Chapter 6.2
Food Security and Sovereignty

• ALL
• Remove Code Barriers
• Create Incentives
• Fill Regulatory Gaps

Agrarian Trusts and Right of First Refusal

INTRODUCTION

“When you’ve got 400 quarts of greens and gumbo soup canned for winter, nobody can push you around or tell you what to do.” - Fannie Lou Hamer

Nearly four in ten Black and Latinx families face food insecurity, making access to healthy, affordable food a major issue for millions of people.[1] Food insecurity has been exacerbated by the COVID-19 pandemic and growing poverty across the US.[2] At the same time, more than 95 percent of farmers across the US are white, and farmland is becoming more concentrated as land is acquired by large companies.[3] Using 40 years of US Department of Agriculture data (USDA), the Union of Concerned Scientists found that cropland consolidation affects midsized farms and Black farmers most profoundly.[4] “Consolidation has had troublesome consequences for many rural communities. It has come primarily at the expense of midsize farms, which have historically been the economic backbone of these communities. It has reduced opportunities for new farmers, who have become increasingly rare—and this has hit Black farmers, already fighting an uphill battle against multiple barriers imposed by structural racism, especially hard,” the Union wrote in 2021.[5]

Land ownership was a priority for many freed African Americans after the Civil War.[6] By 1920, African Americans made up 10 percent of the US population but represented 14 percent of farm owners in the American South.[7] African Americans continued to make strides during the Reconstruction-era, establishing schools, reuniting with relatives separated during the war, and recording marriages. These gains were short lived, however, as the era of Jim Crow segregation— a time of racism and reactionary retreat—created a system of racial apartheid and erased many of the economic and political gains for African Americans in the years following the Civil War.[8] African Americans lost roughly 90 percent of their farmland between 1910 and 1997, a staggering loss.[9] Because ownership of land and homes is a way of preserving intergenerational wealth regardless of race and ethnicity, this loss of land previously held by African Americans contributes to a racial wealth gap in the US where Black families now have roughly one-eighth the wealth of white families today.[10]

Examining the full scope of involuntary land loss by Black families is a complex subject beyond the scope of this paper but in brief, the use of racial covenants, partition laws, and racial zoning restricted where and how African Americans and other historically marginalized racial and ethnic groups could acquire and dispose of property in the US.[11] While explicit forms of de jure racial discrimination in land use have been held unconstitutional, the legacy of de jure discrimination still lingers as facially neutral de facto forms of discrimination persist today.[12] De jure racial discrimination is intentional government action—through law and public policy—to segregate and treat citizens differently based on race.[13] As Richard Rothstein posits in The Color of Law: “Racially discriminatory government activities did not end fifty years ago. On the contrary, some have continued into the twenty-first century.”[14] One example of de facto discrimination that continues today are inequalities in access to government loans and benefits. Recent studies show persistent racial disparities in “federal (and state) agency distribution of grants, loans, and licenses” despite the elimination of de jure discrimination in policies and laws.[15]  The US Department of Agriculture continues to face “claims of systemic racism, whereby minority loan applicants . . . faced patterns of underfunding and even loan denial.”[16] Exacerbating this issue, farmers of color have fewer avenues for redress, given the 1983 decision by the Department of Agriculture to disband its Office of Civil Rights and stop responding to claims of discrimination.[17] The USDA’s Office of the Assistant Secretary for Civil Rights (OASCR) has since reopened but faces calls for reform given, “its poor record on combating discrimination and harassment…at least partly attributable to the structure, management, and operations” within the agency.[18]

The laws of intestate succession which determine the distribution of land when someone dies without a will contribute to involuntary loss and racial wealth disparities as well.[19] Since many African American land owners of generations past died without wills, their property was conveyed to heirs by the laws of intestate succession, which in many states provides that each heir owns the entire property in common as an undivided whole.[20] If the heirs in common do not change the deed to reflect that they own it, the property remains in the name of the deceased, creating what is known as a “cloudy title.”[21] After multiple generations, when there are sometimes 20, 30, 50, or more heirs who are owners in common, it becomes complex, if not impossible, for the heirs to get an unencumbered title and enjoy the full benefits of the land.[22] “Heirs’ property owners with cloudy title cannot use the property as collateral for a mortgage or loans for farm operating expenses or equipment, and cannot access government programs that require proof of ownership of land, including Farm Service Agency loans, USDA programs, or FEMA disaster recovery and relief assistance,” reports the Center for Agriculture & Food Systems.[23]

