Urban homesteader challenges city on sale of edibles

Sophie Hahn, founder, Berkeley Edible Garden Initiative

Should city dwellers be allowed to sell their backyard bounty?

Sophie Hahn thinks so. The North Berkeley resident wants to share the abundance from her residential produce plot and offset some costs she incurs maintaining her edible garden.

But Hahn ran into hiccups with the city last year trying to get her idea off the ground. “I had no idea it would be so complicated,” she says. “It’s actually easier in Berkeley to have a pot collective than to have a vegetable collective,” a frustrated Hahn told  a New York Times reporter in August.

Or pretty much any other home-based business. That’s because Berkeley’s zoning codes prohibit selling or otherwise conducting commerce outside a house in a residential neighborhood. Never mind that many residents (this writer included) toil from inside their homes. City codes allow for small, low-to-moderate impact home businesses, such as piano teachers, explains Dan Marks, director of planning and development for the city.

But outdoor activities where cash changes hands remain a no-go. The laws are designed to protect the quality of residential communities from traffic and parking problems, as well as offensive or objectionable noise, odors, heat, or dirt.

Fair enough. Still, Hahn was hardly about to set up a produce stand and solicit customers via a bullhorn in her sleepy, leafy corner of the world. Her forty-by-sixty foot micro farm produces only enough food for about five or six families. She just wanted to charge a weekly fee for a basket of food, modeled along the lines of what local farmers do with Community Supported Agriculture (CSA) boxes, where residents pay a subscription in return for regular deliveries of fresh, seasonal eats.

Willow Rosenthal harvests Sophie Hahn's garden. Photo: Sarah Henry

Hahn and her supporters find it ironic that such obstacles to urban agriculture exist in a city that included building a local food system as part of its long-term Climate Action Plan.

An attorney by training, PTA president at King Middle School, and former City Council candidate, Hahn wanted to go the legitimate route. She did approach city officials about what it would take to get an exemption to the current code, but decided that the cost, public hearing, and wait period was prohibitive.

For Hahn, putting the land behind her home to good use was a no-brainer. Still, it’s not cheap: there’s the initial set-up costs, including garden bed construction, drip irrigation, animal, seed and plant purchases — in addition to ongoing payments for the two farmers who tend the garden.

Since Hahn is not a green thumb herself, she hired urban gardener Willow Rosenthal to turn her terraced, sloping backyard of ugly sod into a thriving produce garden. Eight planter boxes boast leafy greens like chard, lettuce, and kale, root vegetables, and herbs. There’s a compost bin for green waste, a chicken coop, a dozen or so hens — and more food than Hahn’s family of five can eat. It’s a clean, green, quiet, productive plot.

Plenty of other local residents grow veggies, raise chickens, and keep bees for their own use, of course, and some admit to bartering with neighbors or selling surplus on the sly to friends and acquaintances — or even to local food businesses and restaurants.

But Hahn, a longtime Berkeley dweller, is the first of a new breed of Berkeley D.I.Y. urban homesteaders to cultivate controversy by challenging what she sees as an arcane law.  Needless to say, changing city code is a lengthy and complex process, but not without precedent. In San Francisco a similarly restrictive zoning code was recently overhauled, after an outpouring of support for Little City Gardens, which ran into pushback there when it tried to expand.

Elsewhere around the country, cities including Detroit, Kansas City, Mo., and Seattle have recently relaxed bans on produce selling by farmers.

Guerrilla gardener Novella Carpenter. Photo: Sarah Henry

Following a citizen complaint, ghetto grower, Farm City author and Berkeley business owner Novella Carpenter was recently singled out by officials in Oakland, for selling chard without a business license at her pop-up farmers’ market stand at her Ghost Town Farm, and keeping livestock (rabbits, goats, and chickens) without a conditional use permit.

A community outcry ensued for the iconic urban farmer. As of yesterday, revised Oakland city codes no longer prohibit Carpenter from peddling her greens.  But selling chickens, ducks and rabbits is still illegal, since the new laws don’t apply to livestock. (Carpenter has previously made rabbit potpies available by donation.) The city will return to the issue in coming months and judging by comments on Carpenter’s blog, sympathetic press coverage, and support for the guerrilla gardener from allies like the Oakland Food Policy Council, officials can expect a healthy show of support during public comment.

