Random Recipes

LEGAL FRAMEWORK Prepared by ENP and Associates for the Genesee County Land Bank and Applewood Initiative for Community an d Gardening Agricultural Legal Framework Background Report INTRODUCTION Urban agriculture – the raising of food in the city – is occurring in Flint. Individual residents grow their own food in their back yard or a vacant lot. Block groups have established community gardens. A phytoremediation project, where plants are ongoing at a former industrial site. The City’s ordinances, crafted decades ago, do not support these activities and often exclude them. Mo reover, the gardeners are not aware of the This report is part of a process to create a square hole for the gardening peg in Flint. The report summarizes the background work done to date – a review of City Ordinances, case studies of North American cities engaged in urban agriculture, explorations of state and federal laws dealing with agriculture and inquires about the programs of successful groups in urban agriculture in Michigan. REVIEW OF ORDINANCES The Zoning Ordinance was originally written in 1968 and has not undergone significant revisions for over 20 years. While the adoption dates of the other ordinances were not researched, the style and type of regulation was consistent with the zoning ordinance, indicating that these local laws were enacted some time ago. Per the process outlined, ENP & Associates reviewed the Zoning Ordinance and other applicable City of Flint Ordinances. The following tables outline the challenges to urban agriculture created by exis ting regulations. The items in italics denote decisions or debates the Planning Commission should undertake during this process. Flint Urban Agricultural Legal Framework Background Report Section Challenge to Urban Agriculture The zoning ordinance did not have definitions dealing with agriculture such as greenhouse, agriculture, farm, garden, non- commercial nursery (allowed use in several districts –see below), leaving it unclear what types of agricultural uses are allowed. If new regulations are considered, well- crafted definitions of the uses allowed must be included. Section 50-94: This regulation provides vague guidelines to assure compatibility with surrounding neighborhoods. While the regulation is currently used in historic areas like Carriage Town, the regulation, as written, could be easily used to prevent the building of a hoop house or green house in an established neighborhood. The Planning Commission may need to change this regulation to allow buildings for Section 50-8.3 Any structure, defined by the Zoning Ordinance as any structure anchored to the ground, must go through site plan review by the Planning Commission with the exception of less than three single- family dwellings. The site plan review requirements are comprehensive and may not be appropriate for an individual or group wishing to put up a building to support an agricultural The Planning Commission will need to consider what information is needed to review agricultural proposals, and who should review them – the Planning Commission or the Zoning Coordinator. Articles II-VII The following uses are allowed as principal permitted uses in A-1, A-2, B, B-1, C-1, C-2 and D-1 (if the D-1 property abuts a residential zone): “Agricultural. Customary agricultural uses including noncommercial nurseries and greenhouses, but expressly excluding the keeping of animals.” “Recreational. Public parks, playgrounds, neighborhood and community center buildings and grounds”. Agricultural use and noncommercial nurseries and greenhouses are not defined. Community gardens could be construed as a recreational use but if the City wants to allow community gardens in recreational areas, the use should be explicitly listed and defined. 3 Flint Urban Agricultural Legal Framework Background Report Challenge to Urban Agriculture Articles II-VII cont. “Institutional and cultural. Churches and other places of worship; public and parochial schools; colleges and universities for academic instruction; public libraries, Many institutional and cultural entities are homes to large community gardens in other communities. The City should decide if allowance for gardening, specifically buildings like greenhouses, should be Articles VIII to XV No agricultural uses are currently allowed within the commercial and industrial districts of the City. However, the sale and processing of food within the City is restricted exclusively to these districts. The Planning Commission should consider Accessory Uses in The Planning Commission should look at these regulations in terms of urban Article XXIV – Modifications Height limitations do not apply to barns, silos and other farm buildings or structures on farms. While the City must abide by the provisions of the Michigan Right to Farm Act, the Planning Commission should debate Article XXV – Off- The parking and loading requirements do not have specific requirements for agricultural uses For any changes in allowed uses, the Planning Commission should recommend what parking and loading regulations are appropriate, if any. 4 Agricultural Legal Framework Background Report The Planning Commission should decide The Planning Commission should