Chapter 6.2
Food Security and Sovereignty

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

Community Gardens on Private Property as a By-Right or Permitted Use

INTRODUCTION

Community gardens are defined as garden plots where a group grows and cares for plants for the purpose of consumption, neighborhood beautification, or education.[1] This brief discusses such gardens that are located on private property. Community gardens on private property may be sponsored by local governments, funded by a private investor, or community started and supported in a grassroots fashion.[2] In addition, they may have different rules regarding citizen participation in the garden, such as those designed for after-school programs.[3] Community gardens in this context should be distinguished from community farming or community supported agriculture; the former is usually a small scale operation based around traditional gardening principles, while the latter is often a larger operation that utilizes modern growing practices designed to garner high crop yields with greater ambitions regarding their place in the food supply.[4]

One of the major barriers to promoting and instituting community gardens on private land has been zoning regulations that limit the permissible areas for these gardens.[5] Adopting ordinances that classify community gardens as permitted or by-right uses removes regulatory barriers and can promote the local health, environment and economy of neighborhoods while creating cooperative environments.[6] Doing so also provides more flexibility to local governments looking to enrich their community involvement and overall heath through sustainable methods of food production (for ordinances exploring other agricultural uses on private property see Temporary Farm Stands; Keeping Fowl in Urban and Suburban Locations; Fruit Trees in Landscape Requirements; Front Yard Gardening in Residential Districts; Permit Commercial Agricultural Activities in Urban/Suburban Areas and Allow Them to Satisfy Open-Space Requirements; Bees in Urban and Suburban Districts).

Ordinances permitting community gardens on private property are multifaceted. Some  local governments have included provisions in these ordinances limiting the types of agricultural activities that can be undertaken (for example, growing fruits and vegetables), requiring that water be available on site, setting regulations pertaining to community garden structures, establishing a fair and open process for access and farming in the community garden, and limiting farming methods to organic only.[7] Other rules set requirements for operating hours, maintenance, security, and the governing structure for how the garden operates.[8]

Local governments should take note that the character and desires of the surrounding community should be considered before enacting laws that promote community gardens. Concerns and disagreements over the garden’s purpose, gentrification, or a change in neighborhood character must be addressed lest community gardens end up causing fractures within communities.[9] Ordinance codes permitting community gardens by-right often contain some mix of the following: a mechanism to establish and enforce rules for use of the garden,[10] a method for establishing quality soil to grow in,[11] a system to regulate the use of chemicals such as insecticides and fertilizers,[12] indemnification for owners and governing entities,[13] and regulations for the sale or distribution of any garden produce.[14]

EFFECTS

Regulations that permit community gardens on private land in all zoning districts may increase the overall health, physical fitness, and well-being of the community population.[15] Studies have shown that gardening leads to increased physical activity in both women and men.[16] Additionally, the nutritious food being grown in the garden will provide access to healthier options for residents who may not otherwise have such access and help to encourage healthier eating habits among those who assist in the gardening.[17] It has been shown that adolescents are more likely to eat vegetables or other foods that they otherwise may not have tried when they participate in the gardening process.[18]

In addition to providing access to fresh produce community gardens create opportunities for neighborhoods to interact and work together, which has many residual benefits that support implementing community gardens in all zoning districts. For example, community gardens on private land can help foster a sense of togetherness among neighbors while improving neighborhood spaces. Youth may further benefit from participating in a stimulating outdoor activity, which in turn may help increase positive behavior by directing energy towards a productive outlet.[21] This may be particularly helpful in areas where there is a greater lack of access to fresh food, few affordable extracurricular activities, and often no green space.[22]

Aesthetically, community gardens may help beautify and improve the overall look and feel of their communities.[23] Permitting community gardens on private property in urban and industrial districts can help reduce blighted properties, enabling owners to lease vacant or abandoned lots for use as gardens where there otherwise would be an unused property.[24] Improvements to the visual aesthetics of local communities may also help improve cognitive function and overall well-being of children and adults alike.[25]

EXAMPLES

Fitchburg, WI

Fitchburg authorizes the establishment of community gardens in all of its zoning districts.[26] Such gardens must be headed by either a nonprofit organization or a community-based group that is willing to oversee the operation.[27] Plantings in community gardens are limited to “fruits, vegetables, herbs, plants and flowers.”[28] The site must have an adequate supply of water to sustain all gardening activity.[29]

Additional structures to support the gardening operation are allowed.[30] Storage sheds of 100 square feet or less may be installed, but must comport with applicable setback rules.[31] Sheds are also limited to 15 feet in height.[32] Except where specifically allowed in the R-D Rural Development and A-X/A-T Agricultural districts, hoop houses and greenhouses require a conditional use permit and must adhere to the dimensional standards of the relevant zoning district.[33]

