Guest post by Parke Troutman
Last week, San Diego Mayor Jerry Sanders signed an ordinance dramatically streamlining the city’s community garden regulations. This is an interesting story, with implications for trying to change local laws on urban agriculture elsewhere: even though there was --- to paraphrase Patrick O’Brian --- as much of a consensus as could be hoped for in this imperfect world, it took two and a half years to get the code changed and for much of the time there was considerable doubt whether anything would ever change. And it wasn’t a minor issue for community gardeners: the regulations had been so onerous as to constitute a de facto ban on new gardens.
It’s not like this everywhere. Some American cities, like New York and Cleveland, have longstanding community garden traditions, sometimes even going back into the nineteenth century. They have government programs that encourage or even run such gardens.
San Diego, however, had, until last week, fallen into another category.
As the popularity of local foods has surged over the last several years, many would-be gardeners across the country have discovered that local regulations sometimes throw up serious roadblocks, if not completely thwart, plans for little plots of tranquility and fresh vegetables. It’s rarely been intentional. The interfering rules were often written decades earlier, when community gardens weren’t on the radar. For instance, some cities have zoning codes that in effect say, “Only uses on this list are allowed to be constructed in this district” and then community gardens aren’t on that list.
Of the largest cities in the nation, San Diego --- the ninth most populous --- was unique in the extent of its problems. In 1997, the City overhauled its Land Development Code, a thick, byzantine manual spelling out what can be built, where and how. This revision to the zoning code created a new, separate category for community gardens.
But as a staff member working on the 1997 code described it in a hearing last year, what happened didn’t go quite according to plan. City staff initially didn’t intend on requiring any permit. But they received some public comment expressing concerns, so in the draft they took to the planning commission, they required what’s called a Neighborhood Use Permit for residential zones and banned the gardens from commercial zones. It wasn’t expected to be the final word. Staff hoped to get feedback from planning commissioners — on this and many other issues. The commissioners, however, apparently weren’t game for such fine-scale revision of the entire code. What was meant to be a rough draft became city law.
The Neighborhood Use Permits are required of a number of different uses, from sidewalk cafes to wireless facilities. The permit has numerous requirements, two of which played significantly in the community garden story. First is that an applicant must notify the local community planning group as well as all residents and property owners within 300 feet of the project.
The second notable requirement is the cost of the permit. The Development Services Department, which handles permits, is expected by city law to pay its own way and not tap into the municipal general fund. This means that everyone requesting a permit pays for the cost of processing it. Except for the simplest permits, applicants are charged between $82 and $144 an hour of staff time spent on their project, starting with an initial deposit (increased in 2009 to $5,000). The kicker is that an applicant doesn’t know until afterward, when sent a final bill from the City, how the permit cost. In theory, it could be less than the initial deposit. Or it could cost substantially more — an uncertainty that most people who just want to garden couldn’t stomach. (City staff incidentally have their own objections to these types of charges and are working to make a number of changes.) The revised Land Development Code went into effect in 2000, but for many years barely anyone even knew about the rules on community gardens.
Enter the Great Recession, the burgeoning food movement and several innovative staff members at a nonprofit devoted to assisting refugees resettle. The clients of the International Rescue Committee (the IRC) were disproportionately from rural backgrounds. In the US, they suffered from high unemployment, boredom and limited access to familiar foods. Many of them were also farmers --- and by virtue of never having had enough money to buy things like pesticides --- they were organic farmers. With hindsight the idea of creating a community garden as a stepping stone to establishing a full-blown farm seems self-evident.
What happened next became well known once the local media got a hold of it. The IRC worked with the City to get a lease on a 2.3-acre site near Chollas Creek, within walking distance of their office and close to many of their clients. In addition to the lease, they also had to get a permit, on which they spent $46,000. Some of the cost came from the nearness to the environmentally sensitive creek, which led to a higher level of review, but the experience froze plans for most other community gardens in the city. (We later found out that earlier, one other garden tried to get a permit after being cited by Code Compliance. $6,200 was paid to the City, and as far as we could tell, the City got as far as typing up the final paperwork but never filed it.)