examine how this ordinance could be updated to explicitly allow for composting. Also, the final action plan should include educational resources or programs to assist with proper composting. The Planning Commission should examine Challenge to Urban Agriculture Chapter 4 – Air Section 4-13 bars open burning of refuse. Often times, gardening or farm sites are best cleared by a cont rolled burn, rather than the use of chemicals Chapter 9 – Animals and Fowl The ordinance restricts all meat and egg production to the mainstream industrial food chain, allowing animals to only be kept at slaughterhouses. It does not allow for poultry or domestic fowl on residentially zoned lots. Other cities do allow small numbers of poultry or small livestock in residential areas. The Planning Commission should debate the pros and cons of allowing animals in residential neighborhoods. Chapter 12 – Business and Occupations Generally This ordinance has a number of rest rictions on who may and how food is sold. If the Planning Commission chooses to look at food distribution as part of this process, these regulations may need further scrutiny. Chapter 17 – Fences Fences of any type require a permit. The regulations for fence placement and materials in the A, B and C zoning districts, where agricultural uses are allowed, are difficult to understand and may not be appropriate for gardeners. The Planning Commission should examine Chapter 30 – Nuisances Some provisions of this ordinance could be used to limit composting, an often essential activity in gardening. Chapter 33 – Parks This ordinance is silent on gardening or farming as allowed uses in the parks and places restrictions on activities that would prevent gardening. For instance, it bans the picking or breaking flowers and plants, and the Chapter 39 – Refuse, Garbage and Weeds This ordinance does not specify what department would be responsible for refuse collection at an urban agricultural enterprise of any size. Also, it does not specify the type of trash receptacle required. Finally, it As the Planning Commission makes decisions about what types of urban agriculture should be allowed, this ordinance may need to be amended to allow and enable refuse collection Agricultural Legal Framework Background Report Challenge to Urban Agriculture and growing of crops over 8 inches in height. Chapter 45 – Trees and Shrubs This ordinance could be modernized to differentiate by the type of tree for spacing and requirements. The Planning Commission should decide Flint Urban Agricultural Legal Framework Background Report CASE STUDIES In consultation with the Genesee County Land Bank and the Ruth Mott Foundation, ENP and Associates selected Toronto, Ontario; Philadelphia, Pennsylvania and Seattle, Washington as case studies for the reasons listed in the table below: for selection Generally recognized as the best food system planning and urban agriculture in their North American planning and governance. Used urban agriculture as a specific tool to attack the problem of Philadelphia, Pennsylvania Their P-Patch community gardening program is over 30 years old. Currently reviewing legislation to allow poultry, bees, rabbits, goats, sheep and pigs. Urban agriculture is a component of a larger food security movement in Toronto, Ontario. A non-profit umbrella agency focused on access to affordable, nutritious food at the neighborhood, city, region and national level, FoodShare, and the Toronto Food Policy Council, a division of the City’s Department of Health, have been the two main actors in creating policy for and using programs to support urban agriculture to assure that all Toronto residents have access to affordable, healthy, culturally appropriate food. FoodShare was founded in 1985, and funded by the City initially to coordinate emergency food services. It runs a number of programs – from lobbying for policy changes, to community gardens to a service where Toronto residents can pur chase a weekly delivery of fresh food from local farms and community gardens. The Toronto Food Policy Council (TFPC) was founded in 1990, as a subcommittee of the Board of Health, to seek long-term solutions to hunger and the sustainability of the food system. TFPC has developed comprehensive reports on how every aspect of Toronto government can contribute to food securing including a report on community gardens in 1995 and Feeding the City from the back 40: A Commercial Food Plan for the City of Toronto in 1999 showing how In 2000, the City Council adopted Toronto Food Charter which codified the city’s commitment to food security. TFPC, Feeding the city from the back 40 , accessed at http://www.toronto.ca/health/tfpc_feeding.pdf Toronto’s Food Charter accessed at http://www.toronto.ca/food_hunger/pdf/food_charter.pdf 7 Flint Urban Agricultural Legal Framework Background Report TPFC also administers a city-funded food access grant, which has been used to fund gardens, food distribution and local kitchens. TFPC’s Other city departments contribute as well. The Department of Parks and Recreation adopted a Community Garden Action Plan in 1998 and continues to run a children’s gardens program. Community gardens, rooftop gardens and food securi ty is woven throughout the