Chapter 1.3
Sensitive Lands and Wildlife Habitat

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

Subdivision Set-Asides for Agricultural Farmland

INTRODUCTION

Agricultural farmlands are critical for the production of food and the raising of livestock.^[1] In addition, they are central to many rural economies.^[2] However, farmland across the U.S. is threatened by non-farm development that focuses on residential, commercial, and industrial growth.^[3] Since 2001, developers and others have been permitted to convert over 11 million acres of agricultural land to non-farm development.^[4] Over 38 percent of the agricultural land that has been converted is considered “prime farmland” (for our brief specifically discussing the loss of land containing prime soils see Development Restrictions to Protect Prime Soils; for our brief containing ordinances requiring offsets for the loss of prime farmland see Offsetting Agricultural Land Loss Stemming from New Development; and for our brief concerning Agricultural Lots in Planned Unit Developments (PUDs)).^[5] Whenever farmland is converted to non-farm development, potential food production, wildlife habitats, associated ecosystem services, and open spaces are permanently lost as non-farm uses are rarely returned to agricultural uses.^[6]

To help stem the loss of farmland, numerous local governments have passed subdivision regulations that seek to reserve land for food production. As part of the subdivision regulations, local governments may require or allow subdivision developers to set aside land for food production—often with incentives such as density bonuses as described below in the examples. Codes can require the developer to include some form of food producing entity (e.g., a farm, orchard, community garden, livestock operation, etc.) in any pre-approved subdivision plan or encourage such inclusion by granting incentives.^[7]

A common mechanism to include set-asides is to require subdivisions to cluster development (for a broader discussion of cluster development not limited to agricultural lands see Cluster/Conservation Subdivision in Rural/Urban Area). Cluster development ordinances allow for development on lots when that development is grouped in a smaller section of the lot, leaving space for agriculture or open space. Local governments may offer density bonuses to developers who meet certain criteria regarding how they structure subdivision plats and whether they increase density in some areas while leaving other areas open.[8]

Local governments may also require a deed restriction, easement, or covenant to ensure the open space remains as such or as agricultural land in perpetuity.[9] Alternatively, local governments may require the deed restriction, easement, or covenant be granted to a trust or organization to oversee the land.[10] A method to ensure maintenance of the land should be secured before final subdivision approval is granted to developers.[11] To ensure the long-term sustainability of the farmland, local governments should be cognizant of how the lands will be used in the future and who will maintain them.

Some local ordinances broadly define what is permitted in the open space subdivision areas. They do so by redefining terms such as “food production,” “agricultural use,” or “farm” to allow a variety of uses including community gardens and orchards as well as traditional farming.[12] Finally, these ordinances often address potential nuisance-based actions from neighbors by requiring the agricultural uses to be the least burdensome to the surrounding area.[13] This is particularly important for these ordinances as they are often applicable in the urban-rural divide, where agricultural uses abut residential uses and the potential for nuisance claims exists.

EFFECTS

Subdivision regulations that encourage or require the setting aside of land for food production can help mitigate the negative effects stemming from the conversion of farmland to non-farmland. When farmland is converted to non-farm development and when land is re-zoned from agricultural to residential use, the price per acre and property taxes often rise.^[14] This makes it difficult for farmers to stay or move to the area and to be profitable.[15] For example, Missoula, Montana has seen prime farmland converted to non-farmland.^[16] Such conversion has increased the cost of land per acre to $150,000.^[17] Many local Missoula farmers do not have the financial resources to afford or the ability to make a profit from land purchased at $150,000 per acre.^[18] This shift in value when exploring alternative uses provides a significant financial incentive for landowners and developers to subdivide large lots and build residential housing.^[19] Regulations that permit subdivisions and encourage the setting aside of land for food production provide an alternative that gives landowners and developers an opportunity to maximize the value of their land, while not losing critical agricultural lands.

