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    July 01, 2015 Urban Lawyer

    The Birds and the Bees: Recent Developments in Urban Agriculture

    by Sorell E. Negro & Jean Terranova

    Sorell E. Negro is a lawyer in Robinson & Cole LLP’s Hartford, CT and Miami, FL offices. Her practice focuses on land use issues and real property and environmental litigation. She is the CLE Director of the ABA Section of State and Local Government Law, and co-editor of Urban Agriculture: Policy, Law, Strategy, and Implementation (ABA 2015).

    Jean Terranova is a Boston-based attorney and Director of Food and Health Policy at Community Servings, a non-profit providing medically tailored home-delivered meals to the critically and chronically ill throughout Massachusetts. Jean has been involved with the work of the Boston and Massachusetts Food Policy Councils for over three years.

    The interest and demand for urban agriculture continues to rise throughout all regions of the United States, in urban areas of all sizes, and on a variety of scales. Communities are using urban agriculture to achieve a wide range of goals, including fostering sustainability, increasing economic vitality, repurposing abandoned or deteriorating properties, and improving public health and food security. This update discusses recent developments and trends in urban agriculture regulation.

    I.  Recent Urban Ag Ordinances

    In many cities, urban ag activities are occurring or have been occurring without any regulation, including: individual, family, and community gardening; small-scale farming; and the sale and distribution of locally grown produce. Small, medium, and large cities are increasingly proposing and adopting urban ag ordinances to regulate urban ag activities in order to encourage these activities and control where and how they occur.

    A.  Hartford, Connecticut

    In April 2015, Hartford, Connecticut, passed a new urban ag ordinance that allows home gardens in all districts as of right and community gardens in all districts as a conditional use.1 One of those conditions is that “[c]ommunity gardens must be maintained using organic agricultural practices.”2 While there generally is a fair amount of confusion and disagreement over what “organic” means, this regulation defines “organic agricultural practices” as:

    production methods that promote and enhance biodiversity, biological cycles, and soil biological activity; provided such methods are based on minimal use of off- farm inputs and on management practices that restore, maintain and enhance ecological harmony. Organic food grown in this manner is produced without using most conventional pesticides; fertilizers made with synthetic ingredients or sewage sludge; bioengineering; or ionizing radiation, as described by the U.S. Department of Agriculture National Organic Program.3

    In addition, the new ordinance states that in any residential zone, a single-operator garden, meaning a garden that is run by a single entity either for profit or not-for-profit, “may only be located on college or university campuses or similar institutional settings, in new subdivisions, or on a historic industrial site.”4 Moreover, farmers markets are deemed a conditional use in all districts in Hartford under the new ordinance.5 Bees and hens are also welcome, roosters are not, and no on-site slaughtering of chickens is allowed.6 Proponents of the ordinance believe that it will foster urban ag initiatives and improve food security in the city, pointing to several urban ag projects that have received significant community support and have seen notable success in recent years, some of which incorporate farm-to-table dining opportunities and educational programs into their urban ag efforts.7

    B.  Boston, Massachusetts

    On December 18, 2013, the City of Boston’s Zoning Commission adopted Article 89, a zoning code addressing commercial urban agricultural activities.8 Former Mayor Thomas Menino spearheaded the reform in 2010, when a local business owner advised the Mayor that zoning precluded him from starting a lettuce farm.9 Determined to remove this barrier to economic development and productive land use, Mayor Menino developed a process for broad and regular stakeholder engagement over a two-year period that culminated in the adoption of Article 89.10

    Article 89 now addresses use regulations (whether they are allowed, conditional, or forbidden) for the following commercial agricultural activities:

    • Urban farms (ground-level, roof-level, and roof-level green houses);11
    • Aquaculture, hydroponics, and aquaponics;12
    • The backyard keeping of hens13 and bees;14 and
    • Farmers’ markets and farm stands.15

    The City is currently working with Harvard Law School’s Food Law and Policy Clinic to develop user-friendly guides to help urban farmers navigate the zoning and permitting requirements for these ventures.16

    As community interest in urban and rooftop agriculture was gaining momentum in 2009, the City of Boston’s Inspectional Services Department published a bulletin setting forth the procedures for obtaining a permit for rooftop gardening.17 The bulletin highlights the positive environmental impacts of urban rooftop gardening:

    Environmental testing has shown that rooftop gardens and landscaping help reduce the amount of pollutants and dust particles in the air and water. Additionally, vegetation on rooftops helps reduce the urban heat island effect by keeping buildings cooler.18

    Article 89 goes beyond rooftop gardening to address commercial farming on rooftops,19 joining the ranks of New York, Chicago, Portland, and Seattle in adopting regulations addressing rooftop agriculture. Rooftop agricultural structures raise particular concerns for safety and must comply with state and local building safety codes.

