For more information on how to make sure your adopted lot doesn’t end up on the Vacants to Value list of properties for sale, check out this workshop led by Baltimore Green Space, called Land Security for Community Open Spaces.

http://596acres.org/en/resources/land-access-advocates-nationwide/

Beside Community Law Center’s Urban Agriculture Law Project in Baltimore, of course, which other groups should be added to this list? Are there groups working on land access where you live that haven’t gotten enough coverage or credit?

The article states that:

“[a]nother aspect of the code is creating opportunities for community gardens, which would make places like Real Food Farm in Clifton Park … a permitted zone for urban agriculture.”

First, the proposed code calls these areas “community managed open space,” not community gardens, like the article says. Community managed open space is a more inclusive term that can refer to any space maintained by more than one household and that is used for either cultivation of edible crops or for active or passive recreation. A place like the Pigtown Horseshoe Pit qualifies as community managed open space but isn’t a community garden, since it’s used exclusively for recreation.

Second, community managed open space (which is a category into which community gardens would fall) and urban agriculture are distinct categories with very different consequences under the zoning code. CMOS is a permitted use in almost every zone of the city. On the other hand, urban agriculture is a conditional use, which is more heavily regulated by the city. The only place where urban agriculture is a “permitted use” as the article suggests is in some light industrial zones in Baltimore.

If you look up Real Food Farm (block lot 4199 009) on the Rewrite Baltimore map, you’ll see that the farm, which is directly adjacent to the school, will fall into an R-6 residential zone under the new plan. Under the proposed plan, urban agriculture would be a conditional use for RFF, and community managed open space would be a permitted use (no conditional use permit application required).

When thinking through the implications of new statutes and regulations, like the zoning code, it’s important to use terms precisely and to think through the implications of the use of those terms, because they have real-world consequences.

Adopted Lot v. Community Managed Open Space: There are two overlapping categories of lots in the Adopt-A-Lot program: adopted lots and community managed open spaces (CMOS).

Community-managed open space (CMOS): The community-managed open space designation removes the lot from the city’s active list of properties for sale.

If you contact the city about your project and request to have your lot categorized as CMOS, a city employee will come out to your garden and look at what you have accomplished. If, in the opinion of the employee, your project shows community involvement and investment, the city will move your adopted lot to the CMOS category; if not, your lot will remain in the adopted lot category and it may be listed for sale.

Adopted lots: If a lot does not qualify to be categorized as CMOS, Baltimore City considers the adopted lot to be in an interim use (i.e., a use that’s appropriate for the short term before the city has found a buyer). The city may place the adopted lot on the list of properties for sale. If the city receives an application to purchase the property, the city will notify the lot adopter, and she will have two weeks to submit a competing bid, if she wishes to purchase it.

Please keep in mind that the city, as the owner of the land, retains the authority to sell ANY of the lots adopted through the Power in Dirt program at any time, whether categorized as CMOS or not.

Check out our updated handout here.

The event was co-sponsored by:

• the East Bay Community Law Center (EBCLC),
• Green Collar Communities Clinic (GC3),
• Sustainable Economies Law Center (SELC),
• People’s Grocery,
• Oakland Office of Parks and Recreation,
• and the Students for Economic and Environmental Justice at Berkeley Law School.

In order to create an NMP, a farmer must take a six-week Farmer Training and Certification course. Farms can also hire certified NMP preparers to create their plans for them; for larger operations, this may be a good time-saving solution, but a finished NMP can cost several thousand dollars, which could be prohibitive for small farms. NMPs must be updated every three years.

The NMP includes:

• a soil test,
• yield goals,
• manure and biosolids analysis, and
• nitrogen estimates.

Based on these inputs, the plan generates field-by-field recommendations and limits for how much fertilizer to apply, depending on the crop.

NMPs are designed to be used in large commodity farms, which heavily use manure and other soil amendments. According to the preparer of the Real Food Farm NMP, the “recommended” dose of fertilizer was many times more than RFF would ever use and was also an amount of fertilizer that they couldn’t afford to purchase, even if they wanted to apply it.

Even small urban farms that have been in existence for more than a few years will likely meet the very low revenue threshold for the NMP requirement. The state has placed a significant burden on these small producers, and the burden yields almost no corresponding benefit to the Chesapeake Bay, since state-recommended fertilizer levels are so high.

