According to Dean Patricia Salkin in American Bar Association’s “Counseling the Local Food Movement” (May 2012), the following zoning tools can be used to promote small-scale agriculture production within city limits:
Comprehensive Plans. This is the over-arching plan upon which land use regulations are adopted. It is important that the comprehensive plan itself emphasize the importance of small-scale commercial agriculture production within the city limits and the promotion of locally grown food.
Zoning Ordinances. If various types of urban agriculture and agri-tourism (or agri-tainment) are not addressed in the zoning ordinances/code, local governments should amend existing provisions allowing for same. Common restrictions include road setbacks, lot size, dimensions, signage size and placement, site plan requirements, screening, etc.
Definitions. Local governments should consider adding/clarifying definitions in “rooftop garden,” “community garden,” “green roof,” “small scale urban agriculture,” “animal harvesting facility,” “food distribution facility” etc. (or whatever the appropriate terms are for that locality) to ensure that the definitions are clear to the community.
Uses Allowed As of Right. Zoning ordinances typically describe the permitted uses, as of right, within a given district. As such, food production should be prescribed within certain districts as a matter of right.
Accessory Uses. Accessory uses are incidental to the primary use of the building on which they are located. For example, a rooftop garden on a residential building in Brooklyn would be an accessory use. Local governments can amend zoning laws to allow small-scale production agriculture.
Special Use or Conditional Use Permits. Some local governments allow for small scale agriculture production through special use or conditional use permits. Such uses are now allowed “as of right.” Instead, they are subject to additional review by the local zoning board or legislative body. Said procedures should not be overly burdensome for the agriculture producers and should not allow for unfettered discretion by the reviewing entity. In such cases, the zoning ordinance may allow an opportunity for public input. Unique prohibitions may take place with special use or conditional use permits regulating hours of operation (e.g., on-site farm stand).
Overlay Districts. Put simply, an overlay district is used as a mechanism to preserve certain areas (e.g., historic area, hazard prevention) or promote certain types urban/suburban agriculture.
Home-Based Business Regulations. Zoning ordinances should consider an allowance for small-scale home-based food processing (e.g., cottage food operations) at residential locations and on-site farmstands.
Dean Salkin did an excellent job putting together materials on land use law as it applies to urban and suburban agriculture (including a discussion on backyard chickens and beekeeping). If you haven’t done so already, please order the complete copy of the recording and substantive materials here.
“This blog is for informational purposes only and is not intended to create an attorney-client relationship. It is recommended that you speak to an attorney licensed in your jurisdiction before relying on the information in this blog.”