Yet another issue is that ownership of farmland is rapidly consolidating across in the US. An estimated 371 million acres (roughly 40 percent of all farm and ranchland in the US) are projected to change hands over the next 15 years.[24] Exemplifying this trend of land transfer and consolidation is Bill Gates, one of the wealthiest people in the world and owner of approximately 242,000 acres of farmland—making him the largest owner of private farmland in the US.[25] As investors buy farmland, the price per acre continues to rise.[26] The United States cropland value averaged $4,420 per acre in 2021, an increase of $320 per acre (7.8 percent) from the previous year.[27] The price of cropland has increased by roughly 40 percent since 2007—from an average of $2,530 per acre to $4,420 per acre in 2020.[28]

The sharp increase in cost for farmland has become a major barrier for smaller farmers looking to secure land.[29] “As the value of farmland has skyrocketed, small-scale and beginning farmers have been priced out from purchasing their own land or even affording leases. In the absence of smaller buyers and lessees, the largest, wealthiest operations have been able to hoard land,” writes Hannah Packman, the National Farmers Union Communications Director.[30]

Because many farmers are priced out of purchasing farmland, alternative land ownership models that allow independent farmers and those otherwise excluded from land access a chance to acquire farmland through collectivist ventures are expanding.[31] Collectivist agricultural models in the U.S. often take the form of a community, non-profit organization that owns the land in trust, and offers long-term leases to independent farmers and non-profit organizations that support different goals, including: sustainable farming practices, providing affordable, healthy food to underserved communities, and promoting land access for women and farmers of color.[32]

One example of this model in practice is The Agrarian Commons, which presents an opportunity for community groups to collectively purchase and work the land together.[33] An Agrarian Commons is a nonprofit landowning entity that is governed locally by an elected board with the goal of preserving farming, farmland, and localized food systems.[34] One example of an Agrarian Commons in practice is the Little Jubba Agrarian Commons in Maine, where immigrant Somali Bantu farmers came together to purchase agricultural land.[35] Individually the farmers were unable to afford the farmland, but by establishing an Agrarian Commons, they were collectively able to make the purchase.[36] To be clear, Agrarians Commons are not owned by any individual or family; they are jointly managed and stewarded by those who have a stake in the land.[37]

Agrarian Commons build upon a well-established tradition of community land trusts (CLTs), which are dedicated primarily to creating affordable housing below market rates.[38] Agrarian Commons are “a new model of land ownership for local communities.”[39] Each Agrarian Commons is a community land trust (501(c)(2) organization) and subsidiary of the national Agrarian Trust (501(c)(3) organization)[40]; Agrarian Trust is a national nonprofit organization whose purpose is to support land access for next generation farmers.[41] Each Agrarian Commons “holds agricultural land in and for a local community, issuing long term, equitable leases to farmers for regenerative, diversified food production for the local community.”[42] The leadership of each commons is governed by a board of directors consisting of farmers who are leasing from the commons, community stakeholders, and Agrarian Trust representatives.[43] Removing agricultural land from sale and speculation is crucial to giving independent farmers and community groups land access since about 60 percent of farmland is leased in the US (much of it on a yearly basis) which allows the leaseholder to regularly raise prices on farmland.[44]

