Tuesday, July 07, 2009

Breaking: City Planning Staff Recommending Zoning Amendments Defining "Urban Gardens" be Tabled

...with an unpredicted ending

Even before the scheduled public hearing has been held, Planning and Development Senior Planner Daniel Neal indicated City Staff has recommended proposed ordinance amendments, related to "urban gardening," be tabled after the Planning and Zoning Commission (P&Z) holds its scheduled public hearing on Thursday night.

P&Z's public hearing on the issue will take place at 7 p.m., July 9, in City Council Chambers on the third floor of the Historic City Hall.

The purpose of the zoning ordinance text amendment regarding "urban gardens," as described in the staff comment section of a staff report was to have allowed, "an urban garden as a principal use on a vacant residentially zoned lot and an accessory use on a residentially zoned lot with a house."

Planning Staff was proposing to define an urban garden as, "A principal or accessory use where an individual or groups of individuals grow and harvest food crops and/or non-food, ornamental crops, such as flowers for personal use, group use, consumption, donation or to be sold for profit. Gardens may be divided," the proposed language stated, "into separate plots for cultivation by one or more individuals or may be farmed collectively by members of the group and may include common areas maintained and used by group members."

The Zoning and Subdivision Report from the Planning and Development Department was released on Thursday, July 2.

Part of the plan included requiring a business license and conditional use permit be obtained for certain "urban gardens" within Springfield. A recent "Springfield News-Leader" article reported the proposed conditional use permit would cost an urban gardener required to obtain it $1,120.

There may be a question as to whether the City of Springfield can legally mandate licensing, taxes, or fees on urban gardens within Springfield.

RSMo 71.630 states, "...No incorporated city, town or village in this state shall have the power to levy or collect any tax, license or fees from any farmer, or producer or producers, for the sale of produce raised by him, her or them, when sold from his, her or their wagon, cart or vehicle, or from any person or persons in the employ of such farmer or producer in any such city, town or village." Chapter 71 provisions are relative to all cities and towns.

Missouri Revised Statute 71.010 states, "Any municipal corporation in this state, whether under general or special charter, and having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the state, unless otherwise prescribed or authorized by some special provision of its charter, shall confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the state law upon the same subject."

Springfield, a first class, home rule city does have a provision within its City Charter that, "License taxes and regulations may be imposed by ordinance upon all lawful objects of taxation, including, but not limited to" an extensive list of occupations and businesses.

Show-Me Institute Attorney Dave Roland told JackeHammer, "Generally speaking, where you have a state statute prohibiting a City from taking certain actions, that will be binding on all Cities."

Roland had not had the opportunity to closely examine the proposed text amendment but, had been involved in a smoking ban case in Kansas City that had some similar circumstances. He wanted an opportunity to look closer at this issue but did say, "where there's a conflict, if the City tries to institute something prohibited by State law, the City's ordinance will give way (to the State statute)."

"I think that the statute cited (71.630) probably prevents the city from requiring a license to farm or to sell produce, and it very probably prevents the city from taxing the produce sold, " Roland wrote in an email. "However, I don’t think it would prevent the city from taxing the land itself, and it would probably allow the city to charge a fee for re-zoning the land (or granting conditional use permits) if they decided it was necessary, so long as the fee was similar to those charged for any other conditional use permit."

Roland felt an easier solution, "would be to modify the ordinances so that gardens not in excess of a certain area would be permitted in residential zones and the lots so used would be taxed at the normal rate for residential property." But, Roland also noted, "That doesn’t mean the city has to allow sales to take place there any more than it has to allow other types of businesses to operate in residential areas, which I think is a concern for those considering the changes."

According to Planning and Development Planner Neal, this issue got its start about three months ago, when Melissa Millsap submitted a zoning inquiry to the City.

"The applicant, Melissa Millsap, had wanted to purchase a piece of property adjacent to her and start a share/subscription based produce business which included a produce stand," Neal wrote in an email response. "She called it Community Supported Agriculture (CSA) and provided the City with some information from other municipalities that have adopted new regulations regarding this new form of urban agriculture."

