Planning and Zoning

Disclaimer: The Sustainable Economies Law Center provides periodic updates to this site, however, information presented may be out of date. We encourage you consult with a professional before taking action based on the information here.

 

Welcome to the Planning and Zoning section. This page provides both general and city-specific information on zoning codes, urban agriculture policies, key terminology, and useful resources.

What is zoning?

Zoning is used by local governments/municipalities to designate permitted uses of land based on mapped zones, which separate incompatible land uses from one another. For example, zoning helps to separate industrial uses from residential uses.  Common zoning designations are residential (R, RM, RH, etc.), commercial (C, CM, CR, etc) industrial (M), public, mixed use, and open space. In Oakland, CA, for example, zone types are usually given a code like “R-1,” for One Acre Estate Residential Zone, “R-36” for Small Lot Residential Zone, or “C-10” for Local Retail Commercial Zone (Oakland Municipal Code, Chapter 17).

General Plans are the overall policy document of acceptable uses of land in a city which guides the growth of a jurisdiction in the long term. The General Plan and other policy documents can often support an activity such as urban gardens (like Seattle, Washington) but it is the zoning codes that dictate the specific legal use. If a locality is in the process of updating its zoning code to allow some forms of urban agriculture, it is advisable to inquire about timing and extent; updating codes can be a lengthy process, and updated policies may still restrict full scale operations by prohibiting green houses, nurseries, or the like.

Zoning History: Disparate Impacts

“Historically, there has been a natural connection between planning, zoning, and public health.”1 The early zoning movement sought to address public health issues associated with urbanization in the late nineteenth and early twentieth centuries.2 California took its first step toward enabling zoning in 1863, when the state passed a law granting San Francisco authority “to make all regulations which may be necessary or expedient for the preservation of the public health and the prevention of contagious diseases.”3 Early zoning ordinances allowed many different types of activities relatively close together,4 but modern zoning tends to put more distance between residential and business districts, contributing to “a landscape of isolated people.”5

Despite the early focus on public health and healthy living environments, many modern zoning ordinances primarily protect property value, with negative effects on people of color and low-income communities.6 The first zoning laws in California attempted to exclude Chinese people from employment by banning laundries in certain areas.7 In 1917, the Supreme Court declared racial zoning unconstitutional, but disparities persist.8

Today, a growing body of research shows links between race, poverty, hazardous living environments, and chronic diseases.9 “Because of the severe and persistent degree of residential segregation in the United States, racial and ethnic minorities and poor individuals live in very different areas than their white and wealthier counterparts.”10 Poor and minority neighborhoods often have limited access to grocery stores and outdoor recreation spaces, but high access to liquor stores and fast food.11 These environmental factors are associated with less physical activity and higher rates of diet-related diseases like diabetes.12

How does zoning relate to urban ag?

In practice, zoning is often used to preserve the character of a neighborhood and to ensure new development is compatible with existing uses and communities.  Zoning codes or ordinances, also called planning codes/ordinances, define and determine which activities are allowed in each zone. Residential zoning, for example, tends to be the most restrictive — allowing only residential uses, group homes, sometimes childcare and institutions (churches, schools) and small home businesses. Home businesses are mostly restricted to indoor businesses that are not open to the public, do not have employees, and do not require truck deliveries or other commercial operations that an urban farm or urban agriculture operation is likely to have. Even a local CSA would be considered a commercial use not allowed by zoning law in most residential (and other) zones.

Since most zoning codes in the US were established starting in the 1910’s, urban agriculture and farms were not seen as an urban activity but rather as a rural activity or a thing of the past. It has experienced occasional resurgences, but in a boom and bust cycle that loosely tracks economic prosperity.13 Public officials tend to view it as a temporary, rather than long-term, solution to hunger.14 For example, “rallying to such slogans as ‘hoe for liberty’ and ‘plant for freedom,’ 5 million gardeners grew $520 million worth of food in 1918,”15 and “a 1934 report of subsistence gardens by state reported that more than 2.3 million families participated on nearly four hundred thousand acres of land, producing food valued at more than $36 million.”16 However, after World War II, public support for urban agriculture decreased.17

Agriculture is frequently only permitted in industrial zones and, to a much lesser extent, in commercial zones.  Since residential areas are often where larger yards and plots of land exist for the creation of urban gardens, outdated planning codes do not accommodate the resurgence of backyard farms and urban gardens. An important legal distinction is made between growing food for your own consumption and growing it for sale. Zoning issues do not usually arise when people simply plant gardens in their yards; even free distribution of produce is not prohibited. Legal issues arise when commercial transactions takes place or activities disturb neighbors. This article effectively illustrates the nuances of urban farming and zoning issues in Berkeley, California.

