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Transcript of 06 02 14 Urban Ag Presentation Materials
2014 MUNICIPAL ATTORNEYS INSTITUTE
LEAGUE OF WISCONSIN MUNICIPALITIES
“Urban Agriculture and Urban Animal Keeping
Part 1: Urban Agriculture & Enforcement”
June 19, 2014
8:30 a.m.
Douglas J. Hoffer
Assistant City Attorney
City of Eau Claire
203 S. Farwell Street
Eau Claire, WI 54702
(715) 839-6006
June 18-20
Municipal Attorneys Institute
League of Wisconsin Municipalities
Chula Vista Resort
Wisconsin Dells, Wisconsin
Hoffer/Urban Agriculture and Urban Animal Keeping
2
I. HISTORY OF URBAN AGRICULTURE
a. Historically agriculture was often maintained close to cities because of
transportation limitations
i. Small scale agriculture such as home gardens common throughout
history as residential accessory use
b. Impact of industrialization
i. Created ability to safely transport food products farther distances
1. Refrigeration and refrigerated trucks
2. Air & train transport
3. Interstate highway system
ii. Increased demand for food thus making large scale commercial
agriculture more profitable
iii. Urban expansion created environmental and sanitation related
challenges that pushed a lot of agriculture out of urban areas
1. Significant reductions in urban animal keeping
a. Example: New York City
i. Health Bill of 1866 created regulatory
framework for dealing with health and
sanitation problems to enhance quality of
life and prevent the spread of disease
ii. In 1877 City Health Board banned chickens
and other fowl due to public health concerns
iv. Increased “suburbanization” pushed agriculture further away from
large cities
1. Increased focus on residential property values
c. Exceptions to movement away from urban agriculture
i. World Wars & Great Depression
d. Current trends
i. Movement towards relaxation of urban agriculture restrictions
Hoffer/Urban Agriculture and Urban Animal Keeping
3
II. IMPACT OF MODERN ZONING LAWS ON URBAN AGRICULTURE
a. History of Zoning Laws
i. First Wisconsin zoning ordinance created in 1920 (Milwaukee)
ii. Milwaukee zoning ordinance upheld by Wisconsin Supreme Court
in 1923, prompting other Wisconsin cities and villages to adopt
zoning ordinances. State v. Harper, 182 Wis. 148, 153, 196 N.W.
451, 452 (1923).
iii. United States Supreme Court upheld the police power of
municipalities to regulate land use via zoning ordinances as
constitutional in Village of Euclid v. Ambler Realty Co., 272 U.S.
365, 397 (1926).
b. Post Euclid – Federal government encouraged widespread adoption of
use-based zoning ordinances.
i. Standard State Zoning Enabling Act published in 1926; Standard
City Planning Enabling Act published in 1928
1. Formulated to promote health, safety, morals, and general
welfare
2. Designed to require zoning ordinance consistency with
comprehensive plan
c. Euclidean zoning districts generally divide geographical areas into
multiple zones or districts. Established zones or districts include
“permitted uses” and “conditional uses.” Zoning ordinances generally do
not include exhaustive list of prohibited uses.
i. Zones or districts
“First, zoning ordinances typically divide a geographic area into
multiple zones or districts. ‘Zoning ordinances comprehensively
assign compatible land uses to zoning districts throughout the
community.’ ... The municipality is generally divided into different
districts, such as residential, commercial, and industrial.” Because
zoning ordinances typically carve a geographic area into multiple
districts, they often consist of both the text of the ordinance and a
map showing the districts.”
Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338 Wis. 2d
488, 506-07, 809 N.W.2d 362, 371
Hoffer/Urban Agriculture and Urban Animal Keeping
4
“General zoning works by dividing the community into districts or
‘zones’ designated for different uses, such as residential,
commercial, industrial or agricultural use.”
Lynn Markham, Rebecca Roberts, Center for Land Use Education,
Zoning Board Handbook For Wisconsin Zoning Boards of
Adjustment and Appeals, 6 (2nd
ed. 2006) available at
http://www.uwsp.edu/cnr-
ap/clue/Documents/ZoningHandbook/Zoning_Board_Handbook.p
df
ii. Permitted uses
“Second, within the established districts or zones, certain uses are
typically allowed as of right and certain uses are prohibited by
virtue of not being included in the list of permissive uses for a
district. ‘In general, zoning ordinances provide landowners with
permitted uses, which allow a landowner to use his or her land, in
said manner, as of right.’”
Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338 Wis. 2d
488, 507, 809 N.W.2d 362, 371
“Permitted uses are allowed as a matter of right in all locations in a
zoning district and may be authorized by the zoning administrator
or building inspector with a simple permit. Authorization is non-
discretionary provided the project complies with general standards
for the zoning district, any overlay district or design standards, and
related building or construction codes.”
Lynn Markham, Rebecca Roberts, Center for Land Use Education,
Zoning Board Handbook For Wisconsin Zoning Boards of
Adjustment and Appeals, 7 (2nd
ed. 2006) available at
http://www.uwsp.edu/cnr-
ap/clue/Documents/ZoningHandbook/Zoning_Board_Handbook.p
df
iii. Conditional uses
“It has become increasingly common for zoning ordinances to
allow for uses that are conditionally permitted, which gives local
officials the power to make decisions on an individual, ad hoc
basis. Today, most zoning ordinances contain a combination of
permitted uses and conditionally permitted uses.”
Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338 Wis. 2d
488, 509-10, 809 N.W.2d 362, 372
Hoffer/Urban Agriculture and Urban Animal Keeping
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“Conditional Use – A use listed in the zoning ordinance that may
be allowed if found to be compatible with neighboring uses,
limitations of the site, and the purposes of the ordinance.
Conditions may also be attached upon approval.”
Lynn Markham, Rebecca Roberts, Center for Land Use Education,
Zoning Board Handbook For Wisconsin Zoning Boards of
Adjustment and Appeals, 7 (2nd
ed. 2006) available at
http://www.uwsp.edu/cnr-
ap/clue/Documents/ZoningHandbook/Zoning_Board_Handbook.p
df
iv. Accessory uses
“An accessory use must be subordinate or incidental to the
principal use.”
Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use
Planning and Development Regulation Law, 585-86 (2d ed. 2007).
“[W]hether a use of land is permitted as an accessory use, it is not
enough to determine whether that use is incidental to the main use;
the use must be habitually, commonly, and by long practice
established as a reasonable use. Factors to consider are: size of the
lot in question; nature of the primary use; use made of adjacent
lots; economic structure of the area; and the actual incidents of
similar use in the area.”
Town of Avon v. Oliver, 2002 WI App 97, 253 Wis. 2d 647, 661,
644 N.W.2d 260, 267 quoting 83 Am.Jur.2d Zoning and Planning
§ 224 (1992).
v. Legal non-conforming uses, structures, and parcels
“A nonconforming use is a use of land for a purpose not permitted
in the district in which the land is situated Land use qualifies as
‘nonconforming’ if there is an active and actual use of the land and
buildings which existed prior to the commencement of the zoning
ordinance and which has continued in the same or a related use
until the present.
Waukesha Cnty. v. Seitz, 140 Wis. 2d 111, 114-15, 409 N.W.2d
403, 405 (Ct. App. 1987) (internal citations omitted).
Hoffer/Urban Agriculture and Urban Animal Keeping
6
The property owner bears the burden to prove by a preponderance
of the evidence that the nonconforming use was in existence at the
time that the ordinance was passed. This burden also requires the
property owner to show that the use was “so active and actual that
it can be said he [or she] has acquired a ‘vested interest’ in its
continuance.”
Waukesha Cnty. v. Seitz, 140 Wis. 2d 111, 114-15, 409 N.W.2d
403, 405 (Ct. App. 1987) (internal citations omitted).
If the use is characterized as merely casual and occasional or
accessory or incidental to the principal use, then the use does not
acquire a nonconforming status.”
Waukesha Cnty. v. Seitz, 140 Wis. 2d 111, 114-15, 409 N.W.2d
403, 405 (Ct. App. 1987) (internal citations omitted).
Property owners who were aware of pending ordinance prohibiting
use at the time it introduced the use did not have a vested interest
in continuing the use.
Town of Cross Plains v. Kitt's Field of Dreams Korner, Inc., 2009
WI App 142, 321 Wis. 2d 671, 775 N.W.2d 283
d. Impact of modern Euclidean zoning on urban agriculture
i. Directly limited urban agriculture by limiting permissible uses
1. Agriculture seldom expressly permitted outside agricultural
zones.
“As a practical matter, homeowners do not need municipal
zoning allowances for small-scale gardening; planting
vegetables, fruit, or flowers is generally a permissible land
use. However, when gardening is improperly located on a
lot or begins to consume the majority of the property, the
agricultural activity may become subject to land use
regulations.”
Stephanie A. Maloney, Putting Paradise in the Parking
Lot: Using Zoning to Promote Urban Agriculture, 88 Notre
Dame L.Rev. 2551 (2013).
Hoffer/Urban Agriculture and Urban Animal Keeping
7
ii. Indirectly hindered urban agriculture through various
restrictions:
1. Building height limitations
2. Restrictions on types and number of accessory structures
such as sheds, greenhouses, hoop houses, fences, etc.
3. Side yard setbacks
4. Lot size restrictions
5. Restrictions on home businesses
6. Restrictions on types and number of animals
iii. Created significant risk for property owners interested in
anything more than small-scale accessory agricultural uses outside
agricultural zones.
“[B]ecause zoning laws are created at the community level
and require a certain level of specificity, regulations can
become so complicated that it is difficult for urban farmers
to understand what conduct is acceptable.”
Susanne A. Heckler, A Right to Farm in the City: Providing
a Legal Framework for Legitimizing Urban Farming in
American Cities, 47 Val U.L.Rev. 217, 254 (2012).
Zoning ordinances presumed valid. Challenge to zoning
ordinance must meet standard beyond a reasonable doubt.
Town of Rhine v. Bizzell, 2008 WI 76, 311 Wis. 2d 1, 20,
751 N.W.2d 780, 790
iv. (In theory) reduced number of nuisance lawsuits by resolving
land use conflicts in advance by limiting permissible uses.
1. Zoning ordinances permitting urban agriculture may not
preclude private nuisance actions or common law public
nuisance actions
“[Z]oning ordinances have the ability to regulate and
restrict urban farming, but zoning regulations cannot
provide any assurance to a farmer that they will not be sued
for nuisance.”