Presented here is a proposal that local governments can use to encourage land transfer to community organizations and non-profits that support racial equity in farming, sustainable agriculture, and providing healthy, affordable foods to areas in food deserts. The Agrarian Commons, is a modest step to help address food insecurity, land loss, and close the racial wealth gap. It is one model, and by no means the only project seeking to address the myriad issues associated with unequal land access in the U.S. While not a panacea, elected officials should consider the many benefits Agrarian Commons and similar projects provide, including access to a source of healthy, fresh food, a place for education and community building, and income for those who have a stake in the collective work. In the case of Little Jubba, the families tending the community plots do not grow for income or profit but are able to feed themselves and “give crates of beans, corn, tomatoes and squash to friends and families in Massachusetts, New Hampshire, and upstate New York.”[45] Importantly, their land has been used as a space for cultural practice and community gatherings as well.[46] Agrarian Commons can also be used to educate the community through service learning, summer camps, and classes.[47]

Local governments can adopt policies to promote land acquisition by Agrarian Commons, which have a mission of “sustainable food production, ecological stewardship, community vitality, and equitable land access for the next generation of farmers and ranchers.”[48] Local governments can give independent farmers and community members who form Agrarian Commons, or similar organizations, “first right of refusal” when agricultural land goes on the market.[49]

Examples of right of first refusal in agricultural land sales are limited, but instructive.[50] For example, in Iowa and Minnesota, the first right of refusal is limited to people, excluding nonprofit lessees (such as Agrarian Commons).[51] Towns and cities can expand upon right of first refusal laws in agricultural land sales to include qualified non-profits (like Agrarian Commons). This would greatly expand the number of potential buyers who will keep land in the hands of community members and independent farmers. A right of first refusal for qualified non-profits exists in the residential context, in San Francisco (discussed in more detail below), which gives qualified nonprofits a chance to purchase residential housing before developers.[52] The initiative has been modestly successful in helping to expand affordable housing stock.[53] Local governments have an opportunity to stake out an important position by combining existing laws: tenant opportunity to purchase acts (as seen in Washington, DC, for residential units, also discussed below) and in agriculture sales (in Iowa and Minnesota) with a community non-profit opportunity to purchase ordinance as seen in San Francisco. The examples below flesh out local options to implement this form of Agrarian Commons.

EFFECTS

The USDA defines food insecurity as “a household-level economic and social condition of limited or uncertain access to adequate food.”[54] This condition can lead to hunger and malnutrition—a growing problem exacerbated by the COVID-19 pandemic.[55] Feeding America, the largest hunger-relief organization in the US, estimates that roughly 60 million people turned to food banks, food pantries, and other private food assistance programs in 2020, the first calendar year of the COVID-19 pandemic—a 50 percent increase from the prior year.[56] “Household food insecurity was the most commonly reported hardship, disproportionately affecting lower-income families and Black and Hispanic communities at nearly twice the rate of white adults,” writes Luz Mercado in a 2021 article.[57] While increasing community gardens[58] (see the SDC’s brief on Community Gardens on Private Property as a By-Right or Permitted Use) and Agrarian Commons will not eliminate food insecurity on its own (for additional food security and sovereignty strategies see SDC’s chapter Food Security and Sovereignty), they are valuable tools that produce many public benefits, including access to a greater variety of healthy, fresh, and affordable fruits and vegetables.[59] In fact, one California study found that participants doubled their intake of fruits and vegetables when working at a community garden.[60] Another study in Michigan surveying urban adults found that community gardeners on average consumed 1.4 times more fruit and vegetables than non-gardeners and were 3.5 times more likely to consume fruits and vegetables at least five times per day.[61] Aside from these health benefits, the CDC reports that community gardens may also “decrease violence in some neighborhoods, and improve social well-being through strengthening social connections.”[62]

Beyond the studies and data are people who feel empowered by increased autonomy and access to land that for many BIPOC communities has been difficult or impossible to access.[63] In 1920, there were nearly one million Black farmers in the US.[64] Today, there are roughly 45,000.[65] The sharp reduction in Black farmers and loss of agricultural land owned by Black families occurs as more than 5 percent of Americans live in food deserts.[66] Food deserts are defined by the USDA as a “low-income tract where a substantial number or substantial share of residents does not have easy access to a supermarket or large grocery store.”[67] Some scholars and activists believe “food apartheid” is a more accurate way to label and understand this issue.[68] Food apartheid, “is a system of institutional racial segregation and discrimination,” according to Nina Sevilla in a 2021 article on the subject.[69]