    Article 89 is also permissive of hydroponics,20 which involves raising plants in a water-based system. Aquaculture and aquaponics facilities are allowed as of right in industrial and manufacturing zones.21 Operators must follow federal and state regulations for water use and discharge and for the possession, propagation, cultivation, sale, and disposition of living marine organisms.22

    Prior to the adoption of Article 89, the keeping of animals, including poultry, pigeons, rabbits, bees, horses, cows, and goats (but not pigs), was allowed as a conditional use in most districts (including residential) within Boston’s Base Code.23 In the more recently annexed neighborhood districts, the keeping of animals was permitted as a conditional use in commercial and industrial districts, but generally prohibited (with limited exceptions) in residential communities.24 Article 89 ratifies the uses previously permitted in the Base Code, and sets forth conditions that will allow for the keeping of adult hens that will apply in every district where animals will be permitted to be kept.25 As a reference point for developing the conditions for keeping animals, Boston’s city planners examined analogous regulations in Chicago, Cleveland, Lynn (Massachusetts), Louisville, Los Angeles, Miami, Minneapolis, San Francisco, and St. Paul.26 In adopting Article 89, the city makes clear that if a neighborhood would like to amend the applicable use regulations in the neighborhood to change whether the keeping of hens and bees is allowed, conditional, or forbidden, such can be done through a petition process.27

    Article 89 addresses dimensional regulations and management and maintenance requirements where the keeping of bees is conditional based on underlying zoning.28 New York, Denver, Milwaukee, Cleveland, St. Paul, Seattle, San Diego, San Francisco, Santa Monica, and Aurora, Colorado, are among the many cities that have also adopted regulations addressing the keeping of bees.29 The Massachusetts Department of Agricultural Resources (MDAR) encourages the keeping of bees and does not require a beekeeping permit.30 To prevent the spread of disease, beekeepers must register their hives with MDAR and submit to an annual inspection.31 A permit issued by the Bureau of Plant Industries is required before bees can be moved into Massachusetts from another state.32

    Stakeholder engagement has been key to the success of Boston’s urban ag initiatives. Mayor Menino established an Office of Food Initiatives in June 2010 to engage Boston’s Food Policy Council, other city officials, and stakeholders in the Mayor’s directives to expand access to healthy affordable foods; increase the city’s capacity to pro- duce, distribute, and consume fresh fruits, vegetables, and local foods; and build a strong local food economy.33 In addition to the Article 89 Urban Agriculture initiative, the office also succeeded in passing an ordinance to reduce the red tape in operating food trucks, sponsored legislation to fund a food innovation trust, and provided financial incentives to Supplemental Nutrition Assistance Program (“SNAP”) participants to purchase fresh fruits and vegetables at farmers markets.34 The city actively engaged the community for feedback, and is helping new farmers navigate the myriad additional regulations required for their newly allowed commercial ventures.35

    II.  Amendments to Urban Ag Ordinances

    Not only are cities adopting urban ag ordinances for the first time, but cities that have had urban ag ordinances on the books are amending their regulations to be more effective. Some cities are revising their regulations to streamline the permitting process for urban ag activities and to reduce the fees for special permits for urban farming and related activities. For example, Jersey City, New Jersey has recently streamlined its permitting process for farmers markets, and has made it mandatory for farmers markets to accept food stamps in connection with the SNAP Program and the Special Supplemental Nutrition Program for Women, Infants, and Children (“WIC”).36 The United States Department of Agriculture reported recently that the number of farmers markets in the country that are licensed to accept SNAP benefits is increasing.37