Susanne A. Heckler, A Right to Farm in the City: Providing
a Legal Framework for Legitimizing Urban Farming in
American Cities, 47 Val U.L.Rev. 217, 254 (2012).
“A land use may comply with the local zoning ordinance
and other relevant regulations, but still constitute a
Hoffer/Urban Agriculture and Urban Animal Keeping
8
nuisance because of the conditions or manner of operation
of the use.” 66 C.J.S. Nuisances § 30 (2011).
e. Additional ordinances that may impact urban agriculture
i. Animal control
ii. Public health
iii. Erosion control
iv. Noise
v. Licensing
vi. Building code
vii. Stormwater
viii. Property Maintenance
ix. Trees & Vegetation
III. “URBAN AGRICULTURE” DEFINED
a. Do your ordinances define “agricultural use” or “urban agriculture?”
i. Madison, WI Code of Ordinances § 28.211 Definitions
Agriculture, Animal Husbandry. All operations primarily oriented
to the on-site raising and/or use of animals, at an intensity of less
than one animal unit per acre. Fish farms are considered animal
husbandry land uses.
Agriculture, Cultivation. The use of land for growing or producing
field crops, including field crops for consumption by animals
located off-site or for tree farming or nursery operations.
Agriculture, Intensive. All operations primarily oriented to the on-
site raising and/or use of animals at an intensity equal to or
exceeding one (1) animal unit per acre, or agricultural activities
requiring large investments in permanent structures.
(a) To calculate number of animal units, use the most
current Animal Units Calculation Worksheet of the
Department of Natural Resources. This worksheet is
used to determine whether an operation will reach or
exceed one thousand (1,000) animal units, in which
case a WPDES permit is required under Wis. Admin.
Code ch. NR 243
Hoffer/Urban Agriculture and Urban Animal Keeping
9
b. “Agricultural Use” defined by statute:
i. § 66.0721(1)(a)
(a) “Agricultural use” has the meaning given in s. 91.01(2) and
includes any additional agricultural uses of land, as determined by
the town sanitary district or town.
ii. § 91.01(2)
(2) “Agricultural use” means any of the following:
(a) Any of the following activities conducted for the purpose of
producing an income or livelihood:
1. Crop or forage production.
2. Keeping livestock.
3. Beekeeping.
4. Nursery, sod, or Christmas tree production.
4m. Floriculture.
5. Aquaculture.
6. Fur farming.
7. Forest management.
8. Enrolling land in a federal agricultural commodity
payment program or a federal or state agricultural land
conservation payment program.
(b) Any other use that the department, by rule, identifies as an
agricultural use.
c. Urban Agriculture is: “an umbrella term that describes a range of food-
growing practices, from backyard gardens to urban farms” including home
gardens, community gardens, backyard animal keeping, and urban farms.
HEATHER WOOTEN & AMY ACKERMAN, NAT’L POLICY & LEGAL
ANALYSIS NETWORK TO PREVENT CHILDHOOD OBESITY & CHANGELAB
SOLUTIONS, SEEDING THE CITY: LAND USE POLICIES TO PROMOTE URBAN
AGRICULTURE 5 (MAY 2013), available at
http://changelabsolutions.org/sites/default/files/Urban_Ag_SeedingTheCit
y_FINAL_(CLS_20120530)_20111021_0.pdf
i. Urban agriculture is: ‘an industry located within or on the fringes
of a town, a city or a metropolis which grows and raises, processes
and distributes a diversity of food and non-food products, (re)using
largely human and material resources, products and services found
in and around that urban area, and in turn supplying human and
Hoffer/Urban Agriculture and Urban Animal Keeping
10
materials resources, products and services largely to that urban
area.’ It includes community and private gardens, fruit trees, food-
producing green roofs, aquaculture, farmers markets, small-scale
farming, beekeeping, and food composting.
Michael Broadway, Growing Urban Agriculture in North American
Cities: The Example of Milwaukee, 52 FOCUS ON GEOGRPAHY 23, 23
(2009)
ii. Urban agriculture is: a complex system encompassing a spectrum
of interests, from a traditional core of activities associated with
production, processing, marketing, distribution, and consumption,
to a multiplicity of other benefits and services that are less widely
acknowledged and documented. These include recreation and
leisure activities, economic vitality and business entrepreneurship,
individual health and well-being, community health and well-
being, landscape beautification, and environmental restoration and
remediation.
COUNCIL FOR AGRICULTURE SCIENCE & TECHNOLOGY TASK FORCE
REPORT NO. 138, URBAN AND AGRICULTURAL COMMUNITIES:
OPPORTUNITIES FOR COMMON GROUND 14 (2002).
iii. Urban agriculture is: a network of cultivation spaces and
production activities in which food is produced by and for the local
community and around which city government and administrative
departments, the private sector, non-profit coalitions and
neighborhood groups are involved in order to expand, support and
integrate these activities into the life of the city.
Kathryn J.A. Colasanti, Growing Food in the City: Two Approaches
to Explopring Sealing up Urban Agriculture in Detroit (2009)
(Michigan State University M.S. Thesis).
