Local Laws and Policies that Support Growing Food

Rental Housing

Few local governments have laws that specifically promote or regulate gardening for renters. Some local governments explicitly allow contractual and property relationships to take priority over the right to grow food.⁴

Examples of local laws that specifically support growing food in rental housing include:

• exempting gardens from plant height restrictions allows tenants to grow a variety of food specific to their cultural preference
• requiring ground-level units in new multifamily housing developments to have dedicated private yards that may be used for gardening

Renters, rental housing communities, and landlords can also take affirmative steps to support growing food in rental housing. For example, renters may arrange an agreement with their landlord to grow food in a private garden or request community gardening space for their building. Residents of assisted living or nursing home facilities may also have opportunities to grow food where they live if their living community has a facility garden.⁵

Further, many public housing authorities recognize the value of gardens for residents to grow food. Here are a few examples of public housing initiatives creating space for residents to grow food where they live:

• In Seattle, Washington, many of the public housing buildings managed by the King County Housing Authority have facilitated residents growing food through container gardens, raised beds, indoor gardens, and individual plots in community gardens. Notably, a resident-built garden at Wayland Arms earned an Award of Merit from the National Association of Housing and Redevelopment Officials.
• In Denver, Colorado, the Denver Housing Authority partners with Denver Urban Gardens to establish community gardens for public housing residents. For example, the Tapiz Community Garden has been run by the residents of two public housing buildings since 2012.
• New York City Housing Authority’s “Garden and Greening Program” supports over 700 gardens and connects residents with technical assistance from GreenThumb, which provides free seeds and bulbs to resident gardeners, gardening instruction, and additional support. NYCHA’s long history of gardening competitions demonstrates the commitment of the housing authority to supporting tenant gardens over the past 50 years.

Manufactured Home Parks

Some local governments have taken steps to encourage or expressly require that manufactured home parks allow tenants to have gardens. For example, some localities:

• expressly recognize gardening as a permitted use in manufactured home parks
• imply gardening is a permitted use
• encourage edible gardens in manufactured home park developments
• require open space that may include community gardens

Manufactured home parks can also take affirmative steps to permit and even encourage residents to grow food within the park:

• Royal Palms Mobile Home Park in North Carolina expressly allows residents to grow vegetable gardens so long as the garden is a “reasonable” size.
• Mapleton Mobile Home Park in Boulder, Colorado is a mobile home park owned by a nonprofit and has a homeowner’s association. After advocacy by park residents, Mapleton’s rules and regulations now permit raising chickens, bees, and rabbits, and the park permits residents to maintain vegetable gardens, as well as a community garden.

Common Interest Communities

Local governments may or may not be able to override covenants, conditions, and restrictions in common interest communities that impact residents growing food where they live. Also, some local governments expressly permit contractual and property relationships to take priority over the right to grow food. For example, Laredo, Texas allows the creation and maintenance of home gardens but provides that “[n]othing herein shall be construed or interpreted to in any way waive, modify, vacate, or in any way affect any lease, deed restriction, covenant, condition, restriction or the regulations of any home owners association.”⁵

However, local laws regulating water use can incidentally remove barriers to growing food in common interest communities. For example, Denver, Colorado prohibits restrictive covenants that require turf grass, and North Las Vegas prohibits “private covenants, conditions, deed clauses” that prevent water efficient landscaping or require turf.⁶

Even without local government help, residents can petition their association boards to either support and develop private or community garden plots, or simply reduce restrictions on gardening. In addition to personal garden plots, residents can advocate for community gardening in undeveloped plots or drainage areas. For example, Mapleton, Utah allows community gardens on commonly held parcels, and Galesburg, Illinois allows a community garden as a conditional use for land in a development.⁷

To learn about considerations for developing community gardens, consult Public Health Law Center’s Community Gardening: Policy Reference Guide.

Local Land Use & Development Policies that Promote Growing Food Where You Live

Land use and development policies affect local economies and influence the physical environments of cities and counties. Planning departments play a primary role in determining where food is grown, typically through zoning ordinances. Zoning outlines where agricultural activities are permitted or prohibited in a community. Often, zoning ordinances are not very clear about what agricultural activities are permitted on non-agricultural land.

There are numerous options available to local governments to support their residents in growing food where they live through:

• urban agricultural ordinances that allow or support agricultural activities on local residential, commercial, or industrial properties
• agricultural overlay districts that include incentives or permissions to grow food
• planning commission requirements for subdivisions that regulate open spaces, agricultural activities, and aesthetic concerns
• tax incentives in municipal community development efforts
• tax incentives for property owners that engage in urban agriculture on certain vacant parcels
• Planned Unit Developments that expressly include agricultural activities

Planned Unit Developments can also combine multiple local development goals, such as prioritizing both food production and affordable housing. For example, the Troy Gardens development in Madison, Wisconsin allocated 66% of its housing units for low-to-moderate income residents and contains both an urban farm and 327-plot community garden.