The Central Virginia Agrarian Commons is a BIPOC-led commons that “supports BIPOC control of land for building resilient regional food systems.”[70] The commons in Central Virginia holds “urban and rural farmland to address food production and aggregation/distribution needs of BIPOC farmers in the region.”[71] For board members and activists involved in this project, this represents an opportunity for BIPOC communities to gain access to land and begin to address historic inequalities.[72] “Who has the decision-making power over land? Black and brown people are usually on the wrong side of that disparity. For an organization to step in and say, ‘Hey, we're going to raise money to ensure that communities that have been historically marginalized are able to activate strategies for self-determination on land’ is very important,” said Duron Chavis, activist and board member of the Central Virginia Agrarian Commons.[73]

Though not part of the Agrarian Commons Alliance, Soul Fire Farm in upstate New York is another farm attempting to fight racism and inequality in food systems and improve land access.[74] Soul Fire is an “Afro-Indigenous centered community farm committed to uprooting racism and seeding sovereignty in the food system.”[75] Soul Fire’s educational programming and volunteer events have been able to reach 10,000 people per year, including farmer trainings for BIPOC individuals.[76] The farm also makes free food deliveries known as “solidarity shares” directly to people living under food apartheid in the Albany-Troy area of New York State.[77] Soul Fire Farm incorporated as a 501(c)(3) nonprofit in 2016 and has helped foster the Northeast Farmers of Color Land Trust, “a hybrid model land trust, bringing together a community land trust model and a conservation land trust model to reimagine land access as well as conservation and stewardship of communities and ecosystems with the goal of manifesting a community vision that uplifts global Indigenous, Black, and POC relationships with land, skills, and lifeways.”[78] The Northeast Farmers of Color Land Trust aims to “acquire 2,000+ acres of land in the next five years through land return, donation, rematriation, and purchase; and connect farmers to land through facilitating up to 50 leases during this period.”[79] The important work of groups like Little Jubba, Central Virginia Agrarian Commons, and Soul Fire Farm are all examples of the important work that local governments could be supporting.

EXAMPLES

To ameliorate food insecurity and lack of access to land by BIPOC communities, local governments could foster Agrarian Commons formations with “right of first refusal laws,” which have historically been used to promote affordable housing and anti-displacement.[80] Giving right of first refusal to Agrarian Commons and qualified community farms would help promote the proliferation of these organizations and the myriad community benefits they provide. While this is a new concept as applied to Agrarian Commons, it is not unprecedented. Similar legislation already exists to support a tenant’s right to purchase their unit before it is listed on the market.[81] Commonly known as a tenant opportunity to purchase act (“TOPA”), Washington, DC, passed a similar law decades ago, giving tenants first right of refusal to purchase as a matter of law.[82] San Francisco extends a similar right to qualified nonprofit organizations dedicated to preserving affordable housing.[83] In agricultural leases, Iowa and Minnesota grant farmers first right of refusal and an opportunity to purchase when the land they farm is for sale.[84]

Below are examples illustrating how local governments use TOPA and first right of refusal laws to improve affordable housing options and give farmers a chance to own the land they farm. While we were unable to find existing legislation as it pertains to Agrarian Commons, local governments can look to these examples to make land more affordable and accessible for Agrarian Commons, community gardens, and urban farms.

Examples of Right of First Refusal

Residential

San Francisco

Responding to a severe affordable housing crisis, San Francisco passed the Community Opportunity to Purchase Act (COPA) in 2019.[85] This was passed to combat “an affordable housing crisis, in no small part due to speculators purchasing buildings containing naturally occurring affordable housing units, evicting the tenants, remodeling, and re-renting the units at substantially higher rental rates.”[86] To help address this issue, San Francisco extended the right of first offer and first refusal, for all residential buildings with three or more units and related construction sites and vacant lots in the city, to qualified nonprofits.[87] While San Francisco continues to have a severe and growing housing issue, this program has shown modest success by “preserving 28 buildings containing 205 residential units and 13 commercial spaces” (as of January 2019).[88] The purpose of COPA is to give nonprofit organizations that promote and preserve affordable rental housing the ability to match offers on multifamily residential buildings.[89] “COPA is intended to complement existing anti-displacement and preservation programs administered by [the] Mayor’s Office on Housing and Community Development (MOHCD), particularly the Small Sites Program and the PASS program.”[90]

