DRAFTING DEFINITIONS

Drafting Definitions In Local Healthy Food Access Policies

There are several reasons why local governments should consider including definitions with new laws or ordinances and think carefully about what terms to define. This guide describes what types of terms should be defined and the common practices for creating good definitions in local laws.

Key Takeaways:

  1. Ensure all key terms are defined and define only the most necessary terms, for readability and effectiveness
  2. Identify sample or model policies
  3. Be aware of other definitions that already exist in the local code, or relevant state and federal law
  4. Review draft policy with legal counsel or legal technical assistance provider
  5. Identify key stakeholders and involve them as appropriate; Review draft definitions with stakeholders

Why Use Definitions?

Local governments define terms to identify norms that create a model for future relevant legislation. Laws create a model for behaviors, individuals, and actions but definitions become the building blocks of these models because the laws are effective to the extent that the definitions are satisfied.

Definitions are useful tools for governments to make legislation more effective, efficient, and clear. They are important for closing loopholes within legislation by making clear what falls outside of the scope of a law. Clear definitions also make it less likely a term meaning will be challenged in court.

Definitions ease the legislative drafting process by promoting readability and efficiency. By defining key terms, it reduces the need to explain those terms in the substantive parts of the law.

Definitions also serve to build trust between governments and communities because they increase certainty and predictability for those affected by a law. Definitions clarify the current application of legislation, which supports implementation and enforcement.

Definitions in Action: PRINCE GEORGE’S COUNTY

In 2015, Prince George’s County, Maryland passed an urban agriculture tax credit law that allows a property tax credit for urban land used for agricultural purposes. However, at the time, the definition of urban farming was limited to non-profit farming ventures. The County’s Food Equity Council (FEC) started advocating for expanding the definition of urban farming to include for profit operations, as well as allowing urban farming in more zones.

In 2016, the County Council passed a bill that expanded the definition of urban farming that (1) includes for-profit ventures that cultivate flowers, fruits, or vegetables, and/or engage in beekeeping, agricultural education activities or composting; and (2) allows urban farming in rural, open space and additional residential zones, as long as the urban farm is five acres or smaller.

It may sometimes be necessary for cities, towns, or counties to also amend the definitions of a healthy food policy, if those definitions turn out to conflict with the needs of the municipality. The new definition in Prince George’s County allows urban growers to generate income and allows for the growth of urban agriculture across the County. For more information, visit the HFPP Case Study on Prince George’s County.

Recommended Practices

People of a wide range of literacy levels should be able to understand the law. Make sure to think about whether the term has a specialized or ordinary meaning in the context.

Definitions should be similar to the ordinary meaning of a word, and clarify the scope of a meaning when necessary.

Example: In Boston, the term “freight container” is defined in the context of Urban Agriculture: “A standardized reusable steel box previously used for the storage and movement of materials and products within an intermodal freight transport system and repurposed for a Controlled Environment Agriculture (CEA) use, such as Hydroponics and/or Aquaponics.” (Boston, MA Article 89)

Definitions also serve to build trust between governments and communities because they increase certainty and predictability for those affected by a law. Definitions clarify the current application of legislation, which supports implementation and enforcement.

In drafting definitions, the word “means” can be used to narrow a definition. On the other hand, “includes” can broaden it. “Means” implies that only what is expressly included in the definition is covered under the law. “Includes” implies that any terms provided in the definition represent some but not all of what could be included under the definition.

Example: “‘Supermarket’ means a food product and marketing establishment that sells a variety of food and is greater than 20,000 square feet.” (San Francisco, Cal., Health Code Article 8, Section 440 (2018). This definition narrows what qualifies as a “supermarket.”

New or emerging concepts should be encompassed within definitions without leaving the definition too broad.

Example: The City of Lawrence, KS defines “urban agriculture” as “The growing, processing and distribution of plant and animal products — by and for the local community — within an urban environment. Urban Agriculture includes, but is not limited to: aquaculture, horticulture, permaculture, hydroculture, agroforestry, beekeeping, gardening, and animal husbandry.” Code of the City of Lawrence, Kansas — Ch. 20 (2006).

DEFINITION TEMPLATE

      SEC. 2 DEFINITIONS
      In this Act:
      [Term] — The term "_____" means ________.
      [Term] — The term "_____" includes ____________.
      [Term] — The term "______" as defined in section ___ of ____ [Act].
          

