Chapter 6.1
Community Health and Safety

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

Temporary Farm Stands

INTRODUCTION

Some local codes prohibit farm stands or set forth onerous farm stand permit requirements, discouraging landowners from establishing a farm stand or necessitating applicants to complete numerous and, at times, expensive steps to get zoning approval.[1] Farm stands can be located on or near a farm, along the roadside, in temporary structures, or vacant lots.[2] Requirements that discourage farm stands create barriers to local food sales and can be detrimental to the local economy and health.[3] Allowing food stands can increase individual access to fresh produce.[4] Further, studies have shown that farm stands and other “direct-to-consumer” food formats outpaced and grew faster than total agriculture sales from 1997-2007—104.7% growth versus 47.6%. Requirements that discourage farm stands can also hamper efforts to address “food deserts” and “food swamps,” which may be prevalent in rural areas that require driving a significant distance to access healthy food.[5] Food deserts have been defined as areas that lack access to affordable produce and other foods that are recommended for a healthy diet, while food swamps are areas where “fast food and junk food inundate healthy alternatives” (for our brief specifically discussing grocery stores in food deserts see Grocery Store Development in Recognized Food Deserts).[6] Further, farms, farmers’ markets, and farm stands can all be implemented in urban areas in an additional attempt to mitigate food deserts (for our brief specifically discussing Farmers Markets in a Variety of Districts, Temporary Farm Stands, and Permit Commercial Agricultural Activities in Urban/Suburban Areas and Allow Them to Satisfy).

To increase the availability of farm stands, some communities allow them under certain conditions or streamline the permitting process.[7] Such ordinances may be drafted as a “by-right” use, allowing farm stands without further approval or review.[8] For example, Minneapolis, Minnesota defines farm stands and discusses the seven qualifications for by-right zoning of farm stands in the “Accessory Uses and Structures” chapter of its zoning code.[9] Minneapolis allows farm stands as an accessory to a community garden, market garden, or urban farm, subject to the seven conditions (for our brief specifically describing ordinances addressing community gardens see Community Gardens on Private Property as a By-Right or Permitted Use).[10] These conditions limit the use of the farm stand, what products can be sold, days and times of operation, the number of stands per lot, the removal of stands when not in use, and signage.[11] Other local governments include parking and loading requirements,[12] limit the months a farm stand may be open, and regulate the percentage of food sold at a stand that must be made either on-site or within that county.[13]

EFFECTS

There are several benefits a locality can gain by enacting farm stand-friendly ordinances. Farm stands can help expand economic opportunities for smaller producers, such as allowing producers to sell directly to consumers on site and often for more days during the year than a typical farmers market would allow.[14] Additionally, farm stand ordinances may help farmers expand their customer base by allowing the sale of goods in areas typically prohibiting such sales; in doing so, these ordinances allow more farmers to capitalize on their products.[15] The U.S. Department of Agriculture’s (USDA) Economic Research Service discusses the impacts of “Direct-To-Consumer” (DTC) food outlets, which includes farm stands.[16] The USDA’s Agricultural Marketing Service reported that DTC outlets increased by 5,951 between 1998 and 2017, illustrating a desire and need for this small-scale farming format to sell fresh food.[17]

Ordinances encouraging farm stands can also help increase the availability of food in areas where there are shortages and may help combat the negative effects of food deserts and food swamps.[18] As mentioned above, adopting an ordinance permitting farm stands as temporary uses can increase the availability of fresh and affordable food in areas where there is limited access.[19] In addition, a 2012 study by Evans et. al. showed that weekly exposure to farm stands has the potential for “significant increases” in the consumption of “fruit, fruit juice, tomatoes, green salads, and other vegetables.”[20] Finally, farm stand ordinances can be enacted in conjunction with other local good ordinances, such as those that enable community gardens, which provide for educational opportunities and help build stronger community cohesiveness (for our brief specifically discussing community gardens see Community Gardens on Private Property as a By-Right or Permitted Use). For example, Denver Urban Gardens works with local schools in Denver to create Youth Farm Stands, which are run by individual students.[21] These farm stands often sell produce grown in the school gardens, where students learn how to grow fruits and vegetables.[22] These farm stands can help mitigate potential food deserts by selling healthy and nutritious food to the local communities in Denver.[23]

EXAMPLES

Hancock County, ME

Residents of four towns in Maine have adopted a Local Food and Community Self-Governance Ordinance.[24] Residents of these towns drafted the ordinance in 2010 and 2011 after local fears that the Food Safety Modernization Act, signed by President Obama in 2012, would increase regulatory barriers and licensure requirements for beginning farmers and cottage-scale food producers.[25] The Local Food ordinance’s preamble focuses on the needs and rights for town residents to “produce, process, sell, purchase and consume local foods thus promoting self-reliance, the preservation of family farms, and local food traditions.”[26] These self-sufficient goals fall directly in line with calls for food sovereignty, access to local food, and increased community resilience.

The purpose of the Local Food ordinance is six-fold: to provide access to local food, enhance the local economy, protect access to local farm sales, support local food producers and processers, protect food-based community events, and to protect local knowledge and “traditional foodways.”[27] The legal thrust of the ordinance exempts producers or processers of local food “from licensure and inspection” only so long as the food is sold for home consumption.[28] This exemption covers sales from farmers to patrons through farmers’ markets, farm/roadside stands, direct-to-patron systems, and direct delivery to patrons.[29]

Section six of the ordinance discusses the implementation of this law. The ordinance asserts that it is “unlawful for any law or regulation adopted by the state or federal government to interfere with the rights recognized by this Ordinance.”[30] Corporations are specifically named in this section, making it unlawful for a corporation to interfere with the ordinance.[31] Section eight discusses pre-emption, stating that any attempt “preempt, amend, alter, or overturn” the ordinance will result in a town meeting to determine alternative ways of implementing the ordinance.[32] A Blue Hill dairy farmer was ordered to pay $1,000 in fines and fees for “illegally selling unlabeled, unlicensed raw milk” from a road-side farm stand.[33] The farmer is planning on appealing to the Maine Supreme Court[34]; local ordinances, similar to this one, may frequently be challenged in similar ways.