    As another example, Pittsburgh is considering amendments to its 2011 urban ag regulations to streamline the permitting process for keeping chickens, ducks, and goats.38 Under the proposed changes, which came together after the city received comments through a public hearing, a resident living on a property that is at least 2,000 square feet can obtain a permit for approximately seventy dollars through a simple over-the-counter permit request for up to five chickens or ducks, or two dehorned miniature goats, as well as two beehives.39 This is a vast improvement from the current system in which a permit costs $340 and requires a lengthy hearing process.40 The current process is so burdensome that only thirteen people have applied for permits, although it is estimated that there are hundreds of “unregistered” chickens currently living in Pittsburgh.41 Under the proposed amendment, a resident would be allowed an additional chicken or duck for each additional 1,000 square feet of property, and for each additional 2,000 square feet, two additional beehives would be allowed.42 For properties that are less than 10,000 square feet, no additional goats or other livestock would be permitted.43 For properties that are more than 10,000 square feet, two full-sized goats would be allowed.44 Under the proposed ordinance, roosters are not allowed, and no single goats are allowed.45 The city planning commission unanimously approved the proposal in March 2015.46

    III.  All Hail the Bees

    Bees are gaining momentum in the urban ag regulatory climate. Recognizing the environmental benefits of bees, as good sources of pollen as well as honey, Florida enacted legislation preempting local ordinances that banned beekeeping.47 Section 586.10 of the Florida Statutes states:

    The authority to regulate, inspect, and permit managed honeybee colonies and to adopt rules on the placement and location of registered inspected managed honeybee colonies is preempted to the state through the department and supersedes any related ordinance adopted by a county, municipality, or political subdivision thereof.48

    Similarly, Georgia also preempts local restrictions on the keeping of bees,49 and even designated the honeybee as its official state insect in 2013.50

    IV.  Growing Urban Economies and Communities

    Cities are looking to urban ag to increase economic activity, not just from growing produce, but also from food manufacturing, processing, and distributing. Urban ag is also being increasingly utilized by many cities to address food insecurity. In 2013, 14.3% of households, or 17.5 million households, were food insecure, according to the United States Department of Agriculture’s (USDA) Economic Research Service.51 This number was essentially the same in 2012.52 The USDA defines food deserts as “urban neighborhoods and rural towns without ready access to fresh, healthy, and affordable food.”53 The USDA estimates that 23.5 million people in the United States live in food deserts.54 Since the majority of Americans live in cities, urban ag has significant potential to increase access to healthy food and improve public health.

    Providence, Rhode Island, has been taking a very proactive approach to urban agriculture. It has a robust urban ag initiative called “Lots of Hope,” and performed an urban ag assessment in 2014 to determine the criteria for which types of parcels would be best suited for urban ag in the city.55 In Providence, there is significant community support for urban ag and not as much competition for land as there is in cities like Boston, according to Ellen Cynar, Program Manager for the City of Providence’s Healthy Communities Office.56 According to Ms. Cynar, who has been working on the city’s urban ag initiative since its inception, one of the main goals of Providence’s urban ag initiative is to increase the availability of fresh fruits and vegetables for lower income immigrant groups, many of whom came from an agrarian background.57 The city offers low-cost leases of lots for urban ag at a cost of one dollar to twenty-five dollars per year, which residents can lease to produce food for consumption or to sell.58

    Jersey City is similarly implementing a new urban ag initiative to increase the availability of healthy foods.59 The city’s new “Adopt- A-Lot” program allows residents to lease out city-owned lots for gardening for one dollar.60

    Vertical farming, or indoor agricultural facilities in tall, urban buildings — often skyscrapers — is also increasing in popularity in cities; many partnerships have developed between cities and the private sector for urban ag development projects. The City of Pasadena, Texas, for example, recently signed a letter of intent to develop a vertical farming and education center on two unused properties owned by the city.61 This development will be a partnership with Indoor Harvest Corp., a design-build contractor, developer, and seller of commercial grade equipment for urban agriculture facilities.62 Indoor Harvest will be able to present its engineering and technology to clients in this agricultural facility, and the city will have an education center and academic program as part of the project, to be made available to community organizations.63