City’s official plan, thanks in part to efforts of the TFPC. Finally, a few urban demonstration farms exist in Land use in Toronto is governed by an amalgamation of zoning by-laws from ten municipalities incorporated into Toronto in the late 1990’s. The City is in the process of drafting one zoning code for the entire municipality but presently the zones and allowed uses vary from place to place. The planning department differentiates agriculture (raising of crops and animals) and Philadelphia, Pennsylvania Urban agriculture has a long history in Philadelphia but in the 1990’s emerged as a means to In 2003, the City of Philadelphia formally adopted the Green City Strategy. Through its Neighborhood Transformation Initiative, the City has contracted PHS to do greening work – clearing and stabilizing of vacant properties, landscaping, and establishment of community gardens. PHS also provides education programs for groups to start community gardens. Telephone interview with Alan Theobald, Zoni ng By-Law Acting Project Manager, City of Toronto, January 28, 2009. Ibid. Philadelphia Horticultural Socieity, “Greening in Progress”, accessed at http://www.pennsylvaniahorticulturalsocie ty.org/phlgreen/greening-progress.html 8 Flint Urban Agricultural Legal Framework Background Report Private agricultural enterprises exist in Philadelphia as well. An example is Greensgrow Farms, a hydroponic farm built on a former factory site in a neighborhood. The City of Philadelphia zoning ordinance allows the following: Agriculture and horticulture with the exceptions of commercial keeping of farm stock or poultry, commercial greenhouses and establishments for sale of farm or horticultural products in most of the residential districts, prim arily those with low-rise multiple family. Keeping of farm animals (poultry, goats, sheep, cows) is only allowed at certain facilities The P-Patch Program, which provides organic community garden space for residents of 70 Seattle neighborhoods, has been the predominant urban agriculture activity in Seattle. P-Patch began officially in 1973 when the City of Seattle bought the Picardo Farm, hence the “P” in “P- Patch”, where community gardening efforts had begun a few years earlier. In 1974, the City authorized a community gardening program throughout housed in the Department of Human Resources but is now under the Department of Neighborhoods. The P-Patch Trust, a non-profit, is a partner with the Department of Neighborhoods in administering the P-Patch program. Seattle has actively supported community gardening in legislation and planning. The City Council in 1992 passed a resolution declaring general support for community gardening and specific support for surplus land being available for gardening. Seattle’s comprehensive plan, adopted in 2005 and updated annually, calls for one community garden for every 2,500 households in urban village areas in the city. The plan identifies community garden locations, 9 Flint Urban Agricultural Legal Framework Background Report The land use ordinance allows the following Keeping of up to three small animals accessory to the principal use in all zones, including residential abiding by certain provisions. Up to three chickens may be allowed in addition to the small animals. (Chapter 23.42.052 Keeping of Animals) Keeping of bees is allowed outright as an accessory use when registered with the State Department of Agriculture and certain provisions such as no more than four hives on lots Horticulture (raising of plants only) and aquaculture are permitted uses in all commercial districts, with some limitations on size in less intense districts. Animal husbandry is allowed as an accessory or principal use in all commercial districts. In January 2009, the Cleveland City Planning Committee recommended an ordinance to allow small poultry and bees to be kept on residential property. On the committee’s website, Councilman Cimperman explains why the legislation is proposed, “Initiative such as urban gardening increase sustainable living in the City and spur community and economic development. The keeping of small poultry and bees in the City provides residents with another way to access fresh food and moves Cleveland even loser to a fully sustainable economy.” Cleveland’s zoning ordinance has a urban garden district, the intent of which is to “ensure that The following themes run through the case studies: non-profit partners, planning for community Accessed at http://www.clevelandcitycouncil.org/Home/News/ December12008/tabid/593/Default.aspx on January 28, 2009 Accessed at http://caselaw.lp.findlaw.com/c levelandcodes/cco_part3_336.html on January 28, 2009 10 Flint Urban Agricultural Legal Framework Background Report Seattle, Toronto and Philadelphia’s efforts in urban agriculture are either spearheaded or supported by a non-profit. The independent agency provides education, resulting in some quality control, for gardeners. It also works to help distribute and sell food produced in the City. A non- profit partner seems essential for long-term success. As the Planning Commission discusses changes to the City’s ordinances, it should also work with community groups, such as the Ruth Mott Foundation and the Genesee County