When the staff of the City of Springfield presented an ordinance to the City Council on May 18 of this year, I'm not sure they knew the level of interest that would be inspired by its passage.
The one reading consent agenda description simply read, "a resolution to initiate an amendment to the Springfield land development code, article I, zoning ordinance, division IV, that all zoning districts shall permit urban garden uses. (planning staff recommends approval.)" However, the next day, a news release from the City's Public Information Office pointed out that permitting urban garden uses in all zoning districts wasn't all the Planning and Zoning Commission (P & Z) would be contemplating.
We now know, at a recent public hearing, P & Z tabled the amendment that had been drafted, with the intention of asking the City Council to form a citizen committee to study the issue of urban gardens.
Now that you've been reminded of the background on the issue, let's move forward.
I asked Councilman Nick Ibarra to assist me in finding out what State statutes, versus the City's proposed intent, had to say about the issue, as one State statute, in particular, raised questions when it was discussed at the public hearing with P & Z. Ibarra was able to provide the following information, which he received directly from the Missouri House of Representatives.
(A) constituent stated that Springfield is considering defining “urban garden” and requiring a business license and conditional use permit (for selling items from the garden). The constituent then noted the following apparent confusion or conflict regarding Missouri statutory provisions and the proposed municipal urban garden regulation.
Section 71.630, RSMo, prohibits cities from collecting a tax or license from a farmer or producer for sales of produce raised by the farmer or producer from the farmer’s or producer’s wagon, cart, or vehicle. Springfield ordinances currently authorize license taxes and regulations “upon all lawful objects of taxation” and then have a long list of examples of the types of occupations and businesses that would be taxable. Finally, section 71.010, RSMo, provides that charter city ordinances must not conflict with state statutes upon the same subject.
So, as I understand it, the constituent basically wanted to know whether an urban garden was a lawful object of taxation under city ordinance given the prohibition contained in section 71.630. Stated in this way, the question mixes apples with oranges. The issue of requiring a business license to sell produce, etc. grown in an urban garden is a separate, distinguishable issue from whether Springfield can define “urban garden” and regulate such through its zoning ordinance.
As to the issue of whether section 71.630 prohibits requiring a license to sell produce grown in an urban garden, the Springfield assistant city attorney is cited in the Springfield News-Leader as stating that 71.630 “applied to sales from ‘wagons, carts or vehicles,’ not from gardens.” I believe this is an accurate interpretation of the plain language of that section and it corresponds to the discussion of this statute in case law.
There is, however, another statute that could prohibit requiring a business license to sell produce from an urban garden. Section 150.030 provides:
"Any farmer residing in this state who shall grow or process any article of farm produce or farm products on his farm is hereby authorized and permitted to vend, retail or wholesale said products, free from license, fee or taxation from any county or municipality, in any quantity he may choose, and by doing so shall not be considered a merchant; provided, he does not have a regular stand or place of business away from his farm; and provided further, that any such produce or products shall not be exempted from such health regulations or police regulations as any community may require."
The question then becomes whether an urban garden would be considered a farm under this section and whether the owner of the urban garden would be considered a farmer. In the one case I found construing this section, a family corporation operated a nursery upon a 7-acre tract within Kansas City, which operation included the sales of flowers, shrubs, etc. that were grown on the tract. The Missouri Supreme Court declared that the family corporation was a “farmer” and a producer of “farm products” under section 150.030 such that an occupation license tax based upon gross receipts could not be collected for the products grown on the tract and sold there.
Another case discussing the definition of a farm (albeit in another context) also is helpful in this situation. That court was deciding whether a parcel of land between 5-6 acres within the corporate limits of the city of St. Louis upon which there was a house, a stable, and other outbuildings and which land the tenant cultivated as a truck farm constituted a farm or “lands devoted to agricultural purposes” in order to invoke the longer notice period required by statute to terminate a tenancy from year to year. The Missouri court approvingly cited four case law definitions of “farm” or “farming” from other jurisdictions, and a Webster’s dictionary definition:
“A farm may be of any size, of any shape, of any boundaries; may include less than one lot, or comprise several lots or parts of lots.”
“a farm, ‘in the ordinary sense, implies land cultivated-used in some way for the purposes of production by the owner thereof, . . .’”
“farming, “. . . is understood to mean the business of cultivating land, or employing it for the purposes of husbandry, and a farm is a tract devoted to cultivation under a single control, whether it be large or small, isolated or made up of many parcels.’”
“the modern definition of farm is given as follows: ‘Any considerable tract, or a number of small tracts of land, set apart for cultivation by a single occupant, whether as a tenant or owner, and upon which he resides.’”
“Webster defines a farm to be ‘any tract of land devoted to agricultural purposes, under the management of a tenant or owner.”
The nursery case construing section 150.030 and the approved definitions of “farm” stated above would clearly support a court finding that an urban garden is a farm for the purposes of section 150.030, and therefore a license, fee, or tax cannot be collected for the sales of products grown in that urban garden.
As noted before, however, this prohibition against a license or tax for sales of products from an urban garden would not prevent the amendment of the zoning ordinance to define and regulate urban gardens. Zoning is a land use tool and not a revenue production tool. (Note that a license or tax is an ongoing cost whereas a conditional use permit is a one-time fee.)
Note from "a constituent:" A big thank you to Councilman Ibarra for assisting "JackeHammer" in providing this information to the public!