596 Acres is a nonprofit that connects NYC residents to the land resources around them; they’ve created a helpful map where NYCers can find vacant city-owned lots close to their homes.

Here’s a fun infographic (link to PDF) that explains how to get to work on a vacant lot in New York City:

(image source: 596acres.org)

Baltimore:

The City of Baltimore has made the process of finding a vacant lot in your neighborhood easier than ever with its Power in Dirt initiative.

Power in Dirt has compiled a spreadsheet of all the city-owned vacant lots that are available for adoption (the spreadsheet has recently been updated and turned out a little wonky, but it still should be usable.). To adopt a lot, simply fill out and submit this online form.

If you wish, the city will provide access to water to the lot for a fixed rate of $120.00 per garden season (March 1 through November 30).

Our local Baltimore videoconference site, held at DLA Piper’s beautiful office in Mount Washington, was also co-sponsored by:

• the Community Law Center, and
• the Maryland Volunteer Lawyers Service.

The seminar was a terrific employment law refresher, and included lots of important points for community gardens and urban farms.

Probably the most important point of the day was that both not-for-profit and for-profit organizations MUST differentiate carefully between employees and volunteers. 

Volunteers v. employees at a for-profit farm or garden.

It is illegal for for-profit businesses (including farms) to use volunteer labor. Therefore, all workers at a for-profit farm or garden MUST be employees. If there are non-employees (even friends and family) working at your for-profit farm or garden, that is a huge legal problem and you may owe back wages to the worker and back taxes and fines to the state or federal government, or both.

For-profit organizations may have unpaid interns, but they must follow a strict set of rules about the intern’s duties:

• The internship must be similar to training given in an educational environment.
• The internship experience is for the benefit of the intern, not of the organization.
• The intern does not displace regular employees but works under close supervision of existing staff.
• The employer derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded.
• The intern is not entitled to a job at the conclusion of the internship.
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Volunteers v. employees at a nonprofit farm or garden.

In order for their volunteers not to be classified as employees, nonprofit farms and gardens must be careful not to provide compensation to their volunteers. Compensation doesn’t have to be in the form of money; it can include produce or room and board.

The Department of Labor has stated that nonprofits can give volunteers small gifts of appreciation, as long as the gifts are not tied to productivity and as long as they are worth 20% or less of what an employee doing the same work would earn. Volunteers can also be “made whole,” or reimbursed for the expenses they undertake while volunteering (e.g., gas money or bus fare, lunch).

According to the Sustainable Economies Law Center, in recent years, state agencies throughout the country have been increasing their enforcement of employment laws; an audit from a state agency could reveal that an organization has been treating volunteers as employees, and could issue heavy fines as well as require payment of back wages and back taxes.

Employment law is very important for nonprofit organizations to understand! If you have specific questions about your own organization, contact a local attorney.

The two presenters were:

• Holly Freishtat, Food Policy Director for Baltimore City and
• Anne Palmer, Program Director for the Johns Hopkins Center for a Livable Future.

Though legal issues were not the main focus of the talk, I will highlight below a few topics the presenters covered that have legal implications.

Guide to Setting up a Farmer’s Market:

Ms. Freishtat mentioned that there is no guide to setting up a farmer’s market in Baltimore City. Such a guide would include all relevant regulations for setting up a market and a list of the various permits needed. [Perhaps this is a project that the Urban Agriculture Law Project can take up.] There are several large farmer’s markets in Baltimore City, but there is a market for many smaller markets throughout the week and scattered throughout various underserved neighborhoods.

Here is a general, short, practical (not legal) overview of how to set up a farmer’s market, written by the USDA: How to Start a Farmer’s Market.

Baltimore City food policy coalitions:

Two local government organizations that Ms. Freishtat mentioned that are working on food policy issues are the Baltimore Food Policy Initiative (BFPI) and the Baltimore Food Policy Advisory Committee (FoodPAC). The Baltimore Food Policy Initiative consists of (1) the City Office of Sustainability, (2) City Planning, (3) the City Health Department, and (4) the City Development Corporation. FoodPAC’s members, on the other hand, can include any individual or organization (including community gardens and urban farms) who are interested in food policy in Baltimore City.