Subdivision regulations that set aside land for food production also prevent nuisance issues that could arise between farms and nearby non-farm uses.^[20] Residential and agricultural uses can devolve into poor neighbor relations because of the “noise, dust, odors, chemical sprays and slow-moving machinery” utilized in food growing operations.^[21] In addition, “farms are subject to trespassing, vandalism, and complaints from nonfarm neighbors.”^[22] By permitting subdivision regulations that encourage the setting aside of land for farms, individuals purchasing homes in the subdivisions are informed that they are purchasing a home near an active farm. In addition, they may be included in the farm activities, which may reduce nuisance actions.^[23]

Setting aside land for food production can also create a sense of connectedness between the surrounding homeowners and the food they consume.^[24] By permitting food-producing land in close proximity to residential homes, the community may get a better understanding of where its food comes from. Not only is the surrounding community interacting with the food production process, it may reap the benefits associated with living close to a food source if the farms are producing food that is sold at local farmers markets, farm stands, or through community-supported agriculture (CSA).[25]

Lastly, setting aside land for food production can help revitalize and support local food production. Since 2007, the number of new farmers has decreased about 20 percent.^[26] The combination of subdivision development and preservation of land for food production may help increase or maintain the options available to encourage farming.^[27]

EXAMPLES

Watertown, WI

Watertown offers a 42 percent density bonus to developers who subdivide lots with the purpose of preserving or connecting open space, including agricultural land.[28] Bonuses are eligible in the agricultural or agricultural/residential zones as set out in the town’s comprehensive plan.[29] To be eligible, the plot must have a minimum size of 35,000 square feet.[30] No more than 50 percent of the lot may be developed, and all residential uses such as structures and roads must be within that area.[31] Developed property must be designed so as to minimally disturb the surrounding environment (e.g., wetlands, floodplains, and steep slopes), and all utilities must be buried.[32]

A deed restriction has to be utilized to prevent both further plat subdivisions and perturbation of the open space.[33] The agricultural layout must also provide maximum protection to surrounding sensitive habitats, with preference given to wetlands, flood plains, and steeply sloped areas.[34] Watertown requires that the open space be “a large scale, single, contiguous, and interconnected block with logical, straightforward boundaries.”[35] Ownership of the land must be conveyed to lot owners either by a homeowners association or in fee simple with each owner possessing an equal undivided interest.[36] Alternatively, the land may be conveyed to a land trust or conservation group.[37] Before final approval is given to a plot, a mechanism that ensures maintenance of the food-growing space should be in place.[38]

To view the provision see Watertown, WI, Code of Ordinances § 42-123 (2003).

Larimer County, CO

In Larimer County, parcels of land larger than thirty acres must cluster residential development onto smaller lots, in part to “protect and encourage [the] continuation of existing agricultural uses.”[39] There are three other stated purposes of Conservation Development: maintaining open and rural land, protecting environmentally-sensitive areas, and promoting compatibility with existing land uses.[40]

Accessory structures related to agriculture are allowed so long as they are necessary.[41] The cluster development must be formed so that its design does not compromise the integrity of the agricultural use.[42] The Code encourages flexibility in lot size that is mindful of the site’s natural features and topography while accommodating residential uses and housing styles, as well as sizing lots to be compatible with agricultural uses.[43] Developers can utilize building envelopes instead of adhering to setback requirements, but must have a design that avoids hazardous areas, the peaks of ridges and slopes, “view corridors, open fields, sensitive environmental areas, and agricultural infrastructure.”[44] If agricultural structures are located outside of building envelopes, such development must be approved and follow relevant setback requirements.[45]

To view the provisions see Larimer County, CO, Code of Ordinances §§ 5.3.1(B), 5.3.6(B)(1)(C), 5.3.7(A)(4), 5.3.7(B)(3), 5.3.7(C)(1-2) (Feb. 3, 2020).

ADDITIONAL EXAMPLES

East Hampton, NY, Zoning Ordinance § 193-2-70(b) (current through Jun. 3, 2020) (enabling the planning board to require development to take place on non-prime soils).

Fayette County, GA, Code of Ordinances § 110-126(e)(3-6) (2012) (allowing community gardens, orchards, groves, pastures, and farm fields as uses within the conservation subdivision area).