Real Estate

Growing Your Own Food? Keep It Legal

By Will Van Vactor, J.D.
Could your property create a nuisance that neighbors complain about, or otherwise come under scrutiny for legal violations?

Do you have a home garden or are you thinking about starting one? Do you have chickens, or maybe even goats? For many reasons, a lot of people are doing more and more home gardening and backyard farming. Believe it or not, though, your backyard farm may be subject to zoning laws and regulations.

The Benefits of Home Grown and Home Raised Food

Why are more people growing their own fruits and vegetables or raising their own chickens for eggs or for chicken-and-rice dinners? Everyone is different, but there are probably four main reasons:

  • Home economics: More people want and need to save more money, and spending less at the grocery store is a good way to conserve.
  • Health concerns: Homegrown foods typically do not have steroids, herbicides, insecticides, fertilizers, and generally not genetically modified. And some people live far from a grocery store that provides healthy and affordable food.
  • Flavorful food: Many find that vegetables grown in natural sunlight and rainwater, and eggs from chickens that eat natural feed, taste better than the same items sold at the local market.
  • Family activity: Home gardening and farming offers a way to spend quality time with family members and teach children lessons about responsibility and the environment.

Legal Issues When Growing or Raising Food at Home

Regardless of the reason, and regardless of the size of your backyard activities, there are several legal issues you need to keep in mind when home gardening and farming:

Local zoning laws and ordinances. Many cities and towns have restrictions on which farm animals you may keep on your residential property and how many you may keep. For example, you may be allowed to have only three chickens or three rabbits, or a combination of three small animals, but in no case more than three. In many communities, larger farm animals, like sheep and goats, are prohibited. However, in some areas they may be legal, so long as you do not slaughter them or sell milk on your property.

Even if there is not a zoning ordinance that prohibits your use, be aware that your town likely has a nuisance ordinance. It may not specifically spell out farm-related uses as a nuisance, but if something gets too loud or too stinky, it can meet the definition of a nuisance, and a complaining neighbor could bring on an enforcement action.

Generally, zoning and nuisance laws are meant to protect your neighbors from noise and odors from your yard. In light of the growing local farm movement, some cities have, or are, adopting urban farm ordinances to make certain backyard farming activities legal that historically have been unlawful.

Development standards and building codes. In most every jurisdiction, you will find that there is a building code. In short, building codes are designed to make sure new construction is safe. In some areas, you may need a building coop for structures you build on your backyard farm, like a chicken coop or greenhouse. And in some areas, a building permit may be required only when a structure is a certain size.

Development standards may also apply. These standards may require that any structure be located a certain distance from a property line (called a “setback”) or that your property be a certain minimum size.

Be sure to check the local building and planning regulations before you start building. If you break these laws and ordinances, you may face a fine and be ordered to remove whatever it is that is breaking the law.

Private property restrictions? If you live in a subdivision, there may be Covenants, Conditions, and Restrictions (CC&Rs) that apply to your property. The CC&Rs may prohibit animals and even gardens. Breaking these rules usually means paying a fine to the HOA. Review the CC&Rs carefully. Typically, you will be fine if you use pots and containers to grow your vegetables.

"Attractive nuisance." If a child trespasses on your land and is injured by something that attracted him or her to your property, you may be held liable. A good example is a swimming pool. If a child falls in and drowns, even if trespassing, you can be liable. The same may be true if a child is attracted to a small irrigation pond or is hurt by a farm animal. Be sure to take adequate steps to protect any potential trespassers from harm in your backyard farm.

Permits and licenses? Check local laws to see whether you need a license or permit for the types of animals you plan to keep and what types of veterinary records you need. Also, check to see whether you need a permit or license to sell your home-grown products. Again, not having the proper permits and licenses may mean more fines.

Other Considerations When Planning a Backyard Farm

You will also want to make sure your backyard farm is healthful. Recent data show that many urban gardens have high levels of lead and other toxic chemicals. These contaminates may be left over from prior industrial activity or may even arrive in your backyard as airborne particles, or contaminated rain or dust.

If you are unsure whether your property is contaminated, ask your neighbors, local gardening clubs, or even have your property tested. Before you eat your own produce or sell it a farmer’s market, make sure it is safe to consume.

Saving money and keeping a healthy diet are great goals. Home gardening and farming certainly can help you do both. If you are not careful and do not follow the rules, though, it may cost you more money and create headaches in the end. Contact an attorney if you have questions or concerns about whether your backyard farm is legal.

Questions for Your Attorney

  • Do I need a permit or license to sell my homegrown produce?
  • Do I need a building permit for my chicken coop? What about a greenhouse?
  • Is my particular garden setup likely to constitute an attractive nuisance?

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