Marks concedes urban agriculture code changes may be happening faster in other Bay Area cities because of community backing for high-profile cases. There’s simply not been that kind of outpouring of support in Berkeley, says Marks, adding there are no plans to tackle the matter any time soon as it remains a low priority for his department.

Such sentiment doesn’t sit well with Hahn. Berkeley’s residential gardens are a significant untapped resource for the production of fresh food for the the community, she says. Hahn has founded the Berkeley Edible Garden Initiative to put pressure on the city to update codes so small-scale ventures like her own can operate. Hahn has the support of fellow residents, including councilmember Jesse Arreguin, author Michael Pollan, and the Ecology Center, whose magazine Terrain first reported on her dilemma last Spring.  Supporters can register online on behalf of Hahn’s cause.

“I value and want to protect the residential quality of our neighborhoods,” Hahn says. “I think we can do that while still allowing reasonable economic activity associated with a social good — in this case growing fresh food to share.”

For now, Hahn gives her excess greens to grateful neighbors for gratis.

Sarah Henry is the voice behind Lettuce Eat Kale. You can follow her on Twitter and become a fan of Lettuce Eat Kale on Facebook.

Related:
Urban farmer Willow Rosenthal plants seeds in Berkeley [3.4.11]
Berkeley Bites: Jim Montgomery, Green Faerie Farms [10.29.10]
Berkeley Bites: Novella Carpenter [04.30.10]
Garden teacher Kim Allen offers youth space to grow [01.21.11]

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  • Charles_Siegel

    “Berkeley’s zoning codes prohibit selling or otherwise conducting commerce outside a house in a residential neighborhood.”

    Does this mean that all the garage sales and yard sales I see in Berkeley are illegal? There obviously should be exceptions for certain sorts of occasional activity, such as yard sales and selling vegetables you grow yourself.

  • Andrew

    Good point. And what about the corner drug trade in some areas…

  • Andrew

    This is a great article! I plan to follow up on this topic. Being how we are about food in Berkeley we should be all over this concept. But I suppose cities move about the pace of the snails in my garden. Grow local, sell local, buy local… what’s not to like.

    If the city does not want people to do business in their back yards then why not set up an area at the Berkeley farmer’s markets for locals to sell their foods there? Keep it distinct from the larger vendors so they don’t get upset.

    Or what if the food is sold inside the house? Just because the food grows outdoors does not mean that it has to be sold outdoors.

    The money though may not be as simple as some of these urban farmers think. When I had a home-based business I had to pay a minimum $800 tax to the state regardless of how much I made (as an LLC). If these urban farmers expect to offset their costs they will first have to pay the tax man. I wonder what kind of business structure these urban farmers would fall under. Anyone know?

  • David Dempster

    There is a reasonable solution in there somewhere, but in typical bureaucratic fashion, the City drags its concrete laden brains and feet.

    This is an opportunity for Tom Bates, et al to match action with his rhetoric. I predict it will take months, if not years, for the “progressive” bloc on City Council to come around. I’d love to be proven very wrong, indeed.

  • The Sharkey

    The easiest way to get around this kind of thing is to have a “Produce Club” that people pay a nominal fee to join (two or three dollars), and then club members can buy things that skirt the normal laws for food & produce sales.

    This is how the various branches of the Underground Farmer’s Market are able to exist, and it seems to work well for them.

    http://foragesf.com/market/about/

    I have a lot of respect for the people who run the Underground Farmer’s Market and find a way to do what they want within the law, and just about zero respect for people like Novella Carpenter who think they can get away with illegally occupying property and breaking laws without consequence.

    I applaud the ideas Carpenter represents, but instead of just ignoring the law and then complaining when it comes back to bite her it would be nice to see people working harder to get the law changed so that others can do the same thing.

  • The Sharkey

    I don’t think there are any laws against bartering in Berkeley, and I don’t know that it’s taxed either. Perhaps the easiest way to get around some of this is for urban farmers to simply barter one good for another.

  • Andrew

    Bartering is different. From the article it sounded like these urban farmers want to sell their goods.

  • The Sharkey

    I think you’re supposed to get a permit to hold a yard sale.

    http://www.ci.berkeley.ca.us/ContentDisplay.aspx?id=11438

  • The Sharkey

    Sure, but if they want to exchange edibles for cash then they need permits, they need inspections, they need to follow certain safety guidelines, etc.