Earlier this year, the US Conference of Mayors started a Food Policy Taskforce, of which Tom Menino, mayor of Boston, is the chair, and Stephanie Rawlings-Blake, the mayor of Baltimore, is the vice-chair.

“The food policy task force will focus on issues including reducing obesity, increasing access to healthy affordable food in low-income communities, and increasing local food procurement and entrepreneurship in cities. The task force will review issues and policy barriers to addressing food access, food security issues in urban areas including recommendations on increasing SNAP (Supplemental Assistance Nutrition Program) participation via recommendations on best policies and practices, 2012 Farm Bill, support for farmer’s markets, food desert mapping and healthy food retail.”

US Conference of Mayors 2012 Winter Meeting Agenda, p16.

Urban Agriculture Training Program:

The Baltimore Food Policy Initiative and the Baltimore City Office of Sustainability are developing an Urban Agriculture Training Program in collaboration with Future Harvest. The program aims to help farmers actually make a sustainable living by farming on larger plots of land in the city.

Rewrite Baltimore: 

The City has been undertaking a large-scale overhaul of its regulations, a project it is calling Rewrite Baltimore. The Office of Sustainability worked with the City Planning office in rewriting its animal husbandry ordinances to make it easier for Baltimore City residents to raise miniature goats, bees, rabbits, and chickens.

The Office of Sustainability also worked with the Planning Department to update the city building code to permit hoop house construction and to encourage community gardens.

Note: Baltimore City is an “independent city,” which means that it is not part of any county, but the city itself functions like a county. Baltimore County surrounds Baltimore City but does not contain any part of the City.

The state bill did not create the tax credit; it merely authorized Baltimore City or the counties to approve one, if they chose to.

Urban agricultural purposes include:

• crop production activities.
• environmental mitigation activities.
• community development activities, including recreational activities, food donations, and food preparation and canning classes.
• economic development activities.
• temporary produce stands to sell produce grown on-site.

The tax credit would be designed to offset some or all of the property taxes on the property used for urban agricultural purposes; the city or county would have the ultimate authority to determine the amount of the tax credit, any additional eligibility criteria for the credit, and procedures for applying for it.

In November 2011, the Baltimore City Council, following advice from the Mayor’s office, voted against the urban agriculture tax credit. 

In a time of severe budget shortfalls, cities like Baltimore are looking to maintain and increase revenue in any way they can, and city council members did not want to exempt urban agriculture from property taxes. The council member who sponsored the tax credit, however, pointed out that the city does often still give tax breaks to wealthier developers.

For example, the Baltimore Orchard Project seeks to:

• Glean fruit from trees in yards, streets and civic places, fruit that would otherwise go to waste, and distribute it to those in need.
• Partner with  individuals and organizations to plant trees, orchards and food forests for the benefit of the community.

Baltimore Orchard Project: About Us page.

Let’s think about an interesting legal question related to urban gleaning:

Sue owns a large apple tree, which grows near the border of her property; the property line is clearly marked with a fence. A few branches of Sue’s apple tree extend over the fence and hang above the yard of Sue’s neighbor, Janet. Sue seems to always have more apples than she can eat, and Janet would like to pick the apples that hang from the branches of Sue’s tree over Janet’s yard to share with her neighbors.

The question is: who owns the fruit on the branches above Janet’s yard?

The answer depends on what state Sue and Janet live in.

William Blackstone‘s traditional rule states:

Cuius est solum, eius est usque ad coelum et ad inferos.

[Loosely translated: "for whoever owns the land, it is theirs all the way up to the heavens and down to Hell."]

Under this rule, Janet owns the branches that have trespassed onto her property, because everything within her boundary lines, up to the heavens, belongs to her.

Ad coelum rule: California

California follows Blackstone’s rule, stating that Janet can cut the branches off, if she wishes, or recover damages for trespass from Sue (Grandona v. Lovdal, 21 P. 366, 369 (1889).).

Also, in California, “[i]f [Janet] has a right of ownership in the branches, as distinguished from the mere right to cut them off to the extent that they ‘encroach’ on his or her property, [Janet] also has an ownership right to the products attached to the overhanging branches,” in this case, the apples on the branches of Sue’s tree that hang over Janet’s land. (6 Cal. Real Est. § 14:15 (3d ed.).)

So in California, and any other states that follow the traditional rule, Janet may pick the apples that hang above her property to share with her neighbors. The apples belong to Janet, not Sue.

