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Plowing Over: Can Urban Farming Save Detroit and Other Declining Cities? Will the Law Allow It?

By Kristin Choo

August 1, 2011, 8:50 am CDT

It’s a warm day in April, and Skip Wiener is showing off the crown jewel of gardens that the Urban Tree Connection has created out of 29 vacant lots in the poverty-ridden Haddington neighborhood on Philadelphia’s west side.

The site, tucked away in the center of a block of 60 homes, once was used by a construction firm for storage. When Wiener, the founder and director of the UTC, was first alerted about the property by a local block captain, it was overgrown, riddled with industrial waste, and a haven for drug dealers and prostitutes.

It was just what the UTC was looking for. The nonprofit organization supports renewal efforts in low-income communities by turning abandoned open spaces into various types of gardens, including some devoted to growing fruits and vegetables.

The site is now called the Neighborhood Food Central Production Farm. Any remaining debris has been pushed to the side; wood chips have been sprinkled over the driveway; and, in the center, neat rows of vegetables are growing, marked by cheerful hand-painted signs announcing such crops as potatoes, bok choy, collards and cabbages.

The “farm” is special, partly because of its comparatively large size—two-thirds of an acre—but also because it’s the only property over which the UTC enjoys actual legal possession. On the others, says Wiener, the organization’s founder and executive director, “we’re basically squatting.”

The UTC’s farm typifies a growing but still uncertain movement to bring agriculture back to America’s cities.

GREEN GROUNDSWELL

Across the nation, thousands of urban gardens and farms are sprouting on empty lots, on parkland and in schoolyards. Food is being grown on rooftops, on traffic strips, even in containers hung on the sunny sides of buildings. And it’s not just produce. Pigs, goats, bees and chickens also are becoming city residents in growing numbers.

Municipalities are embracing agriculture not only as a means to combat a host of urban woes—hunger, air pollution and the proliferation of derelict, crime-ridden abandoned properties, to name a few—but as a cornerstone to efforts to make themselves healthier and more sustainable.

For the most part, however, local land-use regulations are lagging behind the fast-growing urban agriculture phenomenon. “Most cities don’t have zoning categories that recognize agriculture activities,” says Domenic Vitiello, who teaches urban planning at the University of Pennsylvania in Philadelphia.

Cities across the country are scrambling to update ordinances to regulate—and often facilitate—a variety of agricultural activities, including community gardens, commercial farms, backyard chicken coops and beehives. Meanwhile, many urban food growers and agricultural businesses operate under a cloud of extralegality, waiting for the law to catch up.

An important question, though, is whether all these legal changes will matter in the long run. It’s still uncertain whether agriculture will become a permanent feature of the landscape in U.S. cities or whether it is a short-term response to setbacks caused by the Great Recession and other economic factors.

This is not the first time U.S. cities have made agriculture part of their landscapes. It happened during other major economic downturns, and both of the 20th century’s world wars. Some 20 million victory gardens were planted during World War II, producing an estimated 40 percent of the nation’s fruits and vegetables.

But after each crisis passed, agriculture largely returned to its rural homeland. When World War II ended, the victory gardens disappeared as the plots they took up were put to more traditional urban uses.

Twentieth-century zoning law helped push agriculture back out of the cities. From its earliest inception, the premise of zoning law has been to separate what local governments viewed as incompatible land uses, says Patricia E. Salkin, a professor and director of the Government Law Center at Albany Law School in New York. She represents the ABA Section of State and Local Government Law in the association’s policymaking House of Delegates.

The nation’s first zoning law was enacted by New York City in 1916, when Fifth Avenue merchants became worried that their wealthy customers were being driven away by workers flooding the streets during lunch breaks from nearby factories. The merchants “put enormous pressure on the city council to separate different uses that were seen as incompatible,” Salkin says.

Following New York’s lead, municipal governments began to slice up towns and cities into different zones: industrial, commercial, residential, high-density residential and low-density residential, and so on. Each zone was assigned a list of permitted uses and conditional uses (which required special permits).

But by the 1990s, city planners had become disillusioned with this approach.

“By separating these uses all of the time, what we were really doing was perpetuating sprawl,” says Salkin. City dwellers often found they could no longer walk to work, eat lunch in a nearby park and stop for a quart of milk on the way home. This fostered a greater reliance on automobiles, causing more traffic congestion, oil consumption and air pollution.

“Now there’s a movement back to mixed-use development, and the recognition that there are a lot of things that are compatible that we used to think were incompatible,” Salkin says.