    V.  Urban Ag Internationally

    Notable developments are on the horizon for urban ag, and not just within the United States. The United Nations has declared 2015 the “International Year of Soils.”64 The UN’s Food and Agriculture Organization (FAO) is raising awareness of the importance of soils, specifically for food security and ecosystem function.65 The FAO explains that the planet’s soils are in poor condition and threatened by urban sprawl, farming, and other human activities.66 In fact, thirty three percent of the world’s soil has been degraded, by forces such as erosion and pollution,67 and soil is a non-renewable resource.68 Soil is the basis for ninety-five percent of our food including fruits and vegetables, but also meat and dairy.69 Composting efforts are increasing in urban areas, and urban ag ordinances such as Hartford’s are specifically providing for composting activities and structures.70

    There has been a significant rise in urban ag activities internationally. A recent study, reported in the journal Environmental Research Letters, analyzed for the first time the scale of urban agriculture in cities with populations of 50,000 people or more around the world.71 The study found that urban ag was far more prevalent than previously thought. For example, the total area used for farming rice in all of South Asia was smaller than the total amount of urban areas used for cultivating rice around the world.72 Similarly, the total area used for production of maize in sub-Saharan Africa was found to be less than the total amount of urban areas used for cultivating maize globally.73

    While not all countries view agricultural activities as appropriate for cities,74 many nations are encouraging urban ag, and some are even considering national urban ag policies. For example, the Philippines has been considering institutionalizing urban ag and vertical farming in its larger cities to help reduce poverty, increase food security, and improve the environment.75 The proposed Integrated Urban Agriculture Act would encourage urban ag as a state policy in the country, specifically encouraging vertical farming, which it defines as “the method of farming that is brought to the urban space by employing the concepts of indoor agriculture in skyscrapers and other modern buildings.”76 The proposed legislation, however, goes beyond gardening and farming and also includes animal husbandry, aquaculture, and agroforestry.77

    VI.  Conclusion

    In short, urban ag activities and regulations have come a long way, and impressive and creative initiatives continue to sprout up around the country and the world. Nevertheless, there is still significant room for growth and opportunity in this dynamic area of the law.