For further reading on how community planning can support local access to healthy food, consult the Healthy Food Policy Project’s Planning Resource.

State Laws that Promote Growing Food Where You Live

Rental Housing

In 2014, California passed the California Neighborhood Food Act, which expanded the rights of some tenants to engage in personal agriculture. The Legislature’s findings specifically addressed the large number of Californians that do not own their residences and face obstacles to growing food where they live as a result. Recognizing the tenant’s right to quiet enjoyment of the premises, the California law requires landlords of one- to two-unit residential buildings to permit tenants to engage in personal agriculture in portable containers in their backyard.⁸

Common Interest Communities

The California Neighborhood Food Act also expanded the rights of homeowners to engage in personal agriculture in their backyard in response to the restrictions placed on growing food by many homeowner associations. The law supports residents’ personal agriculture activities by prohibiting unreasonably restrictive regulation in the association’s governing documents.⁹ However, the law exempts reasonable restrictions that would not “significantly increase the cost of engaging in personal agriculture or significantly decrease its efficiency.”¹⁰

Colorado state law has established that restrictive covenants, bylaws, and rules or regulations of common interest communities that require turf grass are contrary to public policy and unenforceable.¹¹ However, this law does not prohibit these communities from adopting “design or aesthetic guidelines or rules that require drought-tolerant vegetative landscapes or regulate the type, number, and placement of drought-tolerant plantings,” which could still result in negative impacts to residents seeking to grow food on their property.

Resisting Preemption

State preemption can impose harmful restrictions on local government laws that could encourage growing food and provide residents with protections from restrictive contracts and covenants. This can even happen when a law intends to advance the right to grow food or claims to ensure state law will ensure that residents receive special protections.

For example, a recent Florida law recognizes the need for local food access, encourages residents to grow food, and regulates the development of sustainable vegetables and fruit gardens, yet the law expressly preempts any local regulation of vegetable gardens.¹² Although this law attempts to secure a right to grow food, it prevents local governments from taking further action to protect this right. Under a preemptive law like this, local governments could still act indirectly to promote vegetable gardens by focusing regulation on restrictive covenants and contracts that require turf grass lawns and limiting water use for grass lawns. However, in this case, it is important to note that this is not Florida’s only preemptive law affecting local regulation in this area. Florida also preempts local regulation of manufactured home parks, including a mobile home park owner’s obligation to maintain the appearance of common areas.¹³

For further reading about preemption, consult the Healthy Food Policy Project’s Why Preemption Is Bad for Local Healthy Eating Policy Movements and Public Health Law Center’s preemption resources.

Conclusion

Residents of rental housing, manufactured home parks, and common interest communities deserve to grow food where they live. While many leases, property covenants, and association rules attempt to limit this right, local laws, development policies, and community-led initiatives demonstrate the many, varied opportunities to support growing food in these environments and the importance of homegrown food to nutrition, food security, and cultural connection.

Next: Common Questions in Rental Housing

Footnotes

⁴See, e.g., Laredo, Tex., Code § 13-84 (allowing the creation and maintenance of home gardens but provides that “[n]othing herein shall be construed or interpreted to in any way waive, modify, vacate, or in any way affect any lease, deed restriction, covenant, condition, restriction or the regulations of any home owners association.”).
⁵The Center for Medicare and Medicaid Services permits senior living facilities and nursing homes to prepare meals using food grown in their facility garden so long as it meets the applicable food safety guidelines. 42 CFR § 483.60(i)(1)(ii).
⁶Laredo, Tex., Code § 13-84.
⁷Denver, Colo., Code § 57-100; North Las Vegas, Nev., Code § 17.24.060(B)(7)(g).
⁸Mapleton, Utah, Code § 18.82D.100; Galesburg, Ill., Code § 152.069(C)(6).
⁹Cal. Civ. Code § 1940.10(b).
¹⁰Cal. Civ. Code § 4750(b) (“Any provision of a governing document, as defined in Section 4150, shall be void and unenforceable if it effectively prohibits or unreasonably restricts the use of a homeowner’s backyard for personal agriculture.”); Cal. Civ. Code § 4150 (“’Governing documents’ means the declaration and any other documents, such as bylaws, operating rules, articles of incorporation, or articles of association, which govern the operation of the common interest development or association.”).
¹¹Cal. Civ. Code § 4750(c)(1)-(2).
¹²Colo. Stat. § 37-60-126. The law also deems unenforceable any similar rules or covenants that prohibit or limit the installation or use of drought-tolerant vegetative landscapes.
¹³Fla. Stat. § 604.71.
¹⁴Fla. Stat. § 723.004 (largely preempting local regulation of mobile home park relationships); Fla. Stat. § 723.022 (regulating mobile home park owner obligations).