IV. POSSIBLE BENEFITS ASSOCIATED WITH URBAN AGRICULTURE
a. Access to fresh, healthy, and nutritious food – addresses problem of “food
deserts.”
b. Food safety and food security
c. Sustainability
d. Green space
e. Improved use of abandoned or underutilized urban space
i. Sometimes associated with increase in crimes such as drug use,
prostitution, and arson
f. Increased property values
g. Increased sense of community
Hoffer/Urban Agriculture and Urban Animal Keeping
11
h. Reduced environmental impact associated with longer range food
distribution
i. Increased infiltration of storm water run-off
j. Decreases erosion and topsoil removal
k. Improves air quality
V. POSSIBLE PROBLEMS ASSOCIATED WITH URBAN AGRICULTURE
a. Noise
b. Odors
c. Agriculture Use Assessment (Abuse)
d. Abandoned animals
e. Pesticides, animal waste, fertilizer runoff and other environmental
concerns
i. Proximity to environmental contamination
f. Reduced property values
g. Transmission of zoonotic diseases
VI. LAND USE POLICIES TO PERMIT OR PROMOTE URBAN
AGRICULTURE
a. Changes to comprehensive plans may be necessary because
ordinances must be consistent with comprehensive plans. Wis. Stat. §
66.1001(3):
(3) Ordinances that must be consistent with comprehensive
plans. Except as provided in sub. (3m), beginning on January 1,
2010, if a local governmental unit enacts or amends any of the
following ordinances, the ordinance shall be consistent with that
local governmental unit's comprehensive plan:
(g) Official mapping ordinances enacted or amended under
s. 62.23(6).
(h) Local subdivision ordinances enacted or amended under
s. 236.45 or 236.46.
(j) County zoning ordinances enacted or amended under s.
59.69.
(k) City or village zoning ordinances enacted or amended
under s. 62.23(7).
(L) Town zoning ordinances enacted or amended under s.
60.61 or 60.62.
Hoffer/Urban Agriculture and Urban Animal Keeping
12
(q) Shorelands or wetlands in shorelands zoning ordinances
enacted or amended under s. 59.692, 61.351, 61.353,
62.231, or 62.233.
i. “Consistent with” means furthers or does not contradict the
objectives, goals, and policies contained in the comprehensive
plan. Wis. Stat. § 66.1001(a)(am)
b. Comprehensive Plans and zoning ordinances designed to
accommodate Urban Agriculture should include or consider the
following:1
i. What policy goals are furthered by permitting certain urban
agricultural uses?
ii. What types of urban agriculture the community wishes to permit or
promote
iii. What locations are most/least appropriate for different urban
agricultural uses?
iv. Should urban agriculture be a permitted use or a conditional use?
1. Conditional use permit conditions
2. Require farm management plans? (Madison, WI)
v. What operating standards should be placed on urban agriculture
activities?
1. On site sales permitted?
vi. Identify lot size restrictions
vii. Identify locations with environmental contamination or similar
concerns
1. Soil testing requirements
viii. Identify ways to address possible run-off and soil erosion issues
ix. Restrictions or exemptions for structures
Municipal Code of Chicago § 17-9-0103.5-B
1 For model comprehensive plan language and zoning language for urban agriculture please see
http://changelabsolutions.org/sites/default/files/Urban_Ag_SeedingTheCity_FINAL_%28CLS_20120530%
29_20111021_0.pdf
Hoffer/Urban Agriculture and Urban Animal Keeping
13
Accessory buildings, such as sheds, greenhouses, hoophouses or
farmstands shall comply with the requirements of 17-9-0201-D.
Hoophouses or other fabric based shelters, which are not required
to obtain a building permit shall not be considered accessory
buildings. Hoophouses or other fabric based shelters shall be
securely attached to the ground and designed and constructed to
comply with appropriate standards in Title 13 of the Municipal
Code of Chicago.
x. Restrictions or exemptions for signage
VII. TYPES OF URBAN AGRICULTURE
a. Home gardens
City of Orlando Code of Ordinances § 60.223(a)(2)
Front Yard. At least 40% of the pervious area of the front and street
sideyards shall be landscaped with shrubs and groundcovers, or a
combination thereof. The remainder may be planted with turfgrass,
annuals and vegetable gardens, up to a maximum of 60%.
b. Community gardens2
i. Model ordinances3
1. Open space protections for community gardens
2. Use zone protections for community gardens
ii. Identifying appropriate locations for community gardens
1. Identify previous use(s) and possible contaminants
2. Obtain soil samples & interpret results
3. Identify risks
a. Higher risk uses may require more rigorous
sampling.
4. Perform necessary cleanup & other mitigation
iii. Community Garden defined
2 See the EPA’s interim guidelines for Safe Gardening Practices on brownfield sites available at
http://www.epa.gov/swerosps/bf/urbanag/pdf/bf_urban_ag.pdf 3Model comprehensive plan and model zoning ordinances are Available at
http://changelabsolutions.org/sites/phlpnet.org/files/CommunityGardenPolicy_FINAL_Updated_100608.pd
f
Hoffer/Urban Agriculture and Urban Animal Keeping
14
Madison, WI Code of Ordinances § 28.211
Community Garden. An area of land or space managed and
maintained by a group of individuals to grow and harvest food
crops and/or non-food, ornamental crops, such as flowers, for
personal or group use, consumption or donation. Community
gardens may be divided into separate plots for cultivation by one
or more individuals or may be farmed collectively by members of
the group and may include common areas maintained and used by
group members.
iv. Size limitations
Municipal Code of Chicago § 17-9-0103.5-A
Community gardens shall not be larger than 25,000 square feet,
except in POS districts. There is no size limit for community
gardens in the POS1 and POS2 districts
v. Limitations on composting
Municipal Code of Chicago § 17-9-0103.5-C
Composting is limited only to the materials generated on site, and
must be used on site, and must otherwise comply with the
standards of Section 7-28-715 of the Municipal Code.