The City of San Francisco created a variety of requirements to qualify for COPA, including being a bona fide nonprofit exempt from federal taxation that has an organizational commitment to providing affordable housing to low- and medium-income residents and preventing the displacement of such residents.[91] As of this writing, San Jose, California,[92] and New York City[93] were considering adopting a community opportunity to purchase act, which, as in San Francisco, would allow qualified nonprofits the right to purchase property before developers and other private buyers if they promote the creation of affordable housing. COPA’s like these provide a model that local governments can use to define which “qualified nonprofits” (i.e., Agrarian Commons and community farms) would get first right of refusal and/or first opportunity to purchase.

To view the provision, see: S.F. Ordinance No. 79-19.

Washington, DC

An early example of a TOPA was in Washington, DC. Responding to a housing crisis in which apartments were being converted to condominiums and a lack of affordable housing in the District, the city council decided to give “a tenant or tenant organization . . . a right of first refusal during the fifteen days after the tenant or tenant organization receives notice that the owner is selling the building.”[94] Before selling the property to an outside party, the owner must give the tenant an opportunity to purchase the property at a price and terms that represent a “bona fide offer of sale.”[95] The tenant or tenant organization has a right of first refusal during the 15 days after receiving a valid sales contract from the owner indicating contract to purchase by a third party.[96] Washington, DC’s TOPA law was amended on July 3, 2018, to exempt most single family dwellings, unless the unit is occupied by an elderly or disabled resident.[97] This exemption substantially undermines the TOPA’s objective in providing affordable housing, but the DC Department of Housing and Community Development claims that because of this law, 1,000 units have been preserved as affordable housing since fiscal year 2002.[98] About 5 percent of former renters ended up purchasing properties they live in.[99] DC’s TOPA law is a model that could be applied in agricultural settings, where current tenants/lessees are given first opportunity to purchase the land they are using for agricultural purposes.

To view the provision, see: DC Law 3-86, the “Rental Housing Conversion and Sale Act of 1980.”

Massachusetts

Similar to Washington, DC, Massachusetts is considering creating enabling legislation on a state level that “would allow cities and towns the local option of providing tenants in multi-family buildings the right to match a third-party offer when their homes are being sold.”[100] The proposed legislation provides that an owner of a residential building must “notify the municipality and each tenant household, in writing by hand delivery and United States’ mail, of the owner’s intention to sell the property (including entertaining an unsolicited offer from a third-party to purchase the property), with copy of the municipality’s prepared summary of the ordinance.”[101]

Once the owner of a residential building executes a purchase contract with a third party, they are required to submit a copy of the contract within seven days to a tenant association, or its successor, or designee.[102] A tenant association, its successor, or designee can then exercise its right to purchase the property within 30 days after the receipt of the third-party purchase agreement.[103]

To view the provision, see: Mass. H.3017.

Agricultural

As of now, we have been unable to find right of first refusal for tenants in an agricultural context. But included below are how they are used now. States or cities interested in extending right of first refusal for benefit of the tenant can use these as a template, or framework to extend the same right to collectivist farming ventures, like Agrarian Commons.

Iowa

In Iowa, before recording a sheriff’s deed to agricultural land, the grantee recording the deed must notify the mortgagor of their right of first refusal.[104] The grantee must record the sheriff’s deed “within one year and sixty days from the date of the sheriff’s sale.”[105] If after recording the deed, the grantee wants to “sell or otherwise dispose of the land in a transaction other than a public auction” the grantee must first offer the mortgagor the opportunity to repurchase the agricultural land “on the same terms and at the same price that the grantee proposes to sell or dispose of the agricultural land.”[106] Even if the grantee wants to sell the land at public auction, the mortgagor must still be given sixty days’ notice of the sale, including the date, time, place, and procedures of the auction sale—as well as any minimum terms of limitations imposed on the auction.[107]

To view the provision, see: Iowa Foreclosure of Real Estate Mortgages, § 654.16A.