Increasingly, part of that mix is agriculture. Advocates of urban agriculture say it offers a cornucopia of benefits to urban residents. Small-scale community gardens that provide plots for local residents help bring fresh fruit and vegetables to inner-city “food deserts”—neighborhoods with few or no supermarkets and little access to fresh produce. These gardens also build a sense of community, promote healthy eating and help immigrants—many with food-growing skills—assimilate into their new homes.

There are environmental benefits, too, say advocates. By allowing rain to soak into the soil instead of running off concrete into sewers, green spaces help cities manage storm water. And locally produced food cuts down on truck traffic, saving fuel and reducing air pollution.

But the most intriguing role for agriculture may be as an antidote to urban blight in cities that have been pummeled by a changing economic climate. Simply put, the idea is this: When vast swaths of land in cities like Detroit and Cleveland are abandoned by residents and businesses headed elsewhere, it’s better to grow something on it than to let it just sit there.

IT’S NOT EASY BEING GREEN

In population, Philadelphia is the fifth-largest city in the United States. The 2010 U.S. Census Bureau estimate was about 1.5 million people. But the city also has some 40,000 vacant lots, mostly under private control, according to a 2010 study commissioned by the Redevelopment Authority of the City of Philadelphia and the Philadelphia Association of Community Development Corporations.

“Vacant land has a devastating impact on the neighborhoods and the finances of the city of Philadelphia,” states the report, Vacant Land Management in Philadelphia (PDF). “Vacancy results in blighted blocks, high maintenance costs and uncollected taxes.” The study estimates that it costs the city some $20 million a year to provide basic services for vacant lots. Meanwhile, the city loses some $2 million a year in uncollected tax revenue. And the vacant lots cost nearby property owners an estimated $3.6 billion in lost value.

The report emphasizes the benefits of developing vacant lots, but groups like the UTC say other uses, such as agriculture, can produce benefits as well.

The UTC’s successful lawsuit to gain conservatorship of the property that became the Neighborhood Food Central Production Farm was given prominent play by the local news media. The basis for the suit was a 2009 state law, the Pennsylvania Abandoned and Blighted Property Conservatorship Act, which allows investors to take control of derelict properties, clean them up, sell them and keep the profits. The text of the law suggests that it was written with abandoned buildings in mind, and it was not clear that a judge would apply it to a vacant lot for which the goal was not to sell the property but to make beneficial use of it, says Joel E. Tasca, a partner in the litigation department at Ballard Spahr in Philadelphia, who represented the UTC (and also serves on its board). But Judge William J. Manfredi of the Philadelphia County Court of Common Pleas—after learning that the property owner, who lived in Florida, had lodged no objection—ruled in the UTC’s favor.

Now the UTC is trying to obtain legal possession of its other community gardens. “Where there is a potential to have a garden contract with the city, I have it,” Wiener says. “Where I can’t, I’m just there. The reality is that every single piece of the land has to be approached uniquely. There is nothing cookie-cutter about it.”

Wiener hopes to knit the gardens into a single community-sponsored agriculture system that allows residents to purchase a share of the produce at very low cost, provided they participate in growing the food, and in educational and community-building programs. Plans include a farmer’s market to sell excess food.

“We don’t know how successful we’re going to be,” Wiener says, “but the buzz in the community is wonderful.”

One of the difficulties for Philadelphia groups like the UTC is the absence of a land bank—an agency charged with acquiring title to abandoned or tax-delinquent properties to sell or lease them to other parties—in Pennsylvania, although the state legislature is considering a bill to create one.

But even cities in states that have created land banks may balk at offering long-term leases to urban gardens and farms for fear they won’t be able to make properties available for potentially more lucrative uses by other investors later on. “The whole system is set to lead to profitable development,” says Catherine LaCroix, who teaches land-use law at Case Western Reserve University School of Law in Cleveland. “With all due respect to professional urban farmers, only one person I know is supporting his family on it.”

But urban agriculture needs longevity to reach its potential, says Kathryn Peters, who is finishing work on an article analyzing urban agriculture zoning rules in eight cities. She began it as a graduate assistant at the National Agricultural Law Center at the University of Arkansas in Fayetteville. The close proximity to other properties means that urban farms can’t rely on the heavy use of chemical fertilizers and pesticides typically used in industrial farming. For that reason, most urban farms employ organic farming techniques, such as using compost to enrich the soil. And, she says, “with no longevity, people aren’t going to put the time and money into it.”

Another concern is that being forced to periodically uproot and move defeats one of the signature purposes of community gardens and farms. The slogan of the UTC, for instance, is “Building community one vacant lot at a time.” Wiener says that goal is crucial. He describes the group’s network of community gardens as a “land-based social system” that has taken years to develop.