Note: § 7-28-715 of Chicago’s municipal code is the portion of
Chicago’s “health nuisances” chapter dealing with composting
standards.
vi. If located on government property, must meet ADA accessibility
standards
vii. Limitations on product sales
Municipal Code of Chicago § 17-9-0103.5-D
Sales on site are limited to incidental sales of plants or produce
generated on site.
viii. Financing and acquiring land
1. No fee when using tax-forfeited land (Minneapolis)
2. Create nonprofit, possibly with other government entities to
acquire land or maintain community gardens (Chicago)
Hoffer/Urban Agriculture and Urban Animal Keeping
15
3. Use federal community development block grant funds to
support community gardens (Madison)
4. Use land trusts to acquire and preserve community gardens
(Boston, Philadelphia, New York)
ix. Program operated by City (Portland, Sacramento, Palo Alto)
x. Run-off & erosion concerns
xi. Advisory committee on Community Gardens (See Madison
Ordinance § 33.12)
c. Urban Farms
i. Defined
City of Detroit4
“A zoning lot, as defined in this article, over one acre, used to
grow and harvest food crops and/or non-food crops for personal or
group use. An orchard or tree farm that is a principal use is
considered an urban farm. An urban farm may be divided into
plots for cultivation by one or more individuals and/or groups
collectively. The products of an urban farm may or may not be for
commercial purposes.”
d. Rooftop farms (Chicago)
i. Reduces “urban heat island effect”
ii. Business licenses/on site sales?
iii. Building permits for structures
e. Backyard animals
i. See Larson presentation
f. Bees
i. Fences
Salt Lake City Code of Ordinances § 8.10.060
8.10.060: FLYWAYS:
4 City of Detroit urban agriculture ordinance is available at
http://www.detroitmi.gov/Portals/0/docs/legislative/cpc/pdf/Urban%20Ag%20Ordinance%20Abridged_Ap
r2013.pdf
Hoffer/Urban Agriculture and Urban Animal Keeping
16
A hive shall be placed on property so the general flight pattern of
bees is in a direction that will deter bee contact with humans and
domesticated animals. If any portion of a hive is located within
fifteen feet (15') from an area which provides public access or from
a property line on the lot where an apiary is located, as measured
from the nearest point on the hive to the property line, a flyway
barrier at least six feet (6') in height shall be established and
maintained around the hive except as needed to allow access. Such
flyway, if located along the property line or within five feet (5') of
the property line, shall consist of a solid wall, fence, dense
vegetation, or a combination thereof, which extends at least ten
feet (10') beyond the hive in each direction so that bees are forced
to fly to an elevation of at least six feet (6') above ground level
over property lines in the vicinity of the apiary
ii. Water
Salt Lake City Code of Ordinances § 8.10.070
8.10.070: WATER:
Each beekeeper shall ensure that a convenient source of water is
available to the colony continuously between March 1 and October
31 of each year. The water shall be in a location that minimizes
any nuisance created by bees seeking water on neighboring
property
iii. Swarm control
iv. Hive restrictions
Salt Lake City Code of Ordinances § 8.10.050
8.10.050: HIVES:
A. Honeybee colonies shall be kept in hives with removable
frames which shall be kept in sound and usable condition.
B. Hives shall be placed at least five feet (5') from any property
line and six inches (6") above the ground, as measured from
the ground to the lowest portion of the hive; provided,
however, that this requirement may be waived in writing by the
adjoining property owner.
Hoffer/Urban Agriculture and Urban Animal Keeping
17
C. Hives shall be operated and maintained as provided in the Utah
bee inspection act.
D. Each hive shall be conspicuously marked with the owner's
name, address, telephone number, and state registration
number.
v. Restricted to back yards
vi. Other safety measures
vii. Applicability of existing nuisance ordinances
Salt Lake City Code of Ordinances § 8.10.020
8.10.020: CERTAIN CONDUCT UNLAWFUL:
Notwithstanding compliance with the various requirements of this
chapter, it shall be unlawful for any person to maintain an apiary or
to keep any colony on any property in a manner that threatens
public health or safety, or creates a nuisance.
g. Hydroponic/Aquaculture/Aquaponic farming
i. Hydroponic defined
City of Detroit5
“A method of growing plants without soil, using mineral nutrient
solutions or water, or in an inert medium such as perlite, gravel, or
mineral wool.
ii. Aquaculture defined
City of Detroit
“The cultivation of marine or freshwater food fish, shellfish, or
plants under controlled conditions
iii. Aquaponics defined
City of Detroit
5 City of Detroit urban agriculture ordinance is available at
http://www.detroitmi.gov/Portals/0/docs/legislative/cpc/pdf/Urban%20Ag%20Ordinance%20Abridged_Ap
r2013.pdf
Hoffer/Urban Agriculture and Urban Animal Keeping
18
“The integration of aquaculture with hydroponics, in which the
waste products from fish are treated and then used to fertilize
hydroponically growing plants.”
iv. May involve
1. Zoning review
2. Building permit
h. Farmers’ Markets6
City of Stevens Point
LICENSE & PERMITS Sec. 12.02
12.02 PUBLIC SQUARE – FARMERS MARKET AND VENDING
AREA.