Trunk rule: Vermont, Connecticut

Other states have followed a different rule, which establishes the ownership of the tree and its branches, fruit, and roots solely by the location of the trunk.

A 19th century Connecticut case states: “If a tree, the trunk of which stands on the land of A, extend some of its branches over, and some of its roots into, the land of B, A and B are not joint owners or tenants in common of such tree; but it is, with such overhanging branches and the fruit thereof, the sole property of A; and if B gather the fruit from such overhanging branches and appropriate it to his own use, he is liable in trespass to A.” (Lyman v. Hale, 1836 WL 66 (Conn.).

Under this rule, Janet could not collect the apples that hang over her property, and she also could not prevent Sue from coming onto Janet’s property for the purpose of collecting Sue’s apples.

Janet could, however, treat the branches as a trespass on her property and either sue for trespass and receive damages from Sue or cut the branches down that hang over her property. Janet could also dig up any roots that have crossed to her property under the ground, because the traditional property ownership rule states that she owns her property down to the center of the earth.

Vermont follows the same rule in Skinner v. Wilder, 1865 WL 2196 (1865).

How strange that the “trunk rule” means that a neighbor may cut down branches entirely but may not pick fruit from those same branches.

]]> http://urbanagriculturelawproject.org/2012/05/16/urban-fruit-gleaning-trespass/feed/ 0 beckywitt http://urbanagriculturelawproject.org/2012/05/15/teaching-the-food-system/ http://urbanagriculturelawproject.org/2012/05/15/teaching-the-food-system/#comments Tue, 15 May 2012 18:46:37 +0000 beckywitt http://urbanagriculturelawproject.org/?p=128 ]]> The Bloomberg School of Public Health at Johns Hopkins University has put together a very interesting free curriculum called Teaching the Food System; elements of the curriculum can be used with high school, undergraduate and even graduate students.

The curriculum presents lots of interesting questions that intersect with urban agriculture, such as:

How is food connected with health, justice and the environment?

How does industrial food animal production compare with alternative approaches?

What are the strengths and limitations of local food systems?

How is our food supply dependent on ecosystems?

Though there aren’t many overt mentions of legal issues in the curriculum, it does discuss the Farm Bill, which is a federal statute that heavily influences the production of food in the United States.

Perhaps a UALP blog series on the Farm Bill is in order?

Also, there is a lecture TOMORROW, May 16th, 12:00pm-1:30pm at the Bloomberg School of Public Health, entitled Healthy Food Access in Urban Areas: Barriers and Solutions. I’ll be there, imagining ways in which state and local law can improve healthy food access for Baltimore residents.

Ground Rules: A Legal Toolkit for Community Gardens

Along with a very thorough lease, they’ve also included a gardener’s agreement (to be signed by each individual gardener), a set of community garden rules, and a checklist of legal issues to discuss in person at community garden meetings to make sure everyone understands their responsibilities.

• Offer samples at farmers markets.
• Make & sell food products.
• Sell meat & poultry.

Licenses and Regulation Updates for Farmers Marketing Value‐Added Products Directly to Consumers

Two things I learned from this handout:

1. Food products that do not require any kind of license include: unflavored honey, whole or uncut produce, whole or uncut fruits, fresh unprocessed herbs, non‐potentially hazardous baked goods, naturally acidic fruit jams and jellies, and eggs.
2. Under the On-Farm Processing License I mentioned in my earlier post, you can manufacture in a home kitchen (not just “on a farm”), but only during times when the kitchen is not being used for domestic purposes.

[L]and and people have suffered together, as invariably they must. Under the rule of industrial economics, the land, our country, has been pillaged for the enrichment, supposedly, of those humans who have claimed the right to own or exploit it without limit. Of the land-community much has been consumed, much has been wasted, almost nothing has flourished.

But this has not been inevitable. We do not have to live as if we are alone.

Wendell Berry’s 2012 Jefferson Lecture for the National Endowment for the Humanities.

I look around my new home city, and I see that many areas of Baltimore have “been pillaged for the enrichment of others.”

But, as Wendell Berry says, we do not have to live as if we are alone.

Community efforts like urban gardens and farms reconnect us to the land and people in our neighborhoods. They beautify and make productive land that others made useless, dangerous, and ugly.