Janelle Orsi, an attorney in Berkeley, Calif., who also is co-founder and co-director of the Sustainable Economies Law Center in Oakland, says that when she drafts leasing contracts for urban farmers, she tries to get a commitment for five years. Barring that, she says, “I typically write into an agreement if you can’t get five years you at least get sufficient notice to enable you to move plants and the topsoil.”

SITTING ON A TIME BOMB

For a city like Detroit, which once was the colossus of the U.S. automotive industry, it might at first seem absurd to think that a key to changing its fortunes might be to bring more agriculture inside the city limits.

The argument that “promoting agriculture in a once world-leading industry will not return the economy to its prior status” is familiar to John E. Mogk, a professor at Wayne State University Law School in Detroit and an expert on land use and urban development law. “You’d have to be an idiot to think it would. That’s not the point. The point is, can agriculture provide at least some kind of interim use [of] what is now unproductive land?”

Researchers at Michigan State University in East Lansing maintain that the answer is yes. Their 2010 study, Growing Food in the City: The Production Potential of Detroit’s Vacant Land (PDF), concludes that such efforts could supply local residents with more than 75 percent of their vegetables and more than 40 percent of their fruits—a boon for a city where many residents live in food deserts.

That’s a tempting proposition for a city like Detroit, where the population dropped from 951,000 in 2000 to 713,000 in 2010, according to census figures. Detroit has lost more than a million residents since 1950, when its population of 1,850,000 made it the nation’s fifth-largest city. Now it ranks 18th and continues to shrink. But as Detroit loses residents, it gains vacant lots, which now number some 31,000.

There also are more than 400 community gardens and farms operating throughout the city. Most, however, exist on the shady side of the law because Detroit’s zoning ordinance does not recognize agriculture as a permitted use. And that in turn is an unintended consequence of a state law designed to protect rural farms from urban sprawl.

The Michigan Right to Farm Act was passed in 1981 during a period when the borders of the state’s cities were rapidly expanding into rural areas. Farms often found themselves suddenly subject to urban zoning codes that restricted agricultural activities, or the targets of nuisance suits filed by new neighbors objecting to the ordinary noises and aromas of farming.

The act renders commercial farms immune to nuisance lawsuits and exempt from local zoning codes as long as they comply with standards set by the Michigan Agricultural Commission.

But these standards were set for lightly populated rural areas, not cheek-to-jowl urban populations where the normal activities of rural agriculture might threaten the quality of life of residents unaccustomed to the smells and sounds of farms.

If Detroit passes ordinances recognizing agriculture as a permitted use, the Right to Farm Act would automatically kick in and render any attempts to set standards different from those of the Agricultural Commission invalid.

The city could petition the commission for an exemption, but according to the law, the commission may only grant exemptions on the basis of adverse impacts on the environment or health. Left out would be impacts on property values, aesthetics and the comfort of surrounding residents, Mogk says.

For now, the city has chosen not to enforce its existing zoning law because it recognizes the unpermitted gardens and farms as a “good and beneficial use,” says Mogk.

But this approach is risky. Mogk explains that if the city knows a landowner is engaging in unpermitted activity like farming and does nothing, it can run afoul of the legal doctrine of laches—which essentially says that an unreasonable delay in pursuing a right or a claim constitutes a waiver. A landowner can then assert the right to farm in the city. If she or he wins, then the Right to Farm Act kicks in and the city loses the ability to regulate the agricultural activity.

“The city is sitting on a time bomb,” Mogk says.

The next move may be up to Detroit’s mayor, Dave Bing, a former professional basketball player who spent most of his career with the city’s Pistons franchise in the NBA. He took office in 2009. “From a political perspective, the mayor is going to have to step up and take a position,” Mogk says. “But with all the other things on his plate so far, he hasn’t addressed the issue of the Right to Farm Act and the pre-emption of local control.”

While urban agriculture maintains an uncertain legal footing in Detroit, Cleveland is embracing it. “Right now, everyone is enthused about urban farming,” LaCroix says. “I think it’s partly because the place is so down that people are happy to see something growing.”

A key element of Cleveland’s revitalization plan—set forth in a report titled Re-Imagining a More Sustainable Cleveland (PDF), produced by a consortium of government bodies and public interest groups—is the promotion of long-term community gardens and commercial agriculture in the city. In 2008, the city sought to provide a new level of stability for community agriculture by creating an “urban garden district” zoning category. Under the zoning ordinance, land designated as an urban garden district may not be rezoned for another purpose without a process that includes public notice and hearings.