Common Mistakes

  • Failing to define a term. Defining a term should clarify the context in which the term is being used. If a term is not defined, it could create ambiguity in the law, increase the chances for unintended outcomes, and—worst case—increase the possibility of a legal challenge.
  • Failing to use a defined term in the legislative text. This entails defining a term and then not using it again in the legislative text.
  • Burying a definition within a substantive provision. As much as possible, definitions should be housed in the definitions section of a law, where they are easiest to find. Burying definitions within substantive provisions could make the law less transparent and harder to understand. In Atlanta’s urban agriculture ordinance, the definitions for urban gardens and market gardens are included in the same paragraph as information on the zoning districts where they are allowed. This decreases readability and buries the definition.
  • Burying a substantive provision within a definition. Sometimes drafters include the application of the term along with its meaning, which can complicate the application of the term later in the law. It also presents the danger that the term will not be used at all in the substantive text.
  • Defining a plainly understood word. There is no need to define a word when it does not hold a particular meaning under the act, if it is only susceptible to one meaning. In this instance, the plain, dictionary meaning would be applied.

Definitions in Action: PORTLAND

Prior to 2012, Portland, Oregon only allowed small-scale market gardens to operate in a few zones and were not allowed to sell produce in either residential or commercial zones. The code was unclear on whether gardeners could sell their produce, although gardeners were allowed to keep produce for personal use. Furthermore, the code did not define Farmers’ Markets, which meant that they had to apply for expensive land use reviews to operate.

In 2012, Portland revised the zoning code to include an expanded definition of “market garden,” which allowed them to operate in all zones and expressly allowed the sale of produce. The zoning code also included a definition for Farmers’ Market, which means that all farmers’ markets are now regulated consistently and the regulations, including location and frequency, are clearly outlined.

Unclear or absent definitions can hinder the expansion of urban agriculture and farmers’ markets, which can thwart a community’s ability to reach its food access goals.

Types of Terms that are Commonly Defined

  • Terms that could have many meanings. Example: Terms like “livestock” or “local” are words that may have different meanings in different contexts.
  • Terms that need to be defined to make sense to a reader. Example: Washington, D.C. defines “eligible area” and “first source agreement” in D.C. Law 18.353. These terms hold no ordinary meaning outside of the meaning given by the Act.
  • Terms associated with well-established and either ordinary or discipline-specific meaning.
    • Common words and phrases. Example: The City of Atlanta defines the word “producer” twice as it relates to both farmers’ markets and filming.
    • Descriptive phrases. Example: The term “in-vessel” is defined in a Chicago composting ordinance. “In-vessel” describes how the composting is occurring and defining the term clarifies its application.
    • Terms of art and technical terms. Example: “Nucleus colony” or “apiary” may be important technical terms to define in a law on beekeeping.

Definitions in Action: OAKLAND

Before Oakland, California amended its code in 2014, the definition of “community garden” did not include the sale of crops, plant products, or animal products. If community gardens did sell these items, they would no longer be considered a community garden and would require a Conditional Use Permit.

This type of restrictive definition limits economic opportunities for community gardeners.

In 2014, the law was amended to include limited seasonal sales of produce. It also divided agriculture into two categories: “‘Limited Agriculture’ and ‘Extensive Agriculture.'” Limited Agriculture is allowed in all residential and most commercial zones and allows for the growing and selling of crops. “Extensive Agriculture” allows animal husbandry, keeping more than 3 beehives, and the use of heavy, mechanized farm equipment but requires a Conditional Use Permit. These new definitions expand options and opportunities for urban growers.

Existing Resources for Local Governments

There are a number of organizations that provide guidance for those interested in drafting healthy food policies: For a list, click here.

List of Terms

Healthy Food Policy Project has created a spreadsheet of some terms that occur commonly in healthy food policies around the country. To see the similarity or differences of those definitions to those your locality might be using, click here.

Notes

Arthur J. Rynearson, Legislative Drafting Step-by-Step, International Law Institute & Carolina Academic Press, 2013.
Drafting Effective Policies, Public Health Law Center (2014), http://www.publichealthlawcenter.org/sites/default/files/resources/Drafting%20Effective%20Policies.pdf.

Jan Zurcher, Basic Rules of Legislative Drafting, 7 Man. L.J. 131 (1977)

Jeanne Frazier Price, Wagging, Not Barking: Statutory Definitions, 60 Clev. St. L. Rev. 999 (2013).

Reed Dickerson, Legislative Drafting, Greenwood Press Publishers, 1954.

Local Code Sources (Fort Worth, Philadelphia, Denver, Portland)

Urban Food Zoning Code Update: Enhancing Portlanders’ Connection to Their Food and Community (2012) — https://www.portlandoregon.gov/bps/article/402598

City of Oakland, Sep. 5, 2014; Urban Agriculture Citywide Update, City of Oakland, http://www2.oaklandnet.com/government/o/PBN/OurOrganization/PlanningZoning/OAK029859.

Good Laws, Good Food — https://www.chlpi.org/wp-content/uploads/2013/12/good-food-good-laws_toolkit-10.23.2017.pdf

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