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    1. HARTFORD, CONN., ZONING REGULATIONS § 905 (2015).
    2. Id. at § 905(b)(8).
    3. Id. at § 2.
    4. Id. at § 905(c)(15).
    5. Id. at § 905(d).
    6. Id. at § 905(g)-(h).
    7. See Shana McDavis-Conway, Farming in the City: Urban Agriculture in Hartford, http://www.hungercenter.org/wp-content/uploads/2011/07/Farming-in-the-City-of-Hartford-McDavis-Conway.pdf.
    8. Press Release, Bos. Mayor’s Office, Mayor Menino Announces Adoption of Urban Agriculture Zoning (Dec. 19, 2013), http://www.cityofboston.gov/news/Default.aspx?id=6446.
    9. See Bos. Redevelopment Auth., Quick Facts about Article 89: Urban Agriculture Rezoning Initiative, http://www.bostonredevelopmentauthority.org/getattachment/8a1e3014-d6c7-42ac-969f-c9bb12ccf955 (last amended Oct. 28, 2013).
    10. See Memorandum from Kairos Shen, Director of Planning, Bos. Redevelopment Auth. (“BRA”), to Peter Meade, Director of BRA (Sept. 12, 2013) (on file with BRA).
    11. BOSTON, MASS., ZONING CODE art 89 §§ 89-4, 89-5 (2015).
    12. Id. at § 89-11. Aquaculture involves the commercial production of fish in a recirculating environment. Aquaponics is a system in which fish and plants are raised together in a recirculating environment, and the fish waste provides nutrients to the plants. Hydroponics involves raising plants in a water-based system.
    13. Id. at § 89-9.
    14. Id. at § 89-10.
    15. Id. at § 89-12.
    16. See Boston Urban Agriculture Initiative, HARVARD FOOD LAW AND POLICY CLINICAL BLOG, http://blogs.law.harvard.edu/foodpolicyinitiative/food-policy-initiative-projects/current-projects/boston-urban-agriculture-initiative/ (last visited May 31, 2015).
    17. Inspectional Servs. Dept., Boston, Mass., Commissioner’s Bulletin (2009), http://www.cityofboston.gov/images_documents/200904%5B1%5D_tcm3-18886.pdf.
    18. Id.
    19. BOSTON, MASS., ZONING CODE art. 89, § 89-5 (2015).
    20. See id. at § 89-11.
    21. See id.
    22. See id.
    23. BOSTON, MASS., ZONING CODE art 8, § 8-7, Table A, Use Item No. 76 (2015).
    24. See Boston Redevelopment Auth., Article 89 Made Easy: Urban Agriculture Zoning for the City of Boston, 41, http://www.bostonredevelopmentauthority.org/getattachment/4b74929b-920e-4984-b1cd-500ea06f1bc0 [hereinafter Article 89 Made Easy].
    25. See id.; BOSTON, MASS., ZONING CODE art. 89, § 89-9 (2015).
    26. See Memorandum from Tad Read, Senior Planner of BRA, to Mayor’s Urban Agriculture Working Group ( July 6, 2012) (on file with the BRA).
    27. Article 89 Made Easy, supra note 24, at 41-42.
    28. BOSTON, MASS., ZONING CODE art 89, § 89-10 (2015).
    29. See Memorandum from Tad Read, supra note 26, at 7.
    30. Bee FAQ, MASS. EXEC. OFFICE OF ENERGY AND ENVTL. AFFAIRS, http://www.mass.gov/eea/agencies/agr/farm-products/apiary/bee-faq.html (last visited May 31, 2015).
    31. See id.
    32. 330 CMR § 8.06(1) (2015).
    33. City of Boston Office of Food Initiatives, http://www.cityofboston.gov/food/ (last visited May 31, 2015).
    34. See City of Boston Office of Food Initiatives, Legislation, http://www.cityofboston.gov/food/legislation/ (last visited May 31, 2015).
    35. See City of Boston Office of Food Initiatives, Farmers Markets, http://www.cityofboston.gov/food/farmers/ (last visited May 31, 2015).
    36. Rebecca Panico, New initiative brings more gardens, urban agriculture to Jersey City, THE JERSEY JOURNAL (Apr. 17, 2015), http://www.nj.com/hudson/index.ssf/2015/04/new_initiative_brings_more_farmers_markets_and_gar.html.
    37. United States Department of Agriculture (USDA) Food and Nutrition Service, Learn About SNAP Benefits at Farmers’ Markets, http://www.fns.usda.gov/ebt/learn-about-snap-benefits-farmers-markets (last visited May 31, 2015).
    38. See The Proposed New Urban Agriculture Zoning Code: What Does it Mean to You?, http://www.growpittsburgh.org/wp-content/uploads//PGHUAgSimpleCode3.6.15.pdf [hereinafter The Proposed New Urban Agriculture Zoning Code] (last visited May 31, 2015); see also Proposed Amendments to Pittsburgh Zoning Code Related to Urban Agriculture, http://apps.pittsburghpa.gov/dcp/2015.03.10_-_Urban_Agriculture_Final_Revision.pdf [hereinafter Proposed Amendments to Pittsburgh Zoning Code] (last visited May 31, 2015).
    39. See The Proposed New Urban Agriculture Zoning Code, supra note 38; see also Proposed Amendments to Pittsburgh Zoning Code, supra note 38.
    40. Jenn Stanley, Count Your Chickens: Pittsburgh Set to Change Rules for Urban Farmers, NEXT CITY (Apr. 21, 2015), http://nextcity.org/daily/entry/pittsburgh-urban-farming-rules-chickens.