(1) There is hereby created and set aside that portion of the public square
as shown on the attached map and which shall be deemed the Farmers
Market and Public Vending area. This area shall be used exclusively for
farmers for the sale of farm produce and for the vending of other goods
and assorted products during the months of May, June, July, August,
September, and October of each year, between the hours of 4:00 A.M. and
5:00 P.M. of each day. The location and number of stalls shall be
determined by the City Clerk.
(2) The City Clerk’s office shall permit spaces to be used by vendors
pursuant to rules established by such office. Vending areas are established
as shown on the attached map. No motorized vehicles or large trailers are
allowed on the interior areas as shown on the attached map unless
approved by the City.
(3) Rules and regulations for sale of produce:
(a) Vendors spaces shall be reserved to the assigned vendor until
6:30 A.M. each day. All rights to the assigned space is forfeit for
that day in the event that the vendor has not arrived and occupied
the space by 6:30 A.M. A vendor space is not assignable by the
vendor.
(b) All produce must be grown within a 30 mile radius of Stevens
Point. Some exceptions may be made for Wisconsin grown
products not grown locally.
6 Model zoning ordinance and comprehensive plan language establishing farmers markets are available at
http://changelabsolutions.org/sites/default/files/From_the_Ground_Up-
Farmers_Markets_FINAL_20130415.pdf
Hoffer/Urban Agriculture and Urban Animal Keeping
19
(c) Produce purchased at wholesale or retail from third parties
shall not be permitted except from other market vendors who sell
at this market. (The intent is to allow farmers to fill a void they
may have due to crop failure or a particular produce shortage, by
purchasing that produce from other vendors who sell at the Stevens
Point Farmers Market. Farmers are still expected to grow their own
produce.)
(d) All vendors shall clean daily, their respective stall area and
shall remove all debris and waste generated by their sales and shall
not deposit such waste in adjacent dumpsters.
(e) All vendors are prohibited from using tobacco products within
the vending area or reserved space.
(f) Vendors shall not engage in hawking, or use a radio or any
sound amplification device emitting sound within the vending area
or reserved space.
(g) Vendors shall not deposit produce or other items for sale in
any area which would impede or hinder pedestrian or handicap
traffic.
(h) Vendors shall not make any disparaging remarks concerning
other vendors or make any false representation concerning their
products.
(4) Penalty. Any vendor violating any provisions of this ordinance may
suffer a forfeiture of not less than $10 nor more than $100 and in addition
the City reserves the right to revoke such vendors right to occupy a space.
i. Farmstands
Douglas County
§ 3.6 A-1 Agricultural District
…
1. Permitted Uses
…
(d) Roadside stands for the sale of products grown on the premises, if
sufficient off-street parking space for customers is provided.
j. Restaurant farms
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VIII. PURSUING ENFORCEMENT ACTIONS AGAINST URBAN
AGRICULTURE
a. Urban Agriculture enforcement actions increasingly important
i. Increased volume of urban agricultural uses
ii. Pervasive agricultural use assessment abuse7
iii. Widespread encouragement of illegal urban agriculture as means to
effectuate change
Violating local zoning ordinances in support of local food
movement “is beneficial to the extent that it (1) acts as a catalyst
for change and innovation and (2) entices supporters of the local
food movement to actively participate in that movement.”
Sarah Schindler, Unpermitted Urban Agriculture: Transgressive
Actions, Changing Norms, and the Local Food Movement, Wis.
L.Rev. forthcoming (2014) Available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2414016
“DIY urbanist actions, even when illegal, strengthen civic values,
enhance community, and may serve to remedy deficits in existing
democratic processes.”
Celeste Pagano, DIY Urbanism: Property and Process in
Grassroots City Building, 97 Marq. L.Rev (2013) available at
http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=5
192&context=mulr
b. Agricultural Use generally violates zoning ordinances unless Ag use is:
i. Expressly “permitted use”
ii. Permitted as conditional use, owner has received conditional use
permit, and use complies with conditions of conditional use permit
iii. Permissible accessory use
iv. A legal non-conforming use
c. Bringing Ag Use Zoning Code Enforcement Actions Preliminary
Issues
7 http://law.marquette.edu/facultyblog/2013/02/04/ending-agricultural-use-assessment-abuse/
Hoffer/Urban Agriculture and Urban Animal Keeping
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i. Zoning Code enforcement notice requirements often very specific
1. Notice of violation may need to be in writing, by a specific
municipal official, with a specific time period to correct the
violation.
ii. Does your zoning code designate official(s) responsible for
enforcement?
1. Building Inspector
2. Zoning Administrator
3. Police Department
iii. Deciding method of enforcement
1. Citation or long form complaint
2. Equitable Relief
a. Not available in municipal court – injunction to
abate nuisance only available in circuit court.
d. Public Nuisance actions
i. Public nuisance-at-law. Continuous violation of zoning
ordinance is defined as public nuisance under most zoning
ordinances.
City of Eau Claire
18.11.240 Enforcement and penalties. Any violation of the
provisions of this chapter by any person shall be unlawful and shall
be referred to the municipal attorney who shall expeditiously
prosecute all such violators. A violator shall, upon conviction,
forfeit to the municipality a penalty of not less than $50 and not
more than $500, together with a taxable cost of such action. Each
day of continued violation shall constitute a separate offense.
