policy should be checked locally
• farmers market information can be found here, and farmers market concessionare info can be found here

Insurance and Liability

• this type of insurance can be expensive
• selling food is not a task that can be done by volunteers
• there are tax exemption issues with selling food, you need to show that selling food is a part of the core mission of your work and is not a commercial operation (ie you can't act like a business and be considered a non-profit)
• non-profits may want to create a for-profit subsidiary that sells food
• asking for donations could be a way of getting around this and being less commercial looking
• there is additional liability insurance needed if the food is being transported off the site from where it was grown
• selling for the purpose of teaching employment skills can be argued as something that does not violate non-profit status, but you have to have proper scale of your operation so that amount is reasonable and not overly commercial

Liability Insurance Policies

• liability companies will want to know what you are growing
• group should have volunteer accident and death policies in addition to their general liability
• there are special farm plans
• if you get an outrageous quote and are not using farm equipment, you can ask for an appeal and have an appraiser visit your site to get a rate adjustment

Policy Issues

• Berkeley and Oakland have food policy councils. Oakland has collaboratives to be a part of HOPE to create strategies for Oakland
• Statewide - The California food and justice coalition is developing local policies working on grassroots action
• National - REAL (respect, eat, act live) is working on the food movement, systemwide food reform and hope to create a national dialogue

Model Policies

• See http://www.healthyplanning.org/
• Kansas City just approved urban agriculture in residential districts and selling from your home garden
• Some cities have open space districts, everything sold has to be grown on the garden
• Some cities have urban agriculture districts which overlay on top of other districts
• The SF Planning Dept is working on updating zoning code and the general plan to encourage urban agriculture. There is currently an executive directive from the mayor (but zoning code rules still overide this). A draft is expected in July with a timeline for September implementation.
• The San Francisco Urban Agriculture Alliance is looking at policy issues in San Francisco including the use of public land and what could be used for urban agriculture.

Other Laws and Information

• The Williamson Act was created to allow urban spaces to decrease taxes as much as 75% for individuals who allowed their vacant lots to be used for agriculture. California set aside a fund to replace the taxes lost by the county, but this fund is now broke and counties will like seek to end this law.
• It is likely that if immigration law passes that there could be a path to citizenship created for people who work for a certain amount of time in agricultural jobs. This could create possibilities for the urban agriculture community to work with other justice groups and create more green jobs.