    If they’re really not interested in trying to make a profit off of this, bartering or some sort of other “creative exchange” would probably be their easiest solution.

    Bartering, or a system similar to what the Thai Temple does, where “donations” are exchanged for tokens, and then the tokens are exchanged for food, might be the easiest way around this.

  • Sharon Danks

    Great article! Go Sophie! I agree that in a city that promotes a green lifestyle, local food production makes a lot of sense. Selling the food raised in backyards is a logical next step. I hope the City of Berkeley will make this easier for residents to do in the future.

  • TN

    I think that the zoning issues are inevitable when there’s a major change in how people live and work. I recall that in many communities there was a lot of hubbub when people began to work at home, either directly employed by others or as independent contractors (“consultants.”) Many cities’ zoning codes didn’t permit it, it was argued. Obviously this issue from 20 or so years ago has been completely forgotten. There are home based workers in many, many fields in all communities now. Rarely is a complaint heard as long as the activity doesn’t generate “traffic.” Or more directly, a shortage of parking.

    What interests me more is that Sophie Hahn is taking a step beyond a home gardener trying to sell produce she’s grown herself. She’s employing someone else to grow vegetables on her land. I imagine that this case will cause cities to both permit the activity and impose limits.

  • http://www.facebook.com/citizen.dodsworth Commissioner Asa Dodsworth

    silly farmer, she should planted sky scrappers.

  • Anonymous

    I think it’s time Berkeley changed it’s name to Bureaucracy….much more appropriate in these modern times…cough !

  • http://www.facebook.com/citizen.dodsworth Commissioner Asa Dodsworth

    Tom Bates help out!!!,
    maybe if she was planting biotech labs in the West Berkeley Arts District.

  • http://www.facebook.com/citizen.dodsworth Commissioner Asa Dodsworth

    Tom Bates help out!!!,
    maybe if she was planting biotech labs in the West Berkeley Arts District.

  • http://www.facebook.com/citizen.dodsworth Commissioner Asa Dodsworth

    how different is bartering, you are after all supposed to pay taxes on bartered commerce.

  • http://www.facebook.com/citizen.dodsworth Commissioner Asa Dodsworth

    LLC’s cost $800, to get you limited liability, and are not necessary to do business. A fictitious title from the county costs about $20 bucks and allows you to do business under a made up name like “Berkeley Farms”.. You technically may be required to get a County Ag license to sell produce, I’m told the cost about $75, and then you could apply for a stand at teh Ecology Centers Farmers Markets, or can sell your produce on the sidewalk, as long as you carry no more then $200 produce on you at a time. But that doesn’t stop the Code Enforcement from pretending its a BFD, or Dan Marks from saying its low priority, Question, is the Climate Action Plan Low Priority??

  • http://www.facebook.com/citizen.dodsworth Commissioner Asa Dodsworth

    I do believe bartering is technically taxed, though most people don’t pay. Then again many don’t pay their full share of taxes anyway. time exchanges however are not taxable.. If they are egalitarian, ie directly hour for hour, and there is a bay area group that does just that, http://timebank.sfbace.org/ http://sfbace.org/

  • Alethia

    This trivial pursuit sure looks like a politically driven activity to attract votes for a city council run during the next election cycle. It’s ridiculous for someone to have 2 gardeners and then claim they want to sell the produce to offset the cost. Only in Berkeley would this silly initiative garner a positive response. Anyone can sell produce to their neighbors right now without any negative repercussions. We do and we have for years. And anyone can also get certified by our farmer’s market and sell there. Another pointless entertainment instead of actual serious policy proposals.

  • Bruce Love

    A lot of people are looking towards a kind of permaculture future…. wherein we’d expect a great number of yards to be turned over to urban farming and for owners to be renting the space out to farmers. An incremental approach to zoning reform seems necessary but the profundity of what is under way here shouldn’t be underestimated. I’m glad Ms. Hahn is taking it on.

  • Anonymous

    If Sophie can’t sell carrots, then why are the fellows hawking strawberries and oranges on our street corners given a free pass?

    Now that’s a nasty scam. An “entrepreneur” buys old produce at discount, hires day laborers for next to nothing, drops them off, and shows back up in the afternoon to “harvest.”

    It would be nice to think the sweet fellow who thanks you for buying was benefiting somehow. Instead it’s just another example of exploitation of the weakest among us.