Every violation of this chapter is a public nuisance and the creation
may be enjoined and the maintenance may be abated by action at
the suit of the municipality, the state, or any citizen thereof
pursuant to s. 87.30, Wis. Stats.
(emphasis added)
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Repeated violations of municipal ordinances constitute a public
nuisance-at-law. State v. H. Samuels Co., Inc., 60 Wis. 2d 631,
639, 211 N.W.2d 417, 421 (1973).
Note: “Nuisance” is not defined in Wisconsin Statute Chapter 823
ii. Common law public nuisance
“Conduct which interferes with the use of a public place or with
the activities of an entire community is called a public nuisance.”
Schiro v. Oriental Realty Co., 272 Wis. 537, 546, 76 N.W.2d 355,
359 (1956)
1. Common law public nuisance actions are notoriously difficult:
“Nuisance” is “incapable of an exact and exhaustive definition
which will fit all cases.” Lindermey v. City of Milwaukee, 241
Wis. 637, 640, 6 N.W.2d 653, 655 (1942)
“It would be difficult to find a term which has been the subject
of more mystifying confusion of utterance in the reports and
texts.” Schiro v. Oriental Realty Co., 272 Wis. 537, 545, 76
N.W.2d 355, 359 (1956)
2. Wisconsin courts sometimes look to the Restatement (Second)
of Torts when interpreting nuisance law. See Milwaukee Metro
Sewerage Dist., 2005 WI 8, ¶ 25 n.4, 277 Wis. 2d 635, 691
N.W.2d 658.
iii. Where public nuisance is defined by ordinance, courts must
apply ordinance definition, not common law definition of “public
nuisance.”
Here, the circuit court erred because it did not apply the definition
of “public nuisance” as stated in the Town of Rhine's ordinance.
Instead of applying the ordinance language, the circuit court
applied a common-law definition of “nuisance.”
Town of Rhine v. Bizzell, 2008 WI 76, 311 Wis. 2d 1, 46-47, 751
N.W.2d 780, 803
iv. Common Law Public Nuisance in Agricultural use context
1. Courts examine various factors:
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Therefore, we reverse the court of appeals. The law in
Wisconsin on public nuisance is not governed solely by the
number of people affected. The number of people affected is
only one of several criteria in Wisconsin's rule of public
nuisance. Others referred to in this decision are the location of
the operation or property; the degree or character of the injury
inflicted or the right impinged upon; the reasonableness of the
use of the property; the nature of the business maintained; the
proximity of dwellings to the business; and the nature of the
surrounding neighborhood or community. It is for the trier of
fact to apply the evidence received to the criteria to be
considered in determining whether a public nuisance is present.
That evidence, depending on the circumstances of the case,
may prove one or all of the criteria or a combination of the
criteria, but with varying degrees of severity in each.
State v. Quality Egg Farm, Inc., 104 Wis. 2d 506, 520-21, 311
N.W.2d 650, 657-58 (1981)
v. Distinction between public nuisance and private nuisance
actions:
A public nuisance is one that affects the
public generally and the lawsuit to abate the
nuisance is usually brought by a
governmental unit. A private nuisance is an
interference with the use of nearby real
property and the lawsuit to abate the nuisance
is brought by an individual with an ownership
interest in the affected property. WIS.
LEGISLATIVE COUNCIL, LEGAL
MEMORANDUM NO. LM-2000-12,
WISCONSIN’S RIGHT-TO FARM LAW 2 (2000)
e. Agricultural use assessment abuse enforcement actions
i. Do local ordinances permit (primary) agricultural use?
1. If no – violation of zoning ordinance and usually public
nuisance at law.
2. Zoning ordinances “presumed valid and must be liberally
construed in favor of the municipality.” Town of Rhine v.
Bizzel, 2008 WI 76, ¶ 26, 311 Wis. 2d 1, 751 N.W.2d 780.
ii. Zoning violation is not sufficient reason for assessor to deny an
agricultural use assessment:
Hoffer/Urban Agriculture and Urban Animal Keeping
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“It is not necessary for a parcel to be zoned as agricultural
in order to be classified as agricultural for assessment
purposes. Municipal zoning is not an adequate reason to
deny the agricultural classification. Determination of
agricultural status is based solely on whether use of the
parcel is agricultural in nature.”
Wisconsin Property Assessment Manual at 360, available at
http://www.revenue.wi.gov/slf/wpam/wpam.pdf
“State statutes supersede local ordinances, and therefore,
this land would require classification as agricultural land,
because it meets the definition of agricultural land under
Chapter Tax 18. Enforcement of the ordinance would be a
municipal decision; once the land is no longer being used
for agricultural purposes, either through enforcement of the
ordinance or the land owner’s choice, the classification
should be changed from agricultural to another
classification. If land was devoted primarily to a qualifying
agricultural use under Tax. 18.05(1) during the prior
production season and was compatible with agricultural use
on January 1 of the current assessment year, even if in
violation of ordinance, easement, or contract, the land must
be classified as ag land for the current assessment year.
The ag classification would apply until such time that the
land is no longer devoted primarily to a qualifying
agricultural use.”
(emphasis added).