In gardens sponsored by the city, interested gardeners go through an application process to gain access to a maximum of two plots for a fee of $25 per plot.[34] Gardeners on these sites must maintain their plot and must not allow nuisances such as weeds to develop.[35] Organic methods must be employed where feasible and gardeners are to provide the city with “a general description” of the quantity and type of chemical treatments used in city gardens.[36] Nuisances such as water runoff are prohibited, and Fitchburg retains the right to require gardeners to take remedial action or may reclaim the plot.[37] The city may not be held liable from injuries arising from garden use or consumption of garden produce.[38]

To view the provision see Fitchburg, WI, Code of Ordinances § 22-6(d) (2010).

Highland Park, MI

Highland Park supports the practice of urban gardening, finding that it promotes food independence and security for its citizens, provides opportunities for entrepreneurs, and addresses the problem of blighted or unused property.[39] Regulations are in place to protect the well-being of residents, preserve property values, and help prevent groundwater pollution.[40] The use of organic growing practices strongly encouraged.[41]

The city allows community gardens in all zoning districts,[42] as well as “market gardens” and “community supported agriculture” sites (CSAs) in its R-UV and MU-UV districts.[43] The code defines a CSA as a “farmer to consumer arrangement” created in response to local growers losing their market share to large-scale operations whose products are shipped in, and also cites to the USDA’s definition which emphasizes a tradeoff where the community agrees to cover a farm’s operational costs in exchange for a share of the harvest.[44] It is expected that farmers are to be the primary figures in CSAs; they are expected to do most, but not all, of the organizing, managing, and labor for the CSA.[45] Hoop houses and temporary netting or fencing are allowed as accessory uses.[46] The city prohibits commercial transactions on site.[47]

The Community Gardens provision sets forth requirements for establishing a community garden in any of the city’s districts.[48] While community gardens are permitted, they must conform with the code’s additional standards.[49] For example, community gardens may not interfere with, or encroach upon, any setback area requirements of the parcel on which they are located.[50] Additionally, the property owner of the parcel where the community garden is located must give written permission to those sharing the use of the garden, which the users must keep on file.[51] Like CSAs, the ordinance allows for temporary fencing or netting to be put up in or around the garden without obtaining a permit.[52]

To view the provision see Highland Park, MI, Code of Ordinances §1229 (2011).

Chicago, IL

Chicago permits community gardens in every zoning district except their Cemetery and Manufacturing Zones.[53] Community gardens are defined as those that are developed in neighborhoods with “the primary purpose of providing space for members of the community to grow plants for beautification, education, recreation, community distribution or personal use.”[54] Any storage of plants or plant products on site that is not designed for the use of composting is forbidden.[55] Tools and supplies may be stored in a shed on site so long as the shed is in compliance with the relevant code section.[56]

Gardens may be no larger than 25,000 square feet, with the exception of gardens located in Park and Open Space district numbers one and two, which have no size limitation.[57] Accessory structures (i.e., hoop houses, greenhouses, and farm stands) may be erected so long as they comply with other relevant code sections.[58] Hoop houses must be attached securely and comply with applicable standards of the city’s building code.[59] Finally, while sales are allowed from the community gardens, they are limited to incidental sales of plants or produce generated on site.[60] Limiting sales ensures that the gardens serve the community as their primary beneficiary, and do not convert into makeshift farm stands or farmers markets—which are permitted in fewer districts than community gardens under the Code.[61]

To view the provisions see Chicago, Ill., Zoning Ordinance and Land Use Ordinance, §§ 17-2-0207, 17-03-0207, 17-4-0207, 17-5-0207, 17-9-0103.5(A-B), 17-17-103(F)(1) (current through 2020).

ADDITIONAL EXAMPLES

Pueblo, CO, Code of Ordinances § 17-4-13 (2011) (allowing community gardens by-right subject to additional regulations).

Peters Township, PA, Zoning Ordinance, § 440.601(Community Garden)(A-F) (2017) (permitting community gardens in all zoning districts and providing details for a site plan application requirement, as well as maintenance, structure, and fencing requirements).

Banning, CA, Code of Ordinances §§ 17.08.202(A-B) (2017) (allowing community gardens in all districts but requiring the following: “governance structure of the garden, hours of operation, maintenance and security requirements and responsibilities; a garden coordinator to perform the coordinating role for the management of the community garden; and…[assignment of] garden plots in a fair and impartial manner").