Gardening will certainly not provide answers to all of Baltimore’s problems, but it might be a firm step toward the promotion of

economy, the making of the human household upon the earth . . . This is the economy that the most public and influential economists never talk about, the economy that is the primary vocation and responsibility of every one of us.

Id.

None of these owners actually did anything productive with the lot.

Finally, the last of the owners offered to sell the lot to Novella. She accepted.

At long last, Novella owned the property outright. She no longer had to worry about being kicked off the property as a trespasser or having her license revoked.

As a new landowner, however, she was now responsible for her property’s compliance with zoning law.

Local governments (counties, cities, and towns) use zoning law to lay out permitted uses of land, slicing up their jurisdiction into different areas: industrial, commercial, residential, etc. For each zone, there is a list of permitted uses (which you can do without asking anyone first) and conditional uses (which you need a permit to do).

So Novella’s lot is in Zone RM-2.

RM-2 Mixed Housing Type Residential Zone – 2. The intent of the RM-2 zone is to create, maintain, and enhance residential areas characterized by a mix of single family homes, duplexes, townhouses, small multi-unit buildings, and neighborhood businesses where appropriate.

Oakland Zoning Code § 17.17.010(A)(2), p99

Further on in the Code, Table 17.17.01 lays out the permitted and conditional uses for zone RM-2. Crop and animal raising agricultural activities are listed as conditional uses for RM-2, and are defined as follows:

Crop and Animal Raising Agricultural Activities include the raising of tree, vine, field, forage, and other plant crops, intended to provide food or fibers, as well as keeping, grazing, or feeding of animals for animal products, animal increase, or value increase.

Oakland Zoning Code § 17.10.610, p57

Because crop and animal raising are conditional uses in her zone, Novella must apply for a conditional use permit before she can raise those crops and animals.

The basic requirements for applying for a conditional use permit are:

A. That the location, size, design, and operating characteristics of the proposed development will be compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood, with consideration to be given to harmony in scale, bulk, coverage, and density; to the availability of civic facilities and utilities; to harmful effect, if any, upon desirable neighborhood character; to the generation of traffic and the capacity of surrounding streets; …

B. That the location, design, and site planning of the proposed development will provide a convenient and functional living, working, shopping, or civic environment, and will be as attractive as the nature of the use and its location and setting warrant;

C. That the proposed development will enhance the successful operation of the surrounding area in its basic community functions, or will provide an essential service to the community or region;

D. That the proposal conforms to all applicable regular design review criteria set forth in the regular design review procedure at Section 17.136.050;

E. That the proposal conforms in all significant respects with the Oakland General Plan and with any other applicable guidelines or criteria, district plan or development control map which has been adopted by the Planning Commission or City Council.

Oakland Zoning Code, §17.134.050, p479

For crop and animal raising, there are three additional criteria to obtain a conditional use permit:

1. The proposal will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood in terms of noise, water and pesticide runoff, farming equipment operation, hours of operation, odor, security, and vehicular traffic;

2. Agricultural chemicals or pesticides will not impact abutting properties or the surrounding neighborhood; and

3. The soil used in growing does not contain any harmful contaminants and the activity will not create contaminated soil.

Oakland Zoning Code, p103

The real problem with Novella’s lot, though the zoning code doesn’t make this very clear, is that Novella has been selling fruit, vegetables and meat on the lot. “[T]he likelihood that a yard garden could be challenged under a zoning ordinance depends on whether the garden starts to affect the residential feel of the neighborhood.” (Janelle Orsi, Not In My Backyard, p13)

Gardening is generally accepted to be a natural part of living on and enjoying your land. However, when the “garden” starts to look more like a money-making operation, or if it begins to bring noticeably increased vehicular or pedestrian traffic to a residential neighborhood, cities like to be able to monitor that change through conditional use permits.

So it’s not a matter of having to get a “conditional use permit for growing chard.” It’s about allowing, yet setting boundaries on commercial activity within a residential zone in the city. It may seem ridiculous in such a blighted neighborhood to focus on illicit rabbit meat sales, but zoning is not an entirely irrational system.

So Novella scraped up the money to get her conditional use permit (and to pay her fine for not having a conditional use permit already), with a lot of help from her blog readers through Paypal.

And now Ghost Town Farm is legally legitimate.