You Can’t Grow That Here: Obstacles to an Agrarian Renaissance
By Ryan Petty
24 San Joaquin Agric. L. Rev. 277 (2015)
San Joaquin Agricultural Law Review
It is no secret that an adequate food supply is an essential element to the continued survival of the human species. Bearing this in mind, it is necessary to consider the risks inherent in the United States’ increasing dependence on imported foods, population growth, and other environmental and industrial factors, such as sprawl and the emergence of the biofuel industry. Recognition of these risks has resulted in an increased interest in local foods and a heightened appreciation of the need to pursue sustainable agricultural practices.
To fully understand the precarious state of our current food system it is helpful to compare current agricultural practices employed in the U.S. to those utilized by Cuba in the years prior to the food crisis experienced in that country. The Cuban system of producing and supplying food prior to 1990 was fraught with unrealized vulnerabilities. The problematic nature of the Cuban agricultural system in place prior to 1990 became apparent when the Cuban people experienced a food-shortage crisis and faced the real possibility of starvation had they not implemented a more self-sufficient means of producing food.
While there is ample evidence to substantiate the benefits of growing food for personal use, the opportunity to do so for those living in urban areas has not been given adequate consideration.
Two primary obstacles face homeowners wishing to make use of their land for agricultural purposes, the first of which is restrictive covenants that are enforced by a homeowner association. Zoning codes or ordinances implemented by local governments that designate what use may be made on land within a particular zone, also restrict.
Applying the standard of “enforceable unless . . . unreasonable” to instances where urban agriculture may run afoul of an existing restrictive covenant or of an amended declaration, requires that a determination be made as to whether the restriction “imposes burdens on the use of lands it effects that substantially outweigh the restriction’s benefits to the developments residents.” In other words, do the burdens imposed by restrictive covenants, which prohibit urban residents from growing food when as many as one-third of the residents in some communities suffer from “food insecurity” substantially outweigh the benefits to the development’s residents of an aesthetically pleasing lawn, particularly in a time of drought?
While public health may have been the focus of early zoning codes, the emphasis of zoning today is primarily concerned with maintaining property values and has had adverse effects on lower income communities. Research ties poverty, race, and environmental factors with the occurrence of chronic disease. Poverty stricken or minority neighborhoods tend to have less access to grocery stores than they do to fast food and liquor stores, which contributes to increased rates of disease associated with diet, such as diabetes. However, legislation has been introduced at the federal, state, and local level aimed at promoting urban agriculture and remedying these conditions.
Since courts typically show a high degree of deference to legislatures in enforcing restrictions on land use imposed by homeowner associations, it is necessary to pass legislation that will raise awareness of the problem with our current food system and facilitate the use of urban land for agricultural purposes. Given the objections of local governments to such legislation on a state level, the appropriate venue for such legislation would necessarily be at the local level by those who are better informed of the needs of their communities. Simply changing zoning ordinances that have been in place for the last century will not, in and of itself, bring about a change in state law regarding use restrictions imposed by homeowner associations. It will, however, have the effect of demonstrating a change in public policy and provide the courts with a viable argument against enforceability of restrictive covenants, which are prohibitive of home gardening.
This Comment addresses the manner in which current agricultural practices undermine the fragile state of our food system and the obstacles to home-based agriculture for members of homeowner associations and apartment tenants. It will also discuss the benefits of implementing policies that facilitate the growing of food at home for personal and community use.