If you have questions about your Maryland farm’s NMP, contact the Agricultural Nutrient Management Program at the University of Maryland Extension.

You can find the current version of Baltimore City’s proposed zoning code at: http://legistar.baltimorecitycouncil.com/attachments/9707.pdf

In the proposed code, urban agriculture as a land use requires a conditional use permit in every zone of Baltimore City except industrial zones.

In the definitions section at the beginning of the code, the city defines “urban agriculture” as the “cultivation, processing and marketing of food with a primary emphasis on operating as a business enterprise for income generation.” (Section 1-314(J).)

By contrast, the city has created another category of land use called “community-managed open space,” defined as “open-space area that: (1) is maintained by more than 1 household; and (2) is used either: (I) for the cultivation of fruits, flowers, vegetables, or ornamental plants; or (II) as a community gathering space for passive or active recreation.” (Section 1-304(H).)

Community-managed open space (CMOS), in contrast to urban agriculture, is a permitted use in every zone in the city. This means that a farmer or gardener whose activity qualifies as CMOS does not have to ask for permission from the city before carrying on his/her activities on the property.

How burdensome is the conditional use permit process?

In order to receive a conditional use permit, an applicant must:

• Receive written permission from the landowner to apply for the permit (if she is not the owner of the land).
• Fill out an application, including the submission of a conditional use permit fee (currently $250) and a to-scale, dimensioned site plan.
• Schedule a hearing in front of the Zoning Board.
• Post a large sign on the property advertising the time, place, and purpose of the zoning board hearing.
• Attend the daytime hearing and justify to the Zoning Board that her use of the property is appropriate for that area.

The Zoning Board, after examining the application and listening to the applicant’s in-person testimony, will decide whether or not she will be able to use the property for the intended use, taking into account many relevant factors, including (among many):

• The nature of the site versus the nature of the surrounding area.
• Impact on traffic patterns.
• Accessibility of light and air, emergency vehicles.
• Proximity of dwellings and places of public gathering.

The burdens of the conditional use permit process may depend on the scale of the project; if the garden or farm is a part-time activity and the gardener or farmer works full-time at a job with regular office hours, presence at a mid-day Zoning Board hearing may be difficult. The $250 fee and application may also present a significant barrier for some projects; at least at the beginning, urban agriculture brings in relatively little revenue in proportion to the long hours required.

Therefore, if possible, it would benefit urban farmers and gardeners to qualify as community-managed open space, if possible. The definition of CMOS in the Zoning Code as it currently stands is so broad that many gardens and farms would qualify, provided that more than one household maintains the site.

Questions? Contact Becky Witt at beckyw AT communitylaw DOT org.

Applications would include:

• paying a $250 fee.
• scheduling a hearing in front of the zoning board.
• posting a notice on the property with the time and date of the hearing.
• bringing neighbors to testify at the hearing and respond to opponents, if necessary,
• and prove that the proposed use of the land for urban agriculture is consistent with the zoning code. Justice for the gardens, p1.

Another councilwoman on the board, in support of the amendment, stated that “you just can’t go into a neighborhood and have your way without discussing it with the neighbors,” and that, in some cases, “outside people . . . set up community gardens without consulting” the residents of the surrounding community. Id. at p2.

Community garden proponents, however, argued that this special exception regulation would pose an unreasonable restriction on gardeners. City bureaucracy can be very difficult to navigate, and many city residents who would otherwise devote time and energy to a beautification project will be scared away by the hearings and other onerous requirements, they argue. Of the 350+ gardens and farms in Philadelphia, more than 200 of them are in mixed-use commercial zones under the proposed code.

The Public Interest Law Center of Philadelphia’s Garden Justice Legal Initiative organized 29 other groups and many individuals to mobilize against the bill. In response, City Councilman O’Neill released a statement saying that he would withdraw his “special exception” legislation. Councilman backs off on community garden zoning amendment.

Do you have a question about how local land use law affects your neighborhood project? Contact Community Law Center!

Baltimore is also rewriting its zoning code: check out the proposed new code at rewritebaltimore.org.

First, your group must incorporate in your state. Second, your group must apply to receive recognition of 501(c)(3) tax exemption from the federal Internal Revenue Service (IRS).

This process can take a long time and cost a lot of money. The Form 1023 and its required attachments are long and complex; once you’ve submitted your complete application, some organizations have waited up to a year to hear back from the IRS. The IRS charges a $400 Form 1023 application fee for small organizations.

