Dear Modern Farmer: Is it Legal to Start an Urban Composting Program?

Dear Rich,

If you’ve been reading this column for any length of time, you probably know what I’m going to say: it depends. And, even if you are legally authorized to compost on-site, there might be specific compliance standards that you must follow. You’d also want to avoid creating any kind of nuisance situation, even if that is not expressly spelled out.

But let’s break it down, shall we? The laws, I mean. I assume you already know how to break down the organic waste.

First, allow me to clarify what we’re not talking about here: residential/home use and business/commercial composting efforts (and “fork to farm” programs, like this one). More often than not, composting is permitted (or at least not prohibited) in compost bins or piles maintained by homeowners on residential lots for personal garden or yard use. In fact, many communities actively encourage – or mandate, as is the case now in Seattle and which has been occurring for a while in San Francisco – homeowners and some types of businesses to compost their kitchen scraps and/or food waste.

What you are asking about is on-site composting for a community garden. Let’s also throw urban farms onto the heap because the answer would generally be similar.

As it turns out, the regulatory framework for composting is still relatively new and, in many cases, minimal or nonexistent. State and local governments often regulate composting via their rules and regulations for municipal solid waste (MSW) disposal. In some cases, this is achieved by creating two categories of activities, those that are “regulated” and those that are “exempt.” In other words, if the type and scale of composting is such that it falls under the “regulated” category, there may be specific standards as to where activities must be sited and how they are maintained, and a permit may also be required. On the other hand, these kinds of frameworks often carve out exceptions or “exempt” activities if the composting is limited to certain kinds and origins of materials and is under a certain size. You should begin by looking at your local and state MSW regulations to see if the type of composting you seek to undertake is addressed there. If the state and local laws happen to conflict in any manner (i.e., one is more restrictive than another), consult your local department of public works or sanitation since this is often the governmental body that enforces such laws.

Some municipalities (cities and towns) also regulate composting through their zoning codes, though the scope varies widely. Finding a zoning provision related solely to composting is exceedingly rare. Some zoning codes address composting through provisions related to community gardens and/or urban agriculture, but many do not. Often determining what might be allowed is pieced together through different sections of the zoning code, including the definitions section. This is why you should seek the guidance of your local zoning office first. Just because a zoning code doesn’t say you cannot compost in a community garden or at an urban farm, doesn’t necessarily mean that you can.

What is encouraging, however, is that local governments are beginning to understand the dynamics and importance of local food systems as a closed loop – including providing for the waste stream. This means they are (slowly) responding with updated zoning codes that should address the composting needs of community gardens and small-scale agriculture in urban areas.

When local zoning does address the kind of smaller scale composting we are talking about here, it might regulate some or all of the following aspects:

Principal or accessory use ”“ One of the often confusing provisions in zoning codes is whether an activity is considered a principal or accessory use on a lot, which often may even depend on the zoning district where the land is found; you will need to determine what zoning district your lot is located in and confirm that community gardens (or urban farms, as the case may be) are an allowed use, either as a principal use or an accessory use, and then determine whether composting is included within the scope of that use.

Source of materials ”“ Some only allow for organic materials that are generated on-site; for high production operations the amount of on-site materials available for composting might not meet the farm/garden needs for finished compost and could result in the need to have additional finished compost delivered

Types of allowed organic materials ”“ Urban areas are more likely to limit what can be composted on-site; yard waste and plant-based food scraps/unharvested crops are usually allowed, while animal waste is generally prohibited (unlike in rural farm areas).

Location of composting activities ”“ Some zoning codes will specify the permissible location(s) for compost piles and bins on a lot, including setback requirements and minimum distance from adjacent streets/buildings

Size/type of compost area ”“ Of those local zoning codes that address composting, some restrict the size of the compost area to a maximum square footage or calculate it based on a percentage of lot size, while others use a maximum threshold of cubic yards that composting activity might be restricted in some way; the manner of composting (bins, piles, rows) may also be limited in some way.

Nuisance controls and other factors ”“ Some zoning codes expressly require that composting activities remain nuisance-free in order to thwart odors and vermin/pests; others may also specify that access to water must be appropriately addressed or require certain moisture minimums. I will add to this my standard battle cry for promoting best neighbor practices: Even if the zoning code does not expressly caution against causing a nuisance situation, you should be considerate of your adjacent landowners regardless. Nothing will land you in hot compost tea faster than a stinky pile of rotting food and flies next to a less than enthusiastic neighbor.

Personally, I don’t think there needs to be a heavy regulatory hand when it comes to the kind of composting you seek to accomplish, because the overwhelming majority of folks who grow food and care for the land make good compost pile stewards. Still, you obviously want to make sure that you do not break any laws, so pay attention. In your area, you may very well find that the laws are unclear or do not consider the local food system as a whole. In that case, it might be prudent to push for some reform in this regard, much like what we are starting to see elsewhere, because forward thinking and comprehensive food and agriculture policies are finally getting the attention they deserve.

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, freelance writer, and Founder/Manager of Green Lodestar Communications & Consulting, LLC (www.greenlodestar.com).

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