About the California Homegrown Food Act
The Sustainable Economies Law Center will soon seek a California legislator to author a bill in 2013 to reduce legal barriers to the cultivation and sale of homegrown and locally-grown produce. We have posted a summary of the bill here in order to seek feedback. Please post a comment letting us know your thoughts on the proposal below, or email Janelle.SELC [at] gmail.com with your questions and comments. Thank you!
Purposes and Summary
The purposes of the California Homegrown Food Act are to:
1) Increase access to fresh, locally sourced produce for all Californians regardless of location and other socioeconomic limitations;
2) Allow individuals to supplement their incomes through sale of produce grown at home or on other urban or suburban land; and
3) Reduce the carbon footprint of our food system by enabling the increased cultivation of produce in or near places it is consumed.
The Act will achieve these purposes by ensuring the rights of individuals and groups to cultivate and, in certain cases, sell edible plants. The Act will remove a handful of barriers arising from local zoning laws, private land covenants, and lease restrictions. Producers must, however, still comply with any and all relevant health, agricultural, and environmental regulations. The Act will specify the types of allowable food production practices and basis for regulation by defining three types of food growing activities and specifying reasonable limits and regulations thereof.
Findings and Declarations
The Legislature finds and declares all of the following:
a) California industrial agriculture is at risk due to water shortages, soil degradation, pollution, environmental and structural threats to the San Francisco Bay Delta, and the rising cost of oil. A food shortage from these problems is a real and imminent threat. Providing Californians with the capacity to feed themselves and their communities would drastically improve local food security and mediate the risks of water, soil, environmental, or fuel-related crises.
b) Though California is the “bread basket” of the United States and has regions of climate and land ideal for agriculture, a significant amount of California’s food is grown hundreds or thousands of miles from where it is consumed. This results in high transportation costs, energy consumption, and lost economic opportunity for our state. Even food grown in the heart of California’s farming region is expensive to disperse to the rest of the state due to rising fuel costs.
c) California is no exception to rising U.S. obesity and obesity-related diseases. It is important to note that:
1. Two-thirds of American adults and nearly one-third of American children are obese or overweight, putting them at risk for developing chronic diseases such as diabetes, heart disease, or cancer.
2. One in every nine California children, one in three teens, and over half of adults are already overweight or obese. This epidemic affects virtually all Californians.
3. These health conditions are preventable and curable through lifestyle choices that include consumption of healthy fresh foods.
d) One of every ten dollars spent on health care in the United States goes toward treating diabetes and its complications. Facilitating opportunities for California residents to grow and consume fresh, healthy foods will promote lifestyles and diets that benefit individuals and communities, as well as more effective use of public dollars.
e) Many homeowners associations have rules prohibiting homeowners from growing food in front yards or from selling food grown on the property.
f) Additionally, approximately 40% of Californians are renters and may, as a result of lease restrictions or disapproval by the landlord, face limitations on their ability to grow food on the land where they reside.
g) Providing Californians with increased opportunity to participate in small-scale entrepreneurial agriculture will supplement incomes during times of high unemployment and under-employment and stimulate local economies.
As used in this Act, the following types of uses shall be defined as follows:
Personal Agriculture: A use specific to residential zones in which individuals cultivate produce at their own residence for personal consumption or donation.
Community Garden: A use in which land managed by a public entity, nonprofit organization, individual, or group of individuals is used to cultivate produce for donation or for personal consumption by those cultivating the land.
Entrepreneurial Agriculture: A use in which land managed by a public entity, nonprofit organization, business entity, individual, or group of individuals is used to cultivate produce for the purpose of sale.
Produce: Raw, unprocessed fruits, vegetables, herbs, and nuts.
Portion of the Bill Addressing Local Zoning Laws
The California Government Code shall be amended to require that city and county governments allow the following agricultural uses, subject to the following regulations and restrictions:
a. Where Personal Agriculture shall be permitted: Personal Agriculture shall be considered an accessory use in residential zones.
b. Allowable Regulations of Personal Agriculture: Zoning regulations may not prohibit the cultivation of food plants in front or back yards for personal use. However, cities may make reasonable restrictions pertaining to height of plant material and the presence of dead plant material in front yards. Note that cities may not restrict the use of dead plant material that is to be used as ground cover, mulch, or compost. Cities may adopt regulations to restrict plants that could interfere with a public sidewalk.
a. Where Community Gardens shall be permitted:
1. In residential zones: Community Gardens shall be a permitted use.
2. In commercial zones: Community Gardens shall be a permitted use.
3. In industrial zones: Community Gardens shall be a permitted use.
b. Allowable Regulation of Community Gardens: Any structures for community gardening may be subject to the development standards of the zone as they apply to accessory structures
a. Where Entrepreneurial Agriculture shall be permitted:
1. In residential zones: Entrepreneurial Agriculture shall be a permitted use in residential zones and shall be considered an accessory use to a residence. However, any food plant cultivation for Entrepreneurial Agriculture purposes that occupies more than 5,000 square feet of land may be required by a city or county to obtain a conditional use permit. Entrepreneurial Agriculture in residential areas may be subject to the following additional restrictions:
A. Only mechanical equipment designed for household use may be used.
B. Retail sales and all other public use of the farm shall begin no earlier than 7 a.m. and end by 7 p.m. every day of the week.