Difficulties arise when a garden starts to look like a commercial operation or like a civic activity. There is no clear cut answer to whether you will encounter zoning problems and what you can do to get clearance to plant the garden. Every city has different rules, and the rules may be interpreted differently depending on the context of your neighborhood. This section will continually use the example of Oakland, CA for the purpose of explaining potential zoning issues.

What zone do you live in?

Chances are that you live in a residential zone; however, there are usually many types of residential zones in a city, and each provides for different permitted uses of your property. To determine how your neighborhood is zoned, you may take a look at your city’s General Plan, or check for online resources that will tell you.  To determine the zoning of your neighborhood, you can sometimes search for your house on an online map that shows zoning numbers.

What activities are permitted in your zone?

Local ordinances almost never provide a comprehensive list of what you can and cannot do in a residential area. Ordinances might list some things that you can or cannot do, while others provide a general provision that simply allows you to do what is “customarily associated with” or “incidental to” residential use. For example, an “accessory use” refers to any activity you conduct at your home that is typically and normally associated with residential use. Accessory uses, conditional uses, and variances are described in three scenarios below.

Nuisance Laws

A note about nuisance laws from Janelle Orsi’s “In My Backyard: A Guide to Legal Issues Related to Yard-Sharing for Urban Agriculture,” 2007:

The types of nuisances associated with a yard garden will be minimal.  California law defines nuisance as:

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.18

Typically, neighbors of agricultural areas battle nuisances such as loud equipment, smelly animals, dust, chemicals, and excessive water run-off, all of which are unlikely to come with a yard garden.  A yard garden will most likely not interfere with your neighbor’s “comfortable enjoyment of life or property,” except to the extent that it results in increased traffic, parking, and visitors. Also, provided that the garden is organic and that water use is monitored, there should be no complaints related to chemical use or water run-off.

Local laws may provide more specific definitions of nuisances, or may prohibit certain activities highly likely to cause nuisance.  Again, most of these rules will not affect a yard garden, since they tend to prohibit things such as public drunkenness, loud engines, and public obscenity.  If you are part of a homeowners association, be aware that the organization may have additional prohibited activities. (See the Private Land Use Controls section for more information.)

Keeping Animals

However, in the event that you would like to keep chickens or other animals, you should check local ordinances relating to keeping animals.  The city of Oakland, for example, has a law against having a rooster anywhere within the city limits,19 due most likely to the tendency of roosters to be loud.  Oakland allows for raising of ducks, geese, and chickens, as long as the enclosure for the fowl is 20 feet from the nearest house, church or school.20 Thus, you may only want to consider keeping fowl if you have a yard that is large enough to accommodate space for the birds and space between all neighboring houses. (See the Animals/Livestock section for more information.)

Public Nuisances

In addition to the abovementioned nuisances, there are “public nuisances,” which have the potential to affect the community as a whole.  State law provides that:

A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.21

A common example of a public nuisance is an activity which drives the area property values down.22 At least one study has found that community gardens actually raise property values.23 However, if the garden is in an especially elite neighborhood, the opposite could possibly occur.

Nuisances and Public Policy

Nevertheless, activities that are encouraged by public policy could be protected, even if they decrease property values.  California law provides that “nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.”24 At this time, there is not a statute that expressly allows or encourages use of yards for community gardens; however, this may change in the future.

“Right-to-Farm” Laws

Do “Right-to-Farm” laws apply to urban agriculture? In CA, approximately 40 counties, including Alameda County,25 and 50 cities have right-to-farm ordinances.26 These laws exist to protect farmers from being accused of creating a nuisance, especially in areas where urban growth is starting to encroach onto agricultural areas.  In Alameda County, the ordinance provides that any new developments near an agricultural area and any subsequent transfers of that property must contain a disclosure statement that includes the language:

“You are hereby notified that the property you are acquiring an interest in is located within 2,000 feet of agricultural land, agricultural operations or agricultural processing facilities or operations. You may be subject to inconvenience or discomfort from lawful agriculture or agricultural processing facilities operations. […]”27

The law also provides guidelines for filing a grievance or complaint against the agricultural enterprise.28

The right-to-farm laws generally only apply to farms that have been operating for a certain number of years, and often only to farms in areas zoned as agricultural, or located where urban sprawl borders agricultural areas.  While it might make sense to broaden “right-to-farm” laws to apply them to urban farms, chances are that the same nuisances complained of in rural areas will not apply to a small urban garden.  The extent that “right-to-farm” laws could protect urban gardens is therefore minimal.