Millsap was informed "her proposal could not be accomplished under the current zoning ordinance," Neal said. He said it was "discussed that in the residential district that only one principal use is permitted. This would mean if someone had a house on any size land under 20 acres that they could not establish a commercial garden on the premise."

He also noted, "The draft text amendment for discussion at Planning Commission would require a conditional use permit if commercial practices are taking place on-site in a residential district," but he added, City staff wanted to discuss it further with the Planning Commission and the public.

According to Neal, "The draft text amendment would delineate between an urban garden as a principal use with retail or wholesale sales on-site and one without."

Neal said, because, only one principal use is permitted in a residential district, the word "accessory" was added to accommodate situations where someone wanted to establish a commercial garden on land under 20 acres with a house on the premise.

If that is what the "draft text amendment" would delineate, then it failed to accomplish that goal as laid out in the "Propozed Zoning Ordinance Text Amendment" that was attached to the staff report released July 2. It was for that reason there was a question about the use of the term "accessory."

Item 4 of staff comments stated, "Staff is proposing to define an urban garden as a principal or accessory use when an individual or group of individuals grow and harvest food crops and/or non-food, ornamental crops, such as flowers for personal use, group use, consumption, donation or to be sold for profit." Later, Item 4 also stated, "This amendment will not affect accessory gardens in residential districts or any legally existing business."

Not clear was how, if a residentially zoned urban garden is defined as principal or accessory use within residential districts, it could be said that the amendment would not affect accessory gardens in residential districts. Neal's explanation is appreciated in that regard because the "draft" or "Proposed Zoning Ordinance Text Amendment" did not clearly distinguish when an urban gardener would be effected and when an urban gardener would not be effected. In fact, the text amendment raised far more questions than it answered upon reading it.

Millsap wants to purchase a lot within a residentially zoned district, adjacent to her home, for the principal use of farming crops. Not for an accessory use, with the principal use being that of housing. My understanding, if my "Sherlock Holmes" hat is sitting at the right angle, because, it is never clearly explained in the proposed text amendment, or even in Neal's email response, is that Millsap's principal use as a commercial garden, where no house sits, would require a conditional use permit, while my garden, as an accessory to the principal use of the lot, my residence, would not require a conditional use permit, even if I am selling produce from my house.

The report also revealed that of all the discussions staff members had with other cities which had instituted urban gardens, none of them permitted a retail operation in a residential district.

The report stated that most cities with successful urban garden programs are linked with other public entities, such as their Parks and Recreation Departments.

"Denver started something and it has evolved to what it is now where non-profit receives $285,000 per year from the CDBG (Community Development Block Grants) program to operate," the report said.

In an email, Neal repeatedly stated staff was open to discussion on the matter. That's a good thing. He did not indicate, if the Planning Commission agrees to table the amendment, when, or if, it might be picked up again or why staff had recommended it be tabled.

Perhaps Planning and Development has spent a little more time thinking about tying such "urban gardens" to public entities? Those cities tied (or "linked") to the urban garden projects are responsible for insuring the people who tend them. The city, or a non-profit organization of the City's development and/or choice, might stand to gain hundreds of thousands of dollars per year in CDBG grants if they shut out individuals like Melissa Millsap and cash in on the next "green thing." But, what about Melissa Millsap? What about other Melissa Millsaps in Springfield, Missouri?

Don't you just love unpredictable endings? Now that I think I fully understand the issue, I might have sided with Millsap. It appears she may be the underdog fighting against City Hall, and that old bloodhound has got the scent of money in its keen snout.


Note: a very slight edit was made to the original report



Busplunge said...

I thought the fee was for a variance in the zoning. When I put a barn up on my property, I got it too close to the property lines. I could go to P&Z and request a variance...which I might not get or tear down the barn or move it. I chose to move it.

the application fee for the variance was in excess of a $1,000 as I recall. And even if I paid the fee and requested the variance, I might not have got it.

It cost me $700 to move the barn.

Chestnut expressway said...


How far does the barn have to be from the Property line ?

Are you talking about a big barn or just a 10 x 12 shed or does it matter ??