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Urban Farming: Laws and Land Access

By Leah Penniman
Excerpt from the book Farming While Black

For a few years our illegal chickens flew under the radar of the city. Albany, New York had an ordinance that disallowed chickens and other livestock under the belief that they were “incompatible with urban life.” There was an exception for educational nonprofits, but no flexibility for residents trying to raise food for survival. We collaborated with three other neighbors with adjoining backyards to take down our fences and build a collaborative food landscape. All combined, there were two chicken coops, a goat pen, vegetable gardens, and mulberry trees. Our young children could roam far without ever having to cross a street. Unfortunately, code enforcement caught on and evicted the chickens. Many neighbors took the fight to city hall. After nine months of organizing, activists convinced the city council to allow backyard chickens in 2011. Sadly, the mayor vetoed the vote and the chickens could not return. 

Soul Fire Farm in Grafton, New York, is always buzzing with activity and camaraderie.

In many cities these nuisance ordinances were created to specifically target immigrants and people of color who were more likely to be preserving agrarian practices. Whether you decide to abide by the law, skirt the law, or challenge the law, it is helpful to understand what restrictions apply to urban agriculture in your area. Before you invest substantial resources into your plot of earth, investigate the following questions: 

  • Zoning. Does the zoning of the land permit agriculture? What “public nuisance” laws exist in your city? Are there “right to farm” laws in your county? 
  • Greenhouses and high tunnels. Is a building permit required for greenhouses? Is there a size limitation? Note that some states categorize greenhouses as permanent structures and high tunnels as temporary structures, influencing how they are taxed. 
  • Animal housing. Is animal agriculture permitted? Is a building permit required for chicken coops and other animal housing? How far away must animals live from residential buildings or property lines? 
  • Rooftop and wall gardens. What building code requirements exist for a rooftop garden? Do roof- top gardens require permits? Is a permit required to grow plants on the exterior wall of a building? 
  • Food safety. Is it legal to sell processed food out of your home kitchen per a “cottage food law”? If not, determine whether a commercial kitchen is available to rent. Learn more about food safety law from the Urban Agricultural Legal Resource Library, a project of the Sustainable Economies Law Center

Should you decide to advocate for changes in zoning or ordinances that are more favorable to urban agriculture, it helps to look at best practices in other cities. For example, Cleveland, Ohio, has an Urban Garden District Zoning ordinance that gives community gardens additional protection from being sold and converted to other uses. Seattle, Richmond, Portland, Oakland, Minneapolis, Milwaukee, Chicago, and Baltimore also have useful policy templates for promoting urban agriculture.7 In advocating for policy change, try to get your hands on any community food assessments that can provide data to support the need to uplift urban agriculture. Engage with the local food policy council to find allies for your cause. 

Lack of accessible and affordable land can be one of the greatest constraints to urban farming. Empty lots, utility rights-of-way, private backyards, parks, institutional land (schools, hospitals, churches, prisons, universities, senior homes), and rooftops are all examples of vacant land that might be reclaimed for agricultural use. When you encounter vacant land with agricultural potential, take note of the address of the adjacent parcels and take that information to the local tax assessor or department of finance. Ask to see the tax map and property records to determine the parcel number, and research the site’s ownership history. You can then contact the most recent owner to discuss license, lease, or sale of the property. Alternatively, many cities have passed legislation to allow citizen-controlled land banks and land trusts to manage vacant land. If your city has a land bank, approach them directly to determine what properties are available, their land-use history, zoning designation, and any public programs that provide incentives for their purchase. The national nonprofit Trust for Public Land also stewards urban lots that can be used for agriculture. 

If you are unable to buy property outright, you will need to enter into a lease or other contractual agreement to guarantee access to the land. The Urban Agricultural Legal Resource Library outlines important elements of land-use agreements for both public and private land and sample land-use agreements. Your land-use agreement should include the following provisions, at minimum: 

Provisions of Land-Use Agreement 

  • Land. Specifications of size and location.
  • Rent. Cost to tenant.
  • Use of land. Specification of permitted uses and prohibited uses (sales, tree removal, fires, and the like).
  • Term. Duration of lease, options for lease renewal, and expected tenure of project on land.
  • Building and improvements. Clarification of building types prohibited and permitted (carports, storage, temporary shelters, and so on) and improvements (fencing, garden beds, landscaping).
  • Right of entry. For example, restrictions to farm employees, contract workers, volunteers.
  • Hours of use. Days and times of activities, clarification of overnight stay.
  • Noise. Expected decibels of noise pollution created.
  • Animals. Use of animals and restrictions thereof.
  • Expected traffic. Estimated number of trips to the site and number of people expected on a plot at any given time.
  • Growing practices. Farmers’ use of tools/machinery and use of pesticides, fertilizer, fungicides, and so on. (On the city’s end, this could be a selection criterion—for example, projects growing organically could rank higher than projects proposing to use these chemicals.)
  • Environmental impacts. Management of runoff and water pollution.
  • Water usage. Agreement on source, use, and payment.
  • Routine maintenance. Specifies responsibilities of landowner and farmer in maintenance of plot’s appearance and preventing hazards.
  • Subleasing policy. Permitted/prohibited and where liability for subtenant lies.
  • Garden produce. Clarification of ownership of produce from the land and whether sales are permitted.
  • Compost. Agreement on use and location of compost pile and perhaps use of landowner’s acceptable yard and kitchen wastes.
  • Payment. Type and amount of payment; can be monetary or in-kind through share of crops.
  • Liability. Two-way release of liability; each party gives indemnity to the other over specific scenarios and legal responsibilities for their respective uses of the land. 
Farming While Black book cover

This article is an is from Leah Penniman’s book Farming While Black: Soul Fire Farm’s Practical Guide to Liberation on the Land (Chelsea Green Publishing, November 2018) and is reprinted with permission from the publisher. The author is a Black Kreyol farmer and founding co-executive director of Soul Fire Farm in Grafton, New York, a people-of-color led project that works to dismantle racism in the food system. She is the recipient of the 2019 James Beard Foundation Leadership Award. Find out more about Leah’s work at www.soulfirefarm.org and follow her @soulfirefarm on Facebook, Twitter and Instagram.