What do I do If I want to start an urban farm?

If you have a plot of land in mind, check its zoning with your municipality’s planning department/board before you purchase, lease or commit to the plot or yard. That way you will discover if urban agriculture is an acceptable use of the land and, if it is not, what steps you can take to make it a permitted use.

Scenario One: Accessory Use

“Accessory” activities are assumed to be a natural part of living in and enjoying your home. One California court has explained the purpose of creating residential zones is to “promote family life – to provide a safe, healthful and aesthetic environment in which to raise a family – and those uses of property deleterious to this goal are necessarily excluded” (Sechrist v. Municipal Court 1976). The court explained that activities assumed to be part of residential use of your property include “use of a home as a social institution, for the private religious, educational, cultural and recreational advantages of the family.” The court even specifically listed gardening as a customary use of a property to make the home more comfortable and enjoyable.

However, while you might consider installing a community garden in your yard to be a healthy, social, and aesthetic use of your property, your neighbors may not see it the same way. If volunteers come to your house regularly to tend the garden, and if you are producing vegetables for sale, it may start to give your home a public feel. According to the same court, “[t]he scope of such activity is circumscribed only insofar as it may not assume a commercial or public character, or constitute a health or safety hazard to the neighborhood.”

Preserving a “Residential Feel”

Thus, the likelihood that a yard garden could be challenged under a zoning ordinance depends on whether the garden starts to affect the residential feel of the neighborhood. The best way to avoid a zoning problem would be to talk to your neighbors, let them know that a small group of volunteers will come at certain times to tend to your garden. Ensure that the volunteers do not cause any parking competition in the neighborhood. Also, preferably, you or the volunteers would sell or distribute the produce elsewhere, to avoid letting the garden appear to be a “commercial” enterprise.

Even if the use doesn’t appear to be commercial, the involvement of outside community members could make it an impermissible civic activity. In the city of Atlanta, GA, for example, the planning ordinances allow for gardens as an accessory use in a residential area (Atlanta, Ga., Code of Ordinances §16-03.004), but indicate that garden clubs must get a special permit to operate in residential areas (Atlanta, Ga., Code of Ordinances §16-03.005).

At the end of the day, the question of whether the garden will negatively impact the residential character of the neighborhood may come down to a question of common sense. “Any residue of uncertainty as to prohibited uses of residential property must be resolved by the common sense of the prospective user of property and the good faith of the officials charged with enforcement of the zoning ordinance”(Sechrist v. Municipal Court).

To provide an example, in the City of Oakland, the statute regarding “accessory” activities reads:
“In addition to the principal activities expressly included therein, each activity type shall be deemed to include such activities as are customarily associated with, and are appropriate, incidental, and subordinate to, such a principal activity” (Oakland Municipal Code §17.10.040).

Home occupations are sometimes seen as an accessory use. Examples of permissible home occupations include “handicraft manufacture of products, the conduct of an art or profession, the offering of a service, or the conduct of a business” (Oakland Muni Code §17.112.020). The statute goes on to list examples of accessory activities and various limitations on each. For example, having a home business is permitted as an accessory use, but only if:

  1. The home occupation shall not generate pedestrian or vehicular traffic substantially greater than that normally generated by Residential Activities in the surrounding area.
  2. The home occupation shall be so conducted as not to cause offensive or objectionable noise, vibration, smoke, odors, humidity, heat, cold, glare, dust, dirt, or electrical disturbance which is perceptible by the average person at or beyond any lot line of the lot containing the home occupation.
  3. No “teaching of organized classes totaling more than six persons at a time;” or “care, treatment, or boarding of animals for profit.”
  4. No person other than a resident of the living unit shall be employed in the conduct of the home occupation, except that practitioners in the medical arts may employ one assistant who does not reside in the living unit.
  5. home occupation shall only be performed within a living unit by a resident thereof, or within a garage which is attached to, and reserved for, such living unit. When conducted within a garage the doors thereof shall be closed.

