Ghost Town Farm: A Zoning Law Case Study.

We last left Novella with a license to garden in the vacant lot next door to her apartment. Over the next few years, however, ownership of the lot changed hands several times. Each time the lot passed from one person to another, Novella’s license was extinguished. But each time, Novella asked for and received permission (aka, a new license) to keep gardening while the new owner ironed out his/her plans for the property.

None of these owners actually did anything productive with the lot.

Finally, the last of the owners offered to sell the lot to Novella. She accepted.

At long last, Novella owned the property outright. She no longer had to worry about being kicked off the property as a trespasser or having her license revoked.

As a new landowner, however, she was now responsible for her property’s compliance with zoning law.

Local governments (counties, cities, and towns) use zoning law to lay out permitted uses of land, slicing up their jurisdiction into different areas: industrial, commercial, residential, etc. For each zone, there is a list of permitted uses (which you can do without asking anyone first) and conditional uses (which you need a permit to do).

So Novella’s lot is in Zone RM-2.

RM-2 Mixed Housing Type Residential Zone – 2. The intent of the RM-2 zone is to create, maintain, and enhance residential areas characterized by a mix of single family homes, duplexes, townhouses, small multi-unit buildings, and neighborhood businesses where appropriate.

Oakland Zoning Code § 17.17.010(A)(2), p99

Further on in the Code, Table 17.17.01 lays out the permitted and conditional uses for zone RM-2. Crop and animal raising agricultural activities are listed as conditional uses for RM-2, and are defined as follows:

Crop and Animal Raising Agricultural Activities include the raising of tree, vine, field, forage, and other plant crops, intended to provide food or fibers, as well as keeping, grazing, or feeding of animals for animal products, animal increase, or value increase.

Oakland Zoning Code § 17.10.610, p57

Because crop and animal raising are conditional uses in her zone, Novella must apply for a conditional use permit before she can raise those crops and animals.

The basic requirements for applying for a conditional use permit are:

A. That the location, size, design, and operating characteristics of the proposed development will be compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood, with consideration to be given to harmony in scale, bulk, coverage, and density; to the availability of civic facilities and utilities; to harmful effect, if any, upon desirable neighborhood character; to the generation of traffic and the capacity of surrounding streets; …

B. That the location, design, and site planning of the proposed development will provide a convenient and functional living, working, shopping, or civic environment, and will be as attractive as the nature of the use and its location and setting warrant;

C. That the proposed development will enhance the successful operation of the surrounding area in its basic community functions, or will provide an essential service to the community or region;

D. That the proposal conforms to all applicable regular design review criteria set forth in the regular design review procedure at Section 17.136.050;

E. That the proposal conforms in all significant respects with the Oakland General Plan and with any other applicable guidelines or criteria, district plan or development control map which has been adopted by the Planning Commission or City Council.

Oakland Zoning Code, §17.134.050, p479

For crop and animal raising, there are three additional criteria to obtain a conditional use permit:

1. The proposal will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood in terms of noise, water and pesticide runoff, farming equipment operation, hours of operation, odor, security, and vehicular traffic;

2. Agricultural chemicals or pesticides will not impact abutting properties or the surrounding neighborhood; and

3. The soil used in growing does not contain any harmful contaminants and the activity will not create contaminated soil.

Oakland Zoning Code, p103

The real problem with Novella’s lot, though the zoning code doesn’t make this very clear, is that Novella has been selling fruit, vegetables and meat on the lot. “[T]he likelihood that a yard garden could be challenged under a zoning ordinance depends on whether the garden starts to affect the residential feel of the neighborhood.” (Janelle Orsi, Not In My Backyard, p13)

Gardening is generally accepted to be a natural part of living on and enjoying your land. However, when the “garden” starts to look more like a money-making operation, or if it begins to bring noticeably increased vehicular or pedestrian traffic to a residential neighborhood, cities like to be able to monitor that change through conditional use permits.

So it’s not a matter of having to get a “conditional use permit for growing chard.” It’s about allowing, yet setting boundaries on commercial activity within a residential zone in the city. It may seem ridiculous in such a blighted neighborhood to focus on illicit rabbit meat sales, but zoning is not an entirely irrational system.

So Novella scraped up the money to get her conditional use permit (and to pay her fine for not having a conditional use permit already), with a lot of help from her blog readers through Paypal.

And now Ghost Town Farm is legally legitimate.

Posted on by Kristine Dunkerton

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