C. Commercial deliveries and pickups are limited to one per day. On-site sales are not considered commercial pickups.
D. One identification sign is permitted, not exceeding 64 square inches in area.
2. In commercial zones: Entrepreneurial Agriculture shall be a permitted use.
3. In industrial zones: Entrepreneurial Agriculture shall be a permitted use.
b. Regulations on Entrepreneurial Agriculture: In all zones, odor, noise, and dust caused by Entrepreneurial Agriculture may be limited to “what a reasonable individual can tolerate” at a distance of more than 100 feet from site of the Entrepreneurial Agriculture activity.
Portion of the Bill Addressing Homeowners Associations
Section 1353.10 is added to the California Civil Code, to read:
a. Notwithstanding any other law, a provision of any of the governing documents of a common interest development shall be void and unenforceable if it does any of the following:
1. Prohibits, or includes conditions that have the effect of prohibiting, the use of a Homeowner’s front or back yard, for Personal Agriculture or Entrepreneurial Agriculture.
2. Prohibits, or includes conditions that have the effect of prohibiting, a Homeowner from the off-site sale or donation of produce grown on the Homeowner’s property.
b. This section applies only to yards that are designated for the exclusive use of the Homeowner.
c. This section shall not prohibit an association from applying rules and regulations restricting on-site sale of agricultural products.
e. This section shall not prohibit an association from applying rules and regulations restricting the hours of operation and the number of visitors to gardens within the association.
f. This section shall not prohibit an association from applying rules and regulations requiring that dead plant material and weeds, with the exception of straw, mulch, and other organic materials intended to encourage vegetation and retention of moisture in the soil, are regularly cleared from the front yard.
g. This section shall not prohibit an association from applying rules and regulations requiring that gardens and crops do not grow more than six feet in height to preserve aesthetic appeal and cleanliness.
Portion of the Bill Addressing Tenant Food Cultivation
Approximately 40% of Californians live in residences that they do not own, which means that such tenants may have restricted rights to cultivate food, depending on what is permitted by the landlord and the lease agreement. This Act would give tenants some rights to cultivate food, so long as such cultivation does not unreasonably interfere with existing landscaping or with common area uses by other tenants.
“Common area” refers to an area of the property that is shared with other tenants.
“Private area” refers to an area of the property that is for the exclusive use of a tenant.
The Act would protect the ability of tenants to cultivate and sell food, as follows:
a. A landlord shall allow a tenant to participate in Personal Agriculture or Entrepreneurial Agriculture under the following circumstances:
1. Container Plants: A tenant may cultivate food plants in containers, so long as:
A. The tenant regularly removes any dead plant material and weeds.
B. The placement of the containers does not interfere with any existing plants.
C. The placement of the containers does not interfere with any tenant’s parking spot.
D. The placement of the containers does not create a trip-and-fall hazard.
E. The placement of the containers does not cause water damage to any portion of the property.
F. If the containers are to be placed on top of grass, the landlord may require the tenant to re-plant grass prior to vacating the property.
2. Plants in the Ground or Raised Beds: A tenant may cultivate food plants in the ground or in a raised bed, so long as:
A. The tenant agrees to restore or pay for the restoration of any landscaping roughly to its original condition when the tenant vacates the property or ceases to engage in food cultivation.
B. The tenant regularly removes any dead plant material and weeds for the food cultivation area.
C. The tenant must not leave any hazards in the common area, including holes or gardening tools.
3. Impact on Neighbors and Other Tenants: A tenant may not engage in gardening activities in any common areas before 7:00am or after 9:00pm; gardening activities must not interfere with the quiet enjoyment of other residents and neighbors. If the landlord determines, due to complaints from other residents, that the garden area is interfering with the rights of other tenants or neighbors with respect to their quiet enjoyment of the property, the landlord may terminate the tenant’s gardening rights, with 30 days written notice. The notice must explain the basis for termination of gardening rights. Such notice does not constitute a notice of termination of tenancy.
4. Gardening in Common Areas: If the gardening is done in common areas, other residents must be notified in writing 15 days prior to the commencement of any food cultivation activity and given an opportunity to bring their concerns to the landlord’s attention. If more than 25% of the tenants object to the gardening activity in the common area and if their concerns are not addressed through a change in the gardening plan, then the landlord may prohibit the food cultivation activity in the common area.
5. Restoration of Landscaping: With the exception of container plants on paved areas, the landlord may choose to require an additional security deposit to ensure that all landscaping may be restored after the tenant vacates the property or ceases to engage in food cultivation.
6. Payment of Water and Waste Collection Bills: A landlord may require the tenant to enter into a written agreement regarding the payment of any excess water and waste collection bills stemming from the garden.
7. Inspection Rights: The landlord has a right to periodically inspect the garden area to ensure compliance with the above rules.
8. Off-Site Sales: The landlord may not prevent tenants from selling products derived from this gardening at an off-site location.
b. Furthermore, a landlord may prohibit a tenant from engaging in Entrepreneurial Agriculture, unless the tenant demonstrates that the Entrepreneurial Agriculture operations maintain in force either liability insurance covering injury to clients and guests in the amount of one hundred thousand dollars ($100,000) per occurrence and three hundred thousand dollars ($300,000) in the total annual aggregate, sustained on account of the negligence of the licensee or its employees, or a bond in the aggregate amount of three hundred thousand dollars ($300,000).