Use-Value Assessment Frequently Asked Questions –
Wisconsin Department of Revenue” available at
http://www.revenue.wi.gov/faqs/slf/useassmt.html
iii. Minimum/Maximum per day forfeiture
1. “[C]ourt can and should exercise its discretion within those
limits but cannot impose forfeitures either above or below
those limitations.” State v. City of Monona, 63 Wis. 2d 67,
216 N.W.2d 230 (1974); see also Village of Sister Bay v.
Hockers, 106 Wis. 2d 474, 479, 317 N.W.2d 505 (“When a
[municipal] legislative body, acting within its authority,
sets minimum and maximum forfeitures, the court has no
authority to impose less than the minimum forfeiture.”).
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To impose forfeiture below minimum or above the
maximum “is beyond [the court’s] permissible discretion
and a forfeiture imposed either above or below the statutory
limits is void.” City of Monona, 63 Wis. 2d 67, 72, 216
N.W.2d 230 (1974)
2. But see Wis. Stat. § 800.095(4) (4) “The court may, at any
time, authorize payment of the monetary judgment by
installment payments, or may modify, suspend, or
permanently stay the monetary judgment, or order that the
judgment be satisfied by community service.”
Note: Statute authorizes municipal courts to modify
judgments “at any time” not “for any reason.” Court
should articulate basis for modification (i.e. excessive,
indigency, etc.).
iv. Injunction against agricultural use
1. “[U]pon the determination of an ordinance violation, the
proper procedure for a circuit court is to grant the injunction,
except when it is presented with compelling equitable
reasons to deny it.” Village of Hobart v. Brown County,
2005 WI 78, ¶ 34, 281 Wis. 2d 628, 698 N.W.2d 83 citing
Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715
2. Does defendant have unclean hands?
a. Did the defendant request zoning amendment?
b. Did the defendant knowingly violate local
ordinances?
3. Municipal Assessors decision to classify agricultural use
does not estop municipality from enforcing zoning
ordinances.
a. A municipality cannot be estopped from asserting a
violation and seeking to enforce its ordinances.
Snyder v. Waukesha Cnty. Zoning Bd. of
Adjustment, 74 Wis. 2d 468, 477, 247 N.W.2d 98,
103 (1976) (Mere statements or assurances of the
building inspector cannot confer a right to violate
zoning ordinance).
v. Wisconsin’s Right to Farm law - Wis. Stat. § 823.08
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1. Limits some private nuisance remedies; it does not
similarly limit public nuisance actions
§ 823.08(1):
(1) Legislative purpose. The legislature finds that
development in rural areas and changes in agricultural
technology, practices and scale of operation have
increasingly tended to create conflicts between agricultural
and other uses of land. The legislature believes that, to the
extent possible consistent with good public policy, the law
should not hamper agricultural production or the use of
modern agricultural technology. The legislature therefore
deems it in the best interest of the state to establish limits
on the remedies available in those conflicts which reach the
judicial system. The legislature further asserts its belief that
local units of government, through the exercise of their
zoning power, can best prevent such conflicts from arising
in the future, and the legislature urges local units of
government to use their zoning power accordingly.
(emphasis added)
“Finally, although the state’s Right to Farm Law
significantly limits private nuisance actions against
agricultural operations, it does not similarly limit public
nuisance actions.” Brigid W. Massaro, Navigating the
“Impenetrable Jungle”: Statutory Limits on Wisconsin
Public Nuisance Actions, 90 MARQ. L.REV 95, 110 (2006).
“Section 823.08, Stats., appears to apply only to litigation
regarding private nuisances, although this is not expressly
stated in the statute” WIS. LEGISLATIVE COUNCIL, LEGAL
MEMORANDUM NO. LM-2000-12, WISCONSIN’S RIGHT-TO
FARM LAW 2 (2000)
2. The purpose of Right-to-Farm Laws is to codify the
“coming to the nuisance” defense which is generally only
available in private nuisance actions:
“[Right-to-Farm] statutes, in various degrees, attempt to
codify the “coming to the nuisance” defense in situations
where the challenge comes from landowners who have
moved into a heretofore agricultural area but who object to
various, often inherent, aspects of agricultural operations,
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such as odor, noise, or machinery uses that seem to be
threatening to a more urban lifestyle.”
Julian Conrad Juergensmeyer & Thomas E. Roberts, Land
Use Planning and Development Regulation Law, 585-86
(2d ed. 2007).
3. In codifying the “coming to the nuisance” defense, Wis. Stat.
§ 823.08 includes language which demonstrates applicability
only to private nuisance actions:
(3) NUISANCE ACTIONS. (a) An agricultural use or an
agricultural practice may not be found to be a nuisance if
all of the following apply:
1. The agricultural use or agricultural practice alleged to be
a nuisance is conducted on, or on a public right−of−way
adjacent to, land that was in agricultural use without
substantial interruption before the plaintiff began the use of
property that the plaintiff alleges was interfered with by the
agricultural use or agricultural practice.
2. The agricultural use or agricultural practice does not
present a substantial threat to public health or safety.
(emphasis added)
vi. Conversion charge
Property that has benefited from agricultural classification and use-
value assessment may be subject to a conversion charge when the
use is converted to a residential, commercial, or manufacturing
use, or becomes exempt and the use is no longer agricultural.
Guide to Estimating Charge for Conversion of Agricultural Land
available at http://www.revenue.wi.gov/slf/useval/uvinst.pdf