The leaders at the IRC’s New Roots Community Farm, namely Amy Lint and Ellee Igoe, tried to convert the attention into momentum to change the zoning code to make it easier to start new community gardens. City Councilmembers like Jim Madaffer were sympathetic. Surprising to the people working on it, the effort fizzled. Part of the reason was that Development Services thought that they could simplify the process without going to the considerable trouble of changing the code, that tweaks to their internal rules would allow them to speed up the review process and make the permit cheaper. But, in truth, it’s hard to explain why the wind was out of the sails by early summer 2009.
At the same time, Lint and Igoe were also leading an effort to create what was originally meant to be a food policy council but instead morphed into a grassroots food advocacy group focused on eliminating regulatory obstacles to locally produced foods. This group, named the 1 in 10 Coalition for its goal to have one in ten people in San Diego get at least some of their food locally, took up the community garden issue. We thought that regulations could be changed quickly since there seemed to be a general consensus that it shouldn’t cost anywhere near so much to start a community garden. We estimated the code could be changed in six months; it took two years.
Our undue optimism had several causes. First, of course, was our naiveté. While a few of us, like myself and Ellee Igoe, had experience with land use, none of us had ever worked on changing a zoning code before, and we didn’t, for instance, we didn’t understand the step-by-step legislative process , and our expectations of elected officials didn’t mesh with their actual powers.
What we really didn’t appreciate then was how we were put in a position of artificial conflict with the local planning groups. Community planning groups, which are common in larger cities, are elected neighborhood committees. The members, who are disproportionately older homeowners and local business leaders, advise city council, particularly on development projects in their area.
The way the Land Development Code is structured, for all practical purposes, it’s impossible to eliminate the ‘per hour’ charge for staff time without also eliminating the requirement to consult the local planning group. Simply separating the two was repeatedly proposed, by both ourselves and the planning groups, as the easy solution. But for obscure reasons that would take a very long time to explain, it would have profoundly complicated to implement.
The way the issue was set up made the planning groups critical. If we were starting from scratch, it would be difficult to defend requiring a Neighborhood Use Permit for community gardens because it was so much more than what other major cities required and was disproportionate to the possible impacts of a community garden.
But the Neighborhood Use Permit was what was on the books. Getting rid of it would eliminate the input of the local planning group and this was perceived as taking away from the community planning groups, as cutting them out of the loop.
Furthermore, eliminating their input violated two of the central premises of the ideology of community planning. Bedrock to the planning groups is that they should review as much as possible before it happens. In their view, bad things happen when they don’t get to weigh in on issues. An example close to where I live: a developer began tearing down a gorgeous stone church on a Friday night --- their demolition permit didn’t require notifying the community planning group --- and they wrecked the building before anyone from the City could do anything about it. The development project fell through; a decade later the empty site is only used for Christmas tree sales.
The second principle of community planning groups that simplifying the community garden permit seemed to violate was the exclusion of strangers. In contrast to condo owners and apartment dwellers, single-family homeowners often believe their owning their property gives them a say not only in who access their property but in who accesses their neighborhood --- and in some neighborhoods, they have an acute sense of stranger danger. The vast majority of planning group members were and remain excited about community gardens and understand that community is a central part of community gardens, but for those who were unfamiliar with them, the gardens were an unknown, a Rorschach inkblot onto which they projected their fears of the strangers, be they gangs, halfway houses or terrorists. While such people were relatively few in number, the sensitivity of the planning groups to uncertainty magnified their power.
Community planning group members, we eventually came to appreciate, are in an awkward situation. On one hand, they are volunteers. They have lives; they have day jobs; they have families. A few of them are, say, retired planners and are quite savvy, but generally speaking, they’re not experts. On a certain level, that’s the whole point of these groups.
On the other hand, group members are expected to comment at every meeting on a vast array of technical issues, many of which professionals work on full time. The planning group members know that the devil is in the details — they’ve seen their neighborhoods shafted by the fine print — but they don’t have the resources to develop a deep knowledge of everything. As a result, they often have more questions than can be answered in the time they devote to any one issue at a meetings (often 15-20 minutes). They then become quick to conclude that it’s premature to act.
If actually pushed to the point of voting, however, all but a handful of planning group members would vote in support of eliminating the permit requirement for community gardens. So it wasn’t a sense of opposition that drove them but a sense of trying to be thorough in response to uncertainty. Of the eight planning groups we presented at, six voted, all in favor and four unanimously.