    41. Id.
    42. Proposed Amendments to Pittsburgh Zoning Code, supra note 38, at § 912.07.B(8).
    43. Proposed Amendments to Pittsburgh Zoning Code, supra note 38, at § 912.07.B (13)-(14).
    44. Id.
    45. The Proposed New Urban Agriculture Zoning Code, supra note 38.
    46. Amy M. Schaarsmith, Pittsburgh Looking to Streamline Urban Farming Trend, PITTSBURGH POST-GAZETTE (Apr. 17, 2015), http://www.post-gazette.com/local/city/2015/04/17/Pittsburgh-looking-to-streamline-urban-farming-trend/stories/201504170305.
    47. FLA. STAT. § 586.10 (2015).
    48. Id. at § 586.10(1).
    49. GA. CODE ANN. § 2-14-41.1 (2015).
    50. GA. CODE ANN. § 50-3-58 (2015).
    51. USDA Econ. Research Serv., Food Security in the U.S.: Key Statistics & Graphics, http://www.ers.usda.gov/topics/food-nutrition-assistance/food-security-in-the-us/key-statistics-graphics.aspx (last updated Jan. 12, 2015).
    52. Id.
    53. USDA Agric. Mktg. Serv., Food Deserts, http://apps.ams.usda.gov/fooddeserts/fooddeserts.aspx (last visited May 31, 2015).
    54. Id.
    55. See Peter Asen, et al., Lots of Hope: An Urban Agriculture Assessment with the City of Providence (2014), https://www.providenceri.com/efile/5537.
    56. Interview with Ellen Cynar, Program Manager for the City of Providence’s Healthy Communities Office (Apr. 23, 2015).
    57. Id.
    58. City of Providence, Request for Proposals: Lots of Hope Urban Greenhouse Pilot, May 2015-December 2016, (2014), http://www.rifoodcouncil.org/sites/default/files/Lots%20of%20Hope-%20Greenhouse%20Grower%20RFP%20December%202014.pdf.
    59. See Panico, supra note 36.
    60. Id.
    61. Press Release, Indoor Harvest, Corp., Indoor Harvest Corp. Signs LOI with City of Pasadena Texas to Develop a Vertical Farming Facility and Education Center (Mar. 31, 2015), http://www.prnewswire.com/news-releases/indoor-harvest-corp-signs-loi-with-city-of-pasadena-texas-to-develop-a-vertical-farming-facility-and-education-center-300058286.html.
    62. Id.
    63. See id.
    64. World Soil Day and International Year of Soils, G.A. Res. 68/232, at 1, U.N. Doc. A/RES/68/232 (Feb. 7, 2014), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/232&Lang=E.
    65. Food and Agriculture Organization of the United Nations (FAO), International Year of Soils 2015, http://www.fao.org/soils-2015/about/en/ (last visited May 31, 2015).
    66. FAO, Soil Is a Non-renewable Resource (Mar. 3, 2015), http://www.fao.org/resources/infographics/infographics-details/en/c/278954/.
    67. Spotlighting Humanity’s ‘Silent Ally,’ UN Launches 2015 International Year of Soils, UN NEWS CENTRE (Dec. 5, 2014), http://www.un.org/apps/news/story.asp?NewsID=49520.
    68. “Soil is considered a non-renewable resource because it does not renew itself at a sufficient rate in the human time frame. Indeed, one centimeter of soil can take hundreds to thousands of years to form from parent rock.” FAO, 2015 International Year of Soils: Frequently Asked Questions, http://www.fao.org/soils-2015/faq/en/ (last visited May 31, 2015).
    69. See id.
    70. HARTFORD, CONN., ZONING REGULATIONS. § 905(e) (2015).
    71. See Mark Kinver, Global Importance of Urban Agriculture ‘Underestimated,’ BBC NEWS (Nov. 25, 2014), http://www.bbc.com/news/science-environment-30182326.
    72. Id.
    73. Id.
    74. Id. (“Dr. Drechsel explained that there was a marked difference in attitudes between the developed world and developing nations when it came to urban agriculture. . . . He explained that it was important to foster a greater level of integration between agricultural and urban development policies. ‘This is not happening in large parts of the developing world because the urban sprawl is happening far too quickly. The legislative, administrative infrastructure is unable to keep pace.’ ”).
    75. Rowena B. Bundang, Solon Bats for Urban Agriculture and Vertical Farming to Ensure Food Security and Avoid Further Climate Change (Mar. 26, 2015), http://www.congress.gov.ph/press/details.php?pressid=8605.
    76. Id.
    77. “Agroforestry is the intentional integration of trees and shrubs into crop and animal farming systems to create environmental, economic, and social benefits. It has been practiced in the United States and around the world for centuries.” USDA, Agroforestry, http://www.usda.gov/wps/portal/usda/usdahome?contentidonly=true&contentid=agroforestry.html (last visited May 31, 2015 but the site was last updated Oct. 28, 2013).