Are there any other options?

In a fiscal sponsorship relationship, a nonprofit group that does not have 501(c)(3) status (nonexempt group) finds a similarly-minded 501(c)(3) nonprofit organization that is willing to be a sponsor. The sponsoring organization charges an administrative fee in exchange for agreeing to accept donations on the nonexempt group’s behalf. In this way, the nonexempt group can apply for grants through their sponsor that would normally only be open to exempt organizations.

Sounds great, right? Here are a few issues to consider as you think about forming a fiscal sponsorship.

1. Does my group qualify, as a nonexempt organization, to enter into a fiscal sponsorship?

If you are the nonexempt group: by forming a fiscal sponsorship, you are essentially saying to the IRS: “if our currently-nonexempt group went through the 501(c)(3) application process, we would qualify for tax exemption, too.” You can’t form a legal fiscal sponsorship relationship between a sponsoring 501(c)(3) nonprofit and a for-profit business. If you do so, you’re endangering the tax exempt status of the sponsoring organization.

2. What terms should the fiscal sponsorship document include?

Both groups should come up with a written document, signed by representatives from both organizations, that lays out all of the terms of the fiscal sponsorship agreement. Please consult legal advice when you set up this relationship! Ideally, each side of the agreement (both the nonexempt and the sponsoring organization) would be represented by legal counsel.

3. Is this an improper conduit relationship?

The fiscal sponsorship is not allowed to be merely a “conduit” through which funds are automatically passed through to the nonexempt organization.

“In order to be deductible, the IRS requires that the … sponsor have complete discretion and control over the funds and holds [the sponsor] legally responsible to see that its payments to [the nonexempt organization] are made to further [the sponsor's] tax exempt purposes.” Fiscal Sponsorship — Doing it Right!, p4.

To illustrate this crucial point, I’ll use an example.

Let’s say a group of neighbors starts a garden project called the Sunny Valley Garden. The group incorporates as a nonprofit corporation in their state, and they start running educational gardening programs for their community. After a growing season, the group decides that they want to hire a staff member, but they don’t have the resources to do all the administrative tasks that come with hiring an employee. They also can’t afford to hire the staff person until they get a grant to cover the costs of paying the employee. Luckily, there’s a foundation that offers a grant that will cover the employee costs; however, the grant is only available to 501(c)(3) tax exempt nonprofit groups.

Sunny Valley Garden contacts its local community association, Bright Futures Community Association, Inc. (BFCA) about a fiscal sponsorship relationship. BFCA is incorporated and has already received recognition of 501(c)(3) tax exemption. BFCA sees the great nonprofit educational work that the Garden is doing and agrees to be the Garden’s fiscal sponsor. As part of that agreement, BFCA agrees to let the Garden use some office space and agrees to take care of the payroll and other issues for the employee. BFCA would also receive any grant funds that the Garden applied for and then disburse those funds to the Garden. For all of these great benefits, BFCA will take a small percentage of any grant funds the Garden receives in order to cover BFCA’s administrative costs.

Any issues? No, provided that BFCA retains complete control over where the Garden’s money is being spent. Remember, BFCA is responsible to the IRS, as the fiscal sponsor, for any choices that the Garden makes.

Would you like assistance in drafting a fiscal sponsorship agreement? If your organization is in Maryland, Community Law Center can help! www.communitylaw.org 

But what can residents do about privately-owned lots that are covered with weeds, trash, or worse?

Self-help nuisance abatement is a procedure by which a neighbor may enter such a privately-owned space and clean it up. To read more, see this previous post: http://urbanagriculturelawproject.org/?p=285

Can neighbors do anything else on the lot besides clean it? Maryland law isn’t altogether clear on this issue.

The community may choose to make improvements to the property, such as creating garden beds or adding a fence or benches, ONLY IF:

1. They informed the property owner in their detailed letter regarding the nuisance that they were planning to make those improvements, and

2. The community understands that the owner may return to his property at any time and remove the improvements without notice or compensation.

Self-help nuisance abatement does not give the community permanent legal access to the property. The owner of the property could come back at any time and rightfully demand use of the property.

Any questions about the self-help nuisance abatement process?

See this self-help nuisance abatement handout on the procedure that your community should follow, or contact CLC for more information.