Originally published in Issue 13
By Mitch Hagney
In many cities, urban gardeners operated in a legal gray zone in terms of where they were permitted to grow and sell produce. Many growers were uncertain about whether they could use spaces like alley-ways, restaurants, or rooftops in addition to backyards.
Most laws don’t currently account for indoor farms, because they are a distinct break from what zoning would normally interpret as a farm. Many officials aren’t even sure if a shipping container system is a building, and vertical farms wouldn’t be zoned agricultural under current laws.
Changing current restrictions, laws
To ease the transition to larger scale controlled environment agriculture, advocates will have to adjust zoning and permitted use laws.
It may seem like a non-issue to many gardeners or farmers that food production should happen throughout the city, but some residents and policymakers are apprehensive about letting commercial food production and sales occur in residential areas.
Many cities have already struggled with the tension that comes with unusual urban land use, and these conflicts will only become more common as urban agriculture rises in popularity. In Santa Fe, an urban farm which sold produce on site ran into problems because of restrictions on its residential type zone. The business, Gaia Gardens, was cited by inspections agents for multiple problems, including a lack of permitting and business license. The tension escalated to a city-wide disagreement that the city council had to legislate reactively.
Sacramento, trying to avoid being reactive to problems, worked hard to clearly establish guidelines through an urban agriculture ordinance. The process ended up creating stringent restrictions that gardeners and farmers resisted. Even after a second ordinance was passed to loosen them, farms are still limited by acreage and produce can only be sold on certain days of the week on site unless the property’s “primary use” is agriculture.
In Austin, a farm located in a single-family residential district was temporarily shut down after a disagreement over an unpleasant smell from neighbors caused the city to intervene. HausBar Urban Farm eventually reopened after a combination of fixing certain code violations like too many structures on the property and the encouragement of an urban agriculture ordinance, but only after a tense time between many residents and growers.
In San Antonio, there are nearly 100 community gardens and a handful of urban farms. The Food Policy Council, a local nonprofit, wrote and submitted amendments to the Unified Development Code after coordinating and receiving input from different groups throughout the city. The Development Code in San Antonio is updated once every five years, and primarily concerns available land uses in different zones. The city council passed the urban agriculture code amendments.
Proactive in San Antonio
Leslie Provence, vice president of the Food Policy Council and the prime author of the code amendments said, “Our city has always had chickens in neighborhoods and we’re blessed with a big agricultural background. We wanted to be proactive to affirm that growing anywhere is allowed before any complaints could lead to restrictions.”
Experienced policymakers generally recommend gathering stakeholders together before making any firm recommendations, and those crafting law to affect urban agriculture may find value looking broadly at who is included in that stakeholder group. In San Antonio, the Food Policy Council brought in typical participants like gardeners, urban farmers, and development services, but they also solicited help from the city’s Metro Health Department and the Housing Authority.
Those extra stakeholders had information that proved useful. Both departments had experience dealing with development restrictions that came out of zoning policy, so they knew specific language to use or avoid. Once the language change was submitted, their sign-on approval helped convince councilmembers that broad support already existed, smoothing the way for easy passage.
Some of the amendments legalized the sale of produce on site at either homes or farms, something that was previously unlawful. This brought the city into compliance with a recent state law which allowed for “cottage foods” to be produced and sold at homes without standard business permitting.
Ultimately, the amendments also created several new legal definitions for farms themselves. A “residential market garden” is for residents who grow crops on their residential property who want to sell uncut produce to buyers. They are legal in every zoning district in the city and there are no restrictions on days of the week or sales volume. An “urban farm” is for outdoor property, either in an open lot or greenhouse, that is not located on a residence where produce is raised and can be sold off-site. “Indoor growing” is raising or harvesting any crops on a commercial basis indoors.
In San Antonio, residential gardens and indoor growing are both permitted by default in every zoning district. Only open lot urban farms have a restriction, where they must apply for a special use permit to be in certain residential districts. Those special use permits can be costly and slow to acquire.
“Our opening bid was to make everything legal in all zoning districts,” Provence said. “Late in the process, city staff came back with some restrictions on multi-family districts. We agreed to that when you submit zoning code changes they can be shot down at any time, even if it’s due to a minor edit or clarification, so we ended up pushing a more conservative amendment in the end to be safe.”
Several council members have since changed their stance on the residential urban farm special use requirement, with plans to revisit the subject in the coming months.
As both a commercial hydroponic farmer and a board member of the Food Policy Council, I was a part of the code amendment process from the beginning. Between drafting language, submitting it, and receiving approval, the total process took nearly a year.
The incremental approach of targeting multiple on-the-books city codes one at a time rather than drafting a single urban agriculture ordinance has so far received no real opposition and required few resources from San Antonio policymakers. The next goals for the city’s urban farming community are to eliminate the special use permit requirement for residential lots and expand the amount of livestock legally allowed on residential properties (currently they’re limited to three chickens and two mammals).
One obstacle that is harder to remove is that Texas individual home owners associations (HOAs) can restrict farm or garden production and city governance has no ability to intervene. The authority of HOAs over their members’ property is protected at the state legislature, so a reduction in restrictions has to take place either at the neighborhood level or in the state capital. Most homes in San Antonio aren’t within HOAs, however.
In San Antonio, the code change resulted in a wave of excitement and participation in urban agriculture projects by the general public and the Food Policy Council in particular. More importantly, it signaled that the city is ready for commercial urban farming businesses to move in and flourish.
Mitch Hagney is a writer and hydroponic farmer in downtown San Antonio. Hagney is CEO of LocalSprout.