The city also set about the arduous task of updating its zoning code to accommodate urban agriculture. The process raised questions that other municipalities are dealing with as well: Who may grow food in the city and where? Are they allowed to sell what they grow? If so, what kind of permits do they need? May a homeowner grow food in the front yard? What kinds of chemicals may be used? What about structures like garden hoops, greenhouses, sheds and stands?

Things get even more complicated when it comes to raising farm animals in the cities—goats, pot-bellied pigs, bees and especially chickens. Cleveland’s revised code allows all livestock, although cows aren’t permitted in residential neighborhoods, LaCroix says.

“People are doing it because they want fresh eggs,” Salkin says. She says neighbors don’t seem to mind hens —but oh, those early-rising roosters!

When Seattle officials tried to ban roosters in the city’s updated zoning code, the uproar “almost derailed the whole legislation,” says Andrea Petzel, a planner for the city. “One woman brought a rooster to a public hearing as a pet.” In the end, the city stuck to its guns and banned roosters while allowing up to eight hens.

GROWTH SPURT

Seattle, a growing city that displays none of the economic stress that some old Rust Belt cities are experiencing, appears to have embraced urban agriculture more as a quality-of-life issue than as a strategy for urban renewal. In that way, Seattle’s approach may suggest a template for the future of urban agriculture.

A network of neighborhood gardens—called P-Patches —has existed in Seattle since the 1970s. Individual gardeners are matched to available plots by an online search engine. Spaces are leased through a nonprofit land trust.

There are now 75 P-Patches around the city, and wait times to get them have stretched into years. Meanwhile, the growing locavore movement—in which consumers purchase only locally grown food—has fueled demand even as recession-pinched backyard gardeners have clamored for permission from the city to earn extra money selling some of their produce. The city set about updating its zoning ordinance to accommodate these demands. “It really stemmed from a lot of community interest in seeing urban agriculture institutionalized,” Petzel says.

Seattle’s new rules for urban agriculture have been praised as a model of clarity, carefully specifying the “what, where and how” of permitted activities and taking into account various policy priorities. While all types of urban agriculture are permitted in commercial districts, for instance, they are limited in industrial areas to rooftop gardens and vertical gardens, in which produce is grown in containers hung on the sunny sides of buildings. “We didn’t want agricultural jobs competing with industrial jobs,” says Petzel.

Vitiello praises Seattle for setting forth clear rules. In contrast, he says, Philadelphia’s proposed agricultural ordinance presents puzzling obstacles to urban farms, such as a blanket requirement for fencing around all agricultural sites, and a requirement that urban farms and gardens maintain insurance coverage at a level that would cover a building on the property.

“It just reflects that our city hasn’t got into the details of what urban agriculture looks like—what it could and should look like,” Vitiello says.

But LaCroix cautions that provisions for agricultural activities in municipal zoning code ordinances can become overly detailed. She points to the new urban agriculture ordinance in Kansas City, Mo., which designates four different categories of agricultural use in residential areas, each with its own set of requirements. “Just reading what they have, you think, ‘This is so complicated you need a lawyer to figure it out. And I just want to have a garden.’ ”

Whether the current enthusiasm for urban agriculture continues is a subject of some debate. Kami Pothukuchi, a professor of urban planning at Wayne State University, thinks that this time, urban agriculture is here to stay. She says the current wave of interest has been around long enough to establish its credibility and the networks of political support needed to ensure its future.

But Richard C. Longworth, a senior fellow at the Chicago Council on Global Affairs, is skeptical, especially about claims that urban agriculture can provide a long-term solution to the food needs of inner-city residents. In a website article titled “Forget Urban Farms—We Need a Wal-Mart,” he argues that urban farms in inner-city neighborhoods constitute “a palliative, but no cure.”

But Orsi of the Sustainable Economies Law Center suggests that urban agriculture is just one part of what should be a larger movement toward sustainable approaches to food production. She argues that the best place to grow food is on the outskirts of cities, where densities are low enough to allow larger farms that are close enough to urban centers to avoid the energy costs of long-distance transport.

“It may not be the case that we always use vacant lots to grow food in cities, because those spaces are likely to be transformed into housing as the urban populations grow,” Orsi says. “However, there will always be some amount of space that we intentionally leave green, and I do think that a lot more of that will be used for food production—back and front yards, in particular.”

In the meantime, the issue is keeping at least a few lawyers busy. “Lately, I’ve been getting calls because I have the reputation for being the ‘go-to’ person on these matters,” Orsi says. “I wouldn’t say it is a good way to earn money, but it’s a great way to earn kale—and a lot of good will in the community.”

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Kristin Choo is a freelance writer in New York City.