While each of these limitations applies to a home occupation, it is safe to assume that the same principles could apply to an analysis of whether a community garden has taken on a commercial character. Unfortunately, the requirements that no person other than a resident may work there, and that the “occupation” must be performed inside the house, would both be difficult to overcome in a community backyard garden. However, you can still take precautions to avoid the risk that the garden would be considered an impermissible use, including:

Recommendations to Avoid Legal Issues for your Community Garden:

1. Keep pedestrian and car traffic at a minimum.
2. Ensure that there are no odors, dust, or noise problems.
3. Do not hold large group gardening classes.
4. Do not put up a sign.
5. Do not sell vegetables on site.

Scenario Two: Permitted or Conditionally Permitted Use

Sometimes, even if zoning is residential, special permits are required for small-scale operations. A conditional use permit (CUP), allows you to engage in an activity like farming with some conditions such as limits to a certain size, number of employees, certain hours of operation, etc.  Since the process to get a CUP can be lengthy and costly, it is best to understand the zoning requirements of the property prior to investing in it.

If accessory uses are  allowed uses, conditionally permitted uses require that you apply for a permit and meet certain prerequisites in order to engage in them. If you are uncertain, it might make sense to simply call the local planning agency and ask whether a conditional use permit will be necessary. If a conditional use permit is required, the process will not likely be too complicated. In Oakland, conditional use permits application forms are available online and ask for fairly simple information about the proposed activity.

Oakland also differentiates between “major” and “minor” conditional use permits (Oakland Municipal Code §17.134.020). Major permits require jumping through more administrative hoops, including having a public hearing. Minor permits may be sent to a hearing, but usually only require approval by the Director of City Planning. Both permits require posting notice on the site and providing written notice to anyone who owns property within 300 feet of the site. Major conditional use permits are required for more intensive or extensive activities, such as residential care, transitional housing, and emergency shelters. Fortunately, planting a crop in your yard would require only a minor conditional use permit.

Scenario Three: Obtaining a Variance

Although it is unlikely, if you live in a city that will not allow community gardens as either an accessory, permitted, or conditionally permitted use of your residence, you may need to apply for a use variance, which is more difficult to obtain than a conditional use permit. Oakland, California’s variance requirements are fairly typical of those in most cities (Barlow Burke, Understanding the Law of Zoning and Land Use Controls). In Oakland, obtaining a variance often requires showing, among other things, that the zoning ordinances are imposing “practical difficulty or unnecessary hardship inconsistent with the purposes of the zoning regulations,” that compliance with the regulation “would deprive the applicant of privileges enjoyed by owners of similarly zoned property,” and that granting the variance “will not adversely affect the character, livability, or appropriate development of abutting properties or the surrounding area, and will not be detrimental to the public welfare or contrary to adopted plans or development policy” (Oakland Municipal Code §17.148.050).

What can I do to change zoning laws?

If your city has too many hurdles to installing community garden, it might be a good idea to try to change the law. One option is re-zoning the city, which requires that the planning agency take legislative action and either redraw the zoning map or change existing zone types (Burke, 2002). For example, residential areas could be rezoned for mixed agricultural and residential use.

However, the easier solution would probably be to lobby for a simple addition to the ordinance governing permitted residential uses by adding the following sentence to the local ordinance: “In the interest of ensuring a secure food source for the community, growing fruits and vegetables for community or personal consumption is a permitted use of a residential property, whether the garden is tended by residents or non-resident gardeners.”

How Some Cities Treat Urban Agriculture

We have created separate wiki pages for each of the cities below where we have collected zoning codes and urban ag policies, defined key terms, and linked to helpful resources for farming in the city.

Farms in Residential Areas

Farming efforts in residential areas can encounter legal difficulties because of noise, traffic, and other externalities that affect neighboring properties. Compliance with zoning restrictions is difficult given that the use may lie somewhere between commercial, private, and public use. Taxes and permitting can further complicate a city’s regulatory efforts and imperil the farm’s economic survival.