Land Bank to identify potential partners for the City. Community garden areas are identified in the land use plans for Seattle and Toronto. Identification of areas and quantitative requirements, such as Seattle’s requirement for a community garden for every 2,500 residents of a neighborhood, has led to the development and preservation of community gardens. The planning strategy in Philadelphia for neighborhood revitalization articulates gardens as part of the essential open space. When Flint undertakes any planning process, the City should include urban agriculture, community garden location and food upport any legislative amendments made in this process. Zoning Methods Seattle allows for agricultural uses in commercial districts, Philadelphia in MICHIGAN LAW – RIGHT TO FARM The Michigan Right to Farm Act (RTFA) was written to address nuisance complaints being brought against agricultural operations by new residents moving into the countryside. The RFTA states that a farm or farm operation not be found to be a nuisance if it conforms to Further, the RTFA exempts farms that existed before residential uses moved to land within one were there first are also exempt from nuisance complaints, as long as the farm was not a nuisance before the new residents moved in). The section below describes a recent Michigan Supreme Court case where the RTFA was applied in 11 Flint Urban Agricultural Legal Framework Background Report Papadelis v. City of Troy This case involves a family who expanded an agricul The Papadelis family owned two parcels of land in the City of Troy, both of which were zoned for single-family residential use. The Papadelis operated a legal non-conforming nursery on the south parcel. The family then acquired more property on the north, bringing the parcel above the minimum lot size required for agricultural operations in the City. The Papadelis then constructed a pole barn and two large greenhouses on the north property, claiming that they were exempt from City permit processes under the Michigan Right to Farm Act (RTFA). The Michigan Supreme Court found in favor of the City of Troy, clarifying that local ordinances are only preempted under the RFTA if the ordinance directly conflicts with the RTFA or GAAMP. In addition, the court ruled that greenhouses and pole barn were not incidental to the agricultural use of the land. This case essentially validated the position of the local unit of government that zoning ordinances still apply to agricultural operations, even the farm complies with GAAMP. The RTFA does protect farms from nuisance complaints , but farms are still subject to local zoning. How RTFA Applies to Flint Any regulations governing agricultural uses must be in line with GAAMP. However, GAAMP are U.S. FARM BILL The 2008 Farm Bill contains no specific references to urban agriculture. However, Section 4402: Assistance for Community Food Projects, pr ovides federal money to establish “Healthy Urban Food Enterprise Development Centers” and fund a “Community Food Project”. A community food project is as a community-based project that is designed to: 2. Increase the self-reliance of communities in providing for the food needs of the 3. Promote comprehensive responses to local food, farm and nutrition issues 12 Flint Urban Agricultural Legal Framework Background Report a. Infrastructure improvement and development b. Planning for long-term solutions The section defines underserved communities as, generally, areas that have limited access to We examined the programming of two successful Michigan urban agriculture programs: Growing Hope in Ypsilanti Growing Hope provides education, maintains community gardens, links gardeners with available space, runs youth and school gardening programs for children from pre-schoolers to teenagers and facilitates donation of garden produce to local food pantries. The organization is also in the process of building a demonstration and training center. Please see for more information on their specific The resource program is the collaborative effort , has more information about their programs. Flint has an active gardening community. Ruth Mott Foundation and Genesee County Land 13 Flint Urban Agricultural Legal Framework Background Report assure a level of quality to the food produced. As the Planning Commission develops RESOURCES REFERENCED http://www.toronto.ca/food_hunger/pdf/food_charter.pdf http://www.toronto.ca/health/tfpc_feeding.pdf Telephone interview with Alan Theobald, Zoning By-Law Acting Project Manager, City of Toronto, January 28, 2009. http://www.greensgrow.org/pages_04/philaproject.html http://www.pennsylvaniahorticulturalsoci Kaufman, Jerry and Martin Bailkey, “Farming Inside Cities: Entrepreneurial Urban Agriculture in the United States”, Lincoln Institute of Land Policy Working Paper, 2000. City Bountiful: A Century of Community Gardening in America . University of http://www.amlegal.com/library/pa/philadelphia.shtml http://www.ppatchtrust.org/ City Bountiful: A Century of Community Gardening in America . University of http://clerk.ci.seattle.wa.us/~public/code1.htm http://www.clevelandcitycouncil.org/Home/News/December12008/tabid/593/Default.aspx http://caselaw.lp.findlaw.com/clevelandcodes/ 14