Minnesota

Similarly, in Minnesota, “A state or federal agency, limited partnership, corporation, or limited liability company may not lease or sell agricultural land or a farm homestead before offering or making a good faith effort to offer the land for sale or lease to the immediately preceding former owner at a price no higher than the highest price offered by a third party that is acceptable to the seller or lessor.”[108] This law applies to sales or leases where the seller or lessor, “acquired the property by enforcing a debt against the agricultural land or farm homestead, including foreclosure of a mortgage, accepting a deed in lieu of foreclosure, terminating a contract for deed, or accepting a deed in lieu of terminating a contract for deed.”[109]

To view the provision, see: MN Right of First Refusal for Agricultural Land § 500.245.

Agrarian Commons

Local governments can apply right of first offer and first refusal to Agrarian Commons and non-profits with similar missions by granting a first opportunity to purchase agricultural land to organizations that advance the mission of giving more low-income farmers and farmers of color access to land. This can be achieved both through an opportunity to purchase the land (like DC giving tenants an opportunity to purchase, and in Iowa and Minnesota for agricultural land), and a right of first offer and first refusal for qualified nonprofits and agrarian trusts (like the San Francisco ordinance). In either approach, local governments have a workable model to promote the conveyance of land to low-income communities, communities of color, and those otherwise excluded from cultivating, accessing, and owning agricultural land.

Most Agrarian Commons are organized as nonprofit 501(c)(2) community land trusts, but in some instances, with multiple organizations, are organized in the form of a nonprofit 501(c)(25).[110] Legislators should establish regulations for which nonprofits (whether 501(c)(2), 501(c)(25), or others) qualify when drafting proposed legislation that supports the sale of land to agrarian trusts. Other qualifiers could be a commitment to expanding farming and economic opportunities for communities of color, sustainable farming methods that improve wildlife habitat and water quality, and producing healthy foods for “direct, local, and regional consumption.”[111]

ADDITIONAL EXAMPLES

All the examples above involve placing limitations on private conveyance of land. Local governments may also consider regulations on conveyance of tax-delinquent properties that are held by land bank corporations. In New York State, enabling legislation under Article 16 of New York’s Not-For-Profit Law empowers local communities to create charitable, not-for-profit corporations whose goal is to acquire “vacant, abandoned, and tax-delinquent properties” and return them to productive use by turning “vacant spaces into vibrant places.”[112] Under this law, local governments acquiring vacant, abandoned, and tax-delinquent properties through land bank corporations can enact legislation to encourage local, bona fide nonprofits (like Agrarian Commons) to acquire land by ensuring that they are headquartered within their jurisdiction. This will help ensure that only local organizations that have a real stake in the community benefit from purchasing tax-delinquent properties. Local governments that seek to promote Agrarian Commons and community gardens can use a combination of location restrictions (as seen in Albany, NY, and Detroit, MI) and use restrictions (as seen in Baltimore) to ensure that qualified nonprofits rooted in the community are given first right of refusal, or exclusive right to purchase from land bank corporations. Below are a few examples of how some cities have used geographic qualifiers to ensure residents are allowed to purchase vacant lots.

Albany, New York’s Residential Side Lot Program: (Giving local homeowners the chance to purchase a vacant lot that is adjacent to their residence).[113]

Detroit, Michigan’s Side Lot Program: (Giving homeowners the exclusive right to purchase a vacant lot directly to the left, right, rear, or diagonally behind a homeowner’s residence for 180 days).[114]

Baltimore, Maryland’s “Adopt-A-Lot” Program: (Giving “any Baltimore City resident, civic or non-profit organization, school group, business or neighborhood group” that is committed to caring for a vacant lot to “adopt a lot” for free from the city of Baltimore.”).[115]