Friday, September 11, 2009

BREAKING: The Urban Garden Task Force's Behind the Scenes Dilemma

Recently discovered Springfield City Code brings more questions about whether group should recommend the restriction of garden produce sales in any zoning district within the City

Urban Garden Task Force member Petra Butler has been researching Springfield's Municipal Code in order to get an understanding of what the City already has on the books related to the sale of fruits and vegetables within the City of Springfield.

The task force has wavered regarding whether to completely prohibit the sale of garden produce in a residential zoned neighborhood or allow limited sales of such produce. They've indicated they might recommend allowing sales of fruits and vegetables in residential zoned areas of the City at some point but, more crucial to them, at least at the last meeting, was defining categories of gardens and settling on a definition for each category. Such definitions could lay the groundwork for further, future government regulation of urban gardens.

Butler discovered a City Code that has the potential to make all speculation concerning sales of produce within the City of Springfield a moot point.

"I feel the whole premise of the Task Force is to make this simple. This shows that we already have a Code in place to address the issue," Butler wrote in an email.

The code in question, Chapter 98, Section 98-5 of Springfield's Municipal Code, provides for an exemption for fruits and vegetables from a prohibition against merchandise being "placed or displayed" on "any public way, street, sidewalk or front of the premises where sold," and the code even provides specific directions on how fruits and vegetables can be placed or displayed in "any public way."

The newly discovered municipal code could suggest a past municipal (city) precedent has already been set, and its intent was that those who sell fruits and vegetables be allowed to do so under the conditions outlined in that section of the code. The chapter and section implies it applies to all districts by the term "any public way." The code could be interpreted to include residential zoned districts simply because it does not preclude them.

Butler interpreted the prohibition contained in the code as applying to garage sale type sales and not to fruits and vegetables.

"I take that to mean that this requirement of two consecutive days and twice a year is for garage sales and does NOT apply for the selling of Fruits and Veggies," she wrote in her initial email, which included as a recipient assistant City attorney Nancy Yendez.

Yendez's only response, to date, to Butler's questions has been to refer Butler to another chapter of Springfield's City code. Butler was directed to Chapter 70.

Chapter 70 of the code, however, deals with licenses, permits and miscellaneous business regulations, the chapter does not mention farm/garden produce at all. Therefore, Chapter 98 would seem to be intended toward such "licensed business enterprises" discussed in Chapter 70 of the code but, what Chapter 70 does not do is remove, address or nullify the exemption from the prohibitions in Chapter 98 as they relate to the placement and display of fruits or vegetables in front of the premises where those fruits and vegetables are sold.

Section 98-5 allows the City Manager to permit licensed business enterprises to hold two sales per year, consisting of not more than two consecutive days, and with a spacing not less than two weeks apart.

Section 98-5 of the code says that during permitted sales periods, "it shall be lawful for licensed business enterprises to display and sell merchandise upon the public sidewalks," as long as: No more than half the width of the sidewalk is obstructed; no merchandise is left on the sidewalk overnight and; so long as the merchandise is not displayed anywhere other than in front of the merchant's own premises but, remember, the placement or display of fruits and vegetables in front of the premises where sold is exempt from requiring such permission, implying it is lawful to place or display fruits and vegetables in front of the premises where sold at any time, under specific guidelines outlined in the code.

To keep things in context, Missouri State Statute Section 150.030 provides that any farmer in the state who grows or processes any farm produce or products on his farm is authorized and permitted to "vend, retail or wholesale said products, free from license, fee or taxation from any county or municipality, in any quantity,...and by doing so shall not be considered a merchant." It seems to imply the farmer is allowed to sell on-site, because it mentions that all those authorized and permitted actions are applicable so long as he doesn't market his farm produce or products at some other off-site location. (By way of disclosure: I'm not a lawyer.)

Further, the Missouri Court has, in past cases, defined farms and farming as encompassing any size; any shape; any boundaries; and comprising anywhere from less than a lot to several lots or parts of lots. And, the court has further identified a farm as, "land cultivated-used in some way for the purposes of production by the owner thereof, . . ." (for more definitions of farms and farming, see: "JackeHammer: Missouri House of Representatives Addresses Springfield Urban Garden Questions").

One could easily conclude an urban garden is a "farm" within the boundaries of a city under the definitions provided by the Missouri court in past cases, and therefore: Since the state of Missouri prohibits any municipality from requiring licensing, fees or taxation on farmers, and; since the State court has further identified farms as being anywhere from less than a lot to encompassing several lots, and; since Section 98-5 of the Springfield Municipal code exempts the placement and display of fruits and vegetables from being limited to two sales periods of no more than two consecutive days at least two weeks apart, it seems there is a clear implication that the State of Missouri and the City of Springfield (through City Code 98-5) intended that farmers (or gardeners) should be unencumbered from licenses, fees and taxation and allowed to place and display fruits or vegetables for sale in "any public way," in front of the premises where they are to be sold any time of the year and for any period they wished, allowing they follow specific, Chapter 98 outlined, directions for doing so.

That, my friends, would appear to make urban gardening for retail in a residential zoned district in Springfield, Missouri an already permitted use.

At the last meeting of the Urban Garden Task Force, member Galen Chadwick suggested the task force should recommend to the Planning and Zoning Commission that it, in turn, recommend the City Council appoint a "Citizen's Food Council" to oversee the urban garden issue within the City.

Chadwick has long felt Springfield has an opportunity to become a model city in how it deals with the issue of urban gardens.

"This is a golden opportunity for the City of Springfield to lead the state because, the whole state is currently grappling with these questions," Chadwick said.

Chadwick views the new "code revelation" as an opportunity for the task force to bow out of this ongoing debate about whether farms within residential zoned areas of the city should be allowed to sell produce from their homes, front porches, yards and, now, perhaps even from "any public way."

"This is the graceful way out for the task force," Chadwick said. "They should hand off a recommendation to the City Council to appoint a Citizen's Food Council as if their hair's on fire and they're running toward the deep end of a pool."

Assistant City attorney Nancy Yendez addressed the bearing Missouri state statutes might have on city policy at the task force meeting on August 18. She did not mention Section 98-5 of Springfield's municipal code in the course of that meeting.

Yendez has indicated she is currently out of the office and will be available to answer questions on Monday, September 14.

Related (well, sorta): "Task force defines its terms for gardening Springfield News-Leader"



Aubree Taylor said...

Much applause coming from the 1000 Gardens lady! Sign me up for the Citizen's Food Council!

shak el said...

The City Code allows chickens but the Zoning Laws don't. There are lots of folk who have chickens now because they read just the city laws (and Springfield is listed in chicken books as a chicken friendly town).