Hopkinton, RI

Hopkinton’s zoning ordinance is designed to encourage farming and agriculture by allowing for “supporting activities which add to the economic viability of the farm,” including farm stands.[35] The ordinance’s definition of farm stands states that the stand must be freestanding, seasonal, and must only sell farm products “grown or raised on the premises.”[36] Hopkinton’s permitting process is by-right, allowing a farm stand if it meets all requirements outlined in the ordinance.[37] Those requirements include: the farm stand may not exceed 200 square feet in floor area and 12 feet in height;[38] there can be no space for patrons inside the farm stand, only a front counter for service and a canopy roof for patrons’ protection;[39] while not subject to minimum yard setbacks, farm stands must be set back from public and private rights-of-way by fifteen feet;[40] and farm stands are limited to two off-street parking spots that are set back from the paved public roads.[41] The ordinance does not contain requirements for off-street loading zones.[42]

Beyond these minimal requirements, Hopkinton has no other qualifications to establish a farm stand.[43] As stated above, by-right permitting allows small and local farmers to set up farm stands with minimal interference from the local government, beyond the minimum qualifications established in this ordinance. Hopkinton, Rhode Island, is 44 square miles, and has a population of approximately 8,000 residents.[44] Hopkinton’s zoning ordinances can serve as a model for by-right permitting of farm stands for any small or local government looking to regulate farm stands effectively.

To view the provisions see Hopkinton, RI, Code of Ordinances § 5.5-1 (Dec. 27, 2017), https://perma.cc/JE3X-5W5P.

Contra Costa County, CA

Contra Costa County’s zoning ordinance specifically discusses farm stands, expressly allowing farm stands as “accessor[ies] to on-site agricultural operations.”[45] The county defines farm stands as “accessory to an on-site agricultural operation that is used primarily to sell farm products, value-added farm products, and non-agricultural items, as specified, where the total sales area does not exceed one thousand five hundred square feet.”[46] The space limitation is to discourage the establishment of retail stores or convenience shops as reflected in the ordinance’s Purpose and Intent section (“This Chapter . . . is not intended to encourage the establishment of traditional retail stores or convenience markets.”).[47]

The county expressly regulates development standards, signs, parking, sales, permits, and fees for farm stands.[48] Of importance here, the ordinance limits the number of stands to one per lot only in agricultural districts, and entirely restricts them from non-agricultural districts.[49] In addition, farm stands may sell “farm products produced on-site or proximate to the site.”[50] However, 40 percent of sales may be value-added farm products, non-proximate farm products, and non-farm products; only 10 percent of total sales can be either non-agricultural items or farm products not produced on-site or proximate to the site.[51]

Contra Costa does not have a full “by-right” ordinance system, but they have taken steps to streamline the permitting process for farm stands. When applying for a farm stand permit, the farmer must submit, in writing, enough information for the appropriate department to determine that the farm stand will meet the standards established in the ordinance.[52] Assuming there is sufficient information submitted, the department will approve the application “ministerially without discretionary review or public hearing.”[53] Providing the department with some oversight in the permitting process can be an effective step towards by-right permitting; the ministerial approval allows for farmers to apply for a farm stand and quickly take the next step towards providing healthy food to the local community.

To view the provisions see Contra Costa County, CA, Code of Ordinances tit. 8 § 88-20.202, (April 21, 2020), https://perma.cc/TD27-SPPC.

ADDITIONAL EXAMPLES

Minneapolis, MN, Code of Ordinances, tit. 20 § 537.110 (June 5, 2020), https://perma.cc/UKZ9-SSC8 (attempting to “remove regulatory barriers to urban agriculture and ease the sale of produce throughout the City”).

Boulder County, CO, Land Use Code art. 4 ch. 4-502(E) (2017), https://perma.cc/C88U-RCCV (permitting farm stands by right in several districts and two others upon special review; providing for parking and loading requirements, but prohibiting agriculture-based recreational activities).

Queen Anne County, MD, Code of Ordinances, ch. 18:1 part 3 art. VII § 53(D)(6) (Oct. 9, 2018), https://perma.cc/K3UY-LURK (allowing farm stands to operate as a temporary use so long as they are open for no more than six months and more than 50 percent of the products sold are grown on site or within the county).

Northampton, NH, Code of Ordinances, §602.5 (March 10, 2020), https://perma.cc/JW4D-BRU5  (permitting temporary farm stands under and requiring them to meet certain conditions).

ADDITIONAL RESOURCES

Kate A. Voigt, Pigs in the Backyard or the Barnyard: Removing Zoning Impediments to Urban Agriculture, 38 B.C. Envtl. Aff. L. Rev. 537 (2011), https://perma.cc/6QT5-NJLC.

Andrea Vaage & Gary Taylor, Municipal Zoning for Local Foods in Iowa: A Guidebook for Reducing Local Regulatory Barriers to Local Foods, Iowa State University Extension and Outreach (2012), https://perma.cc/Z7EH-L43V.

National League of Cities, Promoting Urban Agriculture Through Zoning (2017), https://perma.cc/2CVM-GPK3.

Growing Food Connections, Local Government Food Policy Database, USDA Nat’l Inst. of Food & Agric., https://perma.cc/4U3F-APGG (last visited June 11, 2020).

Healthy Food Policy Project, https://perma.cc/8TG7-VFLM (containing policy database with over 300 coded laws).