Commercial and Non-Profit Farms
Farms on Public, Commercial, or Industrial Land
General Info
Acknowledgements of Contribution:

Juli Chamberlin, Yassi Eskandari-Qajar, Janelle Orsi

 

  1.  Sacoby Wilson et al., How Planning and Zoning Contribute to Inequitable Development, Neighborhood Health, and Environmental InjusticeI, 1 Environmental Justice 211, 212 (2008).
  2.  Id.
  3.  Lisa Feldstein, Public Health Law & Policy, General Plans and Zoning 93 (2007) (citing Ex Parte Shrader, 33 Cal. 279, 282 (1867)).
  4. Emily Talen, Zoning and Diversity in Historical Perspective, 11 J. Planning History 330, 343 (2012), available at http://jph.sagepub.com/content/11/4/330.
  5. Bruce Stephenson, The Roots of the New Urbanism: John Nolen’s Garden City Ethic, 1 J. Planning History 99, 100 (2002), available at http://jph.sagepub.com/content/1/2/99.
  6. Wilson, 1 Environmental Justice at 212.
  7. Emily Talen, Zoning and Diversity in Historical Perspective, 11 J. Planning History 330, 332 (2012), available at http://jph.sagepub.com/content/11/4/330.
  8.  Id.
  9. Wilson, 1 Environmental Justice at 212-14.
  10.  Id. at 212-13.
  11. Id.
  12. Id.
  13. Tammara Soma and Sarah Wakefield, The emerging role of a food system planner:Integrating food considerations into planning, Journal of Agriculture, Food Systems, and Community Development (2011), available at http://dx.doi.org/10.5304/jafscd.2011.021.006 at p. 2.
  14. Domenic Vitiello & Catherine Brinkley, The Hidden History of Food System Planning, J. Planning History 13 (2013), available at http://jph.sagepub.com/content/early/2013/10/15/1538513213507541.
  15. Laura Lawson, The Planner in the Garden: A Historical View into the Relationship between Planning and Community Gardens, 3 J. Planning History 151, 158 (2004), available at http://jph.sagepub.com/content/3/2/151.
  16. Lawson, 3 J. Planning History at 160.
  17. Cultivate L.A.: An Assessment of Urban Agriculture in Los Angeles County 4 (2013), available at http://cultivatelosangeles.files.wordpress.com/2013/07/cultivate-l-a-7-24.pdf (Masters project at UCLA).
  18. Cal. Civ. Code §3479.
  19. Oakland Municipal Code 6.04.320.
  20. Oakland Municipal Code 6.04.320.
  21. Cal. Civ. Code §3480.
  22. Cora Jordan, Neighbor Law: Fences, Trees, Boundaries, & Noise, 4th Ed., Berkeley, CA: 2001.
  23. Vicki Been and Ioan Voicu, “The Effect of Community Gardens on Neighboring Property Values” NYU, Law and Economics Research Paper No. 06-09, March 2006.  “We find that the opening of a community garden has a statistically significant positive impact on residential properties within 1000 feet of the garden, and that the impact increases over time. We find that gardens have the greatest impact in the most disadvantaged neighborhoods. Higher quality gardens have the greatest positive impact. Finally, we find that the opening of a garden is associated with other changes in the neighborhood, such as increasing rates of homeownership, and thus may be serving as catalysts for economic redevelopment of the community.” (From the article Abstract, available at the Social Science Research Network: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=889113).
  24. Cal. Civ. Code § 3482.
  25.  Alameda County Right to Farm, Alameda County Planning Department, http://www.acgov.org/cda/right_to_farm.pdf.
  26.  Matthew Wacker, Alvin D. Sokolow and Rachel Elkins, County Right-to-Farm Ordinances in California: An Assessment of Impact and Effectiveness, AIC Issues Brief, University of California Agricultural Issues Center, Number 15, May 2001.
  27.  Alameda County General Ordinance Code §6.28.070 Right to Farm Restrictions.
  28.  Alameda County General Ordinance Code §6.28.020: “This chapter is to promote a good neighbor policy between agricultural and nonagricultural property owners by providing owners of property adjacent to or near agriculture operations a forum to discuss problems resulting from agricultural operations including, but not limited to, the noises, odors, dust, chemicals, smoke and hours of operation that may accompany agricultural operations. It is intended that, through a discussion forum, property owners will understand the impact of living adjacent to or near agricultural operations and be prepared to accept attendant conditions as the natural result of living in or near rural areas and agricultural operations.”.