Dear Modern Farmer,
I'm part of a group that's eager to start a community garden in our town. We want to do this without running afoul of our local zoning laws. What are the things we need to know before we get started growing?
A Bunch of Benevolent Bean Growers
A community garden can take any number of forms, but the basic premise is a group of people who want to grow their own food within a commonly shared and maintained space. From a legal standpoint, there are some things you need to do to make sure it runs smoothly.
1. Find Land
Obviously, you’re going to need a bit of land for your community garden. There are many ways this can be accomplished, but unless you’re in the position of owning a parcel outright for this purpose, it is very likely that a third-party landowner will be part of the equation.
For example, some municipalities have space available for a community garden, such as open space, parks, or undeveloped or blighted properties that are otherwise sitting idle. Though it may take some convincing on your part, many local officials are starting to embrace this kind of community asset, so these kinds of spaces are usually a no-brainer. In some places, like Arlington, VA, the government is actively involved in community gardens within city limits. Additionally, ask around at nearby non-profit organizations (including churches and synagogues) that may have land available for community garden space. Very often a community garden will fall within the charitable mindset of the organization and can result in a mutual relationship of goodwill. If you’re getting too much resistance from these places, look around for empty or underutilized areas of private land that might make the perfect spot for sowing peas. Find out who owns it (start with the local assessors’ office) and ask the landowner whether they’d be willing to allow a community garden — you just might be surprised by their answer.
A word about starting a community garden without prior permission on neglected or abandoned vacant land, or so-called “guerilla gardening.” Wearing my lawyer hat, of course I have to say that it’s usually breaking some laws, but clearly it happens (check out Richard Reynolds’ blog about these endeavors — the beauty created by these rogue efforts is undeniable). Should you decide to hoe down this row, be aware that you run the risk of being accused of trespass and might be forced to terminate your garden, even if you are many years in. It doesn’t always turn out that way, but it is a consideration you should make before you decide to plan and spend money to start an unauthorized endeavor on someone else’s land.
Incidentally, as I was putting together my answer to this question, the Wall Street Journal ran this article last week about the kind of conflict that can arise between community gardeners, government officials and others who want equal access to public space (though in this case, it is certainly among the more extreme examples). You can avoid such a scenario by following these guidelines or any of the great resources available online; your worst problem should be what to do with all of the extra zucchini.
2. Check the zoning code
Before you firmly settle on a parcel of land, make sure that the land is located in a zoning district that allows (or at least does not prohibit) community gardens. Some zoning codes expressly regulate and define them, such as in Raleigh, NC, while many do not. Additionally, even if the use of a community garden is allowed, you will need to determine whether things like related structures (sheds, hoop houses, etc.) are permissible, if there are any off-street parking or accessibility requirements that need to be met, and how garden-related issues like irrigation and run-off must be handled. Remember: If you violate zoning and get caught, you are potentially subject to civil and/or criminal penalties, not to mention a lot of wasted time, effort and money.
3. Determine your structure
What I mean is, determine how you want to run and operate the community garden as a legal entity. Of course it can be informal and loose, without any written legal mumbo jumbo, but that is often when problems arise. It does not have be anything complex, just a few documents that set forth how the group of gardeners will be organized and governed. For example, the group could be organized as an association, nonprofit or garden club. These kinds of organizations also lend themselves nicely to things like establishing garden rules, opening bank accounts, handling money, running meetings, admitting new members, etc. Additionally, you should consider having each community garden member/subscriber sign an agreement that sets forth their rights and obligations. There are several good model documents available online to assist you (see resources below).
4. Get permission and make a deal
Great, you’ve found some land to use! Now you need to secure permission and protect your interests. The landowner is going to want to protect her interests too, so it is advisable to get everything in writing up front.
A lease is the primary legal document that would be used to accomplish these objectives. From your point of view, you want assurance that you are going to have a long-term commitment from the landowner and that you are going to be able to undertake certain gardening-related activities without friction (assuming you otherwise comply with applicable laws). Some key provisions of the lease include, the length of your lease term (months or years), the rent (if any), the process for terminating and renewing the lease, who pays taxes and utilities, exactly where on the property you are permitted to garden (especially if it is a portion of a larger lot), and a host of other standard lease provisions.
From the landowner’s side, she wants to eliminate her liability should someone get hurt while on the property, ensure that a certain level of maintenance and care will be undertaken, and minimize the risks associated with vandals or vermin. To this end, it is likely that the lease will include some kind of indemnity or “hold harmless” clause — basically stating that if someone gets injured on the property or causes an actionable nuisance from the activities on the land, the landowner will not be responsible and cannot be sued. In other words, it will be the community gardeners that are on the hook. Many landowners will take the extra step and require that the gardening group secure liability insurance as well.
When it comes to drafting the lease, it might be wise to consult with an attorney, if you haven’t already. Even though there are many model leases available online, there are myriad clauses that could be included, so it helps to tailor the document for your specific situation and state/local laws. It can be a simple document, but it should clearly spell out what everyone’s rights and obligations are and what happens when those terms are breached on either side.
5. Consider insurance
Liability is one of the primary concerns both for the landowner and the entity operating or running the community garden. Some leases (or local laws if starting a community garden on public land) may require that you acquire liability insurance. Even if yours does not, it might be a worthwhile expenditure for peace of mind.
6. Make some rules
If you’re trying to grow a few tomatoes in your raised beds, and the guy next to you is growing 85 vines of meandering cukes while smoking cigarettes, you’re going to have some problems. This is where a good set of community garden rules is essential. These rules will specify exactly what each gardener must do, can do and cannot do (and what happens if you break the rules). Some good terms to include are the exact dimensions of each gardener’s plot (and ideally a requirement that all plants must be trimmed to exist inside those boundaries), watering requirements, a list of permissible plantings (sometimes with height restrictions), trash and clean-up responsibilities, when the plot is considered “abandoned,” the method of dispute resolution among gardeners or with others (landowner, neighbors, etc.) and what happens when there’s a violation. My favorite model rule that I’ve found? “Gardeners may not engage in sexual relations in the garden.” At least the plants are free to “do their thing”!
There are plenty of smart folks who have already written extensively about community gardens, and I highly recommend that you check some of them out for more information:
• Ground Rules: A Legal Toolkit for Community Gardens, by ChangeLab Solutions (formerly Public Health Law and Policy) – this has a great model lease and other agreements;
• The American Community Gardening Association has a great website (click on “Learn” to access a wealth of information about starting community gardens);
• The National Association of Realtors has a list (though somewhat dated) of links related to starting community gardens;
• The National Conference of State Legislatures has a decent page of applicable state laws; and
• The Local Government Commission has a handy four-page handout expounding the virtues of community gardens that might be useful when trying to convince others
Disclaimer: This information is general in nature and for educational purposes only. It is not intended as specific legal or any other advice for any individual case or situation. This information is not intended to create, and receipt or viewing thereof does not constitute, an attorney-client relationship. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.
Kristen M. Ploetz, Esq., is a zoning/land use attorney and Founder/Manager of Green Lodestar Communications & Consulting, LLC (www.greenlodestar.com)