We discovered, however, that going out to the planning groups was a slow, grueling process. We were bombarded with questions and sometimes we had to go out to the same planning group repeatedly, with a variety of different delays: getting sent to a subcommittee, delayed a month because a meeting was devoted entirely to elections, etc.
At the beginning of 2011, however, our fortunes changed dramatically, thanks largely to a person who had been working mostly parallel to our efforts. Diane Moss, a widely respected community activist in Southeast San Diego and the executive director of the nonprofit Project New Village, became involved in food issues at the same meetings in 2008 that led to the creation of the 1 in 10 Coalition. One of her projects was to start a farmers’ market.
Another, however, was to start a community garden. She secured $50,000 from the office of Councilmember Tony Young. The Southeastern Development Corporation (SEDC) was to help secure a site for Project New Village. The best one they found was a piece of commercial property they owned. Since the zoning code allowed plant nurseries there, the SEDC planners assumed that a community garden, because it had fewer impacts, should likewise be acceptable. The City’s attorneys felt otherwise. The code listed community gardens as a specific use. One that wasn’t allowed in commercial zones.
This put city council in an unusual position. It was being asked to approve a lease for a community garden --- on property for which it was not allowed to be built. When this came to a head at a hearing of January this year, the seven city councilmembers who spoke — both Democrats and Republicans --- expressed emphatic support for community gardens and railed against the regulations.
This set in motion the traditional code change process, one in which City staff went through a series of committees: the Community Planners Committee (the chairs of the planning groups), the Code Monitoring Team (various experts who work with the code daily), the planning commission and then council itself. Sherri Lightner, the new chair of the Land Use and Housing Committee, pressed hard to have the code change done before the sure-to-be-grim budget hearings in June. The mayor, who was, conveniently enough, a gardener himself, had a press conference with Councilmember Todd Gloria (the longest standing garden advocate of the current councilmembers).
Going through the committees was largely a process of give and take, especially with the CPC. Staff basically added new rules for community gardens to try to assuage concerns in exchange for eliminating the Neighborhood Use Permit requirement. Ultimately, the rules were more complex --- some gardeners grumbled that they were micromanaging — but they also included getting rid of the mandatory fence and water meters requirements.
This final phase of the community garden reform effort --- when it was an official ordinance working its way through the system --- lasted approximately six months. The most tumultuous moment was going to the CPC, which devoted an unexpected almost two hours to the issue, with, according to the chair’s count, 125 people out in support of gardens. It was a confusing event --- none of the reporters there ultimately filed a story on it --- but when the dust settled, the votes were generally positive and their most ambivalent vote was also contradictory, undercutting its force. City Council was happy to vote unanimously in support on June 7th : it proved to be the rare ‘feel good’ issue in a city struggling for years with financial problems. The charter required that they vote again two weeks later. Then the mayor signed it.
Over the two-plus years of working on this, the grassroots evolved considerably. Another organization, with considerable overlap in membership with the 1 in 10 Coalition, arose, the San Diego Community Garden Network, which, once its 501(1)(c)(3) status is approved, aims to get an umbrella insurance policy for community gardens. City officials made it clear that they liked the idea of a nonprofit to ‘backstop’ the garden movement as the City lacks the resources to be an active player.
Also, San Diego County received a $16 million Communities Putting Prevention to Work grant --- essentially the CDC’s part of the stimulus package --- to do a dizzying array of health-related work. One part was a school and community garden program led by the San Diego County Childhood Obesity Initiative, which including for policy change work and also included moneys to create five Regional Garden Education Centers throughout the County to teach people how to garden and run a community garden.
Some of the federal grant money also went to the regional planning body, SANDAG, to distribute to cities doing planning activities that improved health. The City of San Diego shared in a $50,000 grant to explore urban agriculture. This in part is paying for staff time for additional possible changes, as the City has other prohibitive regulations, like a requirement that fowl be kept fifty feet from any residence, a de facto ban in many, if not most neighborhoods.
Next week, planning staff is going to go to city council’s Land Use and Housing Committee to see which issues councilmembers will initially support.
Off we go again!