    But here’s the “Berkeley” part:

    At the intersection down the street people were stopping in the middle of the street to barter with one of these vendors. After witnessing several near accidents and one nearly run over dog and owner I called the BPD to report a traffic hazard: “Sorry, that’s a code violation, you need to talk to the code enforcement people.”

    The code enforcement people are apparently an answering machine with a female voice directing you to another answering machine with a male voice which tells you to call back. Nice work if you can get it (not to mention the benefits.)

    After repeated calls, voicemail’s and a message to the mayor’s ernest young assistant, the code enforcement person put down their Escalade brochure and rode out to cite the guy.

    As luck would have it I was driving by as the nice young man nodded his head to the portly code enforcement guy. He was nodding the way one does when one don’t understand a word being said.

  • curious

    I’d be interested in seeing a list of which members constitute the “progressive bloc” on the City Council.

  • Fred

    Terrific. Sophie Hahn is trying to corporatize our residential neighborhoods and backyards. What an elitist waste of time. How man people in Berkeley actually have the ability to plant 2,600 square feet of land, that must be tended by two hired farmers? If you have the luxury of that kind of space you should just share with your neighbors or a local Berkeley non profit. Or donate to a homeless shelter.

  • Jen32

    Thank you for crystallize this so honestly! I was afraid nobody would have the guts. I didn’t.

  • DC

    There’s an incredibly long wait to get certified by and sell at farmer’s markets. It’s a tightly controlled group, and you have to wait years sometimes to get the OK to sell. It’s not just getting certified, but the market deciding IF your product is unique and interesting enough that they will let you in.

    http://blogs.kqed.org/bayareabites/2011/04/02/becoming-a-farmers-market-vendor/

    And why should someone go through all of this just to sell some lettuce? That’s crazy.

  • Anonymous

    Sophie Hahn may be affluent, but most of the people I know who are doing this are definitely not. They are living on the cheap, offsetting their grocery bill by growing their own. There are no corporations involved in this movement. If anything, small, hyper-local enterprise is the opposite of corporations. It’s what allows people the freedom to extract themselves from commerce with corporations. It’s a neighbor selling beans to the neighbor down the block, just like what happened in generations past. There are plenty of properties in Berkeley with big lots; that is not exclusive to high-income residents.

  • Anonymous

    I want to second DC’s point: it is not easy to get certified to sell at a farmers’ market, and the Berkeley Farmers’ Markets have long waiting lists. The areas they occupy are limited, so there is only a limited number of vendors. Those are coveted slots, and it’s only when a vendor decides to leave that there is a vacancy. When a vacancy opens up, the Farmers’ Market Committee selects a replacement based on the “mix” of what’s already at market (eg. if there are already three vendors selling strawberries, they won’t choose another strawberry vendor. They’ll choose someone that sells something that’s in short supply at the market.)

    I’m all for opening up the permitting process to enable more of this kind of commerce to proliferate.

  • Alethia

    I’m a certified producer. It’s easy to become one. You can apply online at http://www.cdfa.ca.gov. Of course you have to grow stuff nobody else is growing if you want to make money. That’s not unique to farmers’ markets or to informal sales to neighbors. That’s why miracle berry growers can charge $2 per berry. It took about 3 months to get space at markets in various counties, Berkeley excepted. And you have to commit to selling in the off-season. But you go through this because it’s profitable. Margins are way higher at farmers’ markets than if you sell to Monterey Market, Berkeley Bowl or neighbors.

    But that’s not really the point I was trying to make. The point is that anyone in Berkeley can sell or give their product to anyone they want, with the exception of controlled substances such as some citrus products and SOD host products like bay leaves. Maybe selling bags of oranges on street corners might get you in trouble, but handing produce boxes to neighbors will not. There is no need for any sort of initiative. It’s a phony cause awaiting the benediction of Michael Pollan.

  • Anonymous

    “There is no need for any sort of initiative. It’s a phony cause awaiting the benediction of Michael Pollan.”

    Maybe so, I’m undecided and don’t have the full picture. But I see neighboring cities where urban ag is surging making similar moves to change the laws. Why would backyard and vacant lot growers devote time and energy to pursuing these changes? What’s their motivation, if they are not running up against some roadblock?

    You can, of course, sell your product to anyone you want, but if you get caught (like Novella did) what’s the punishment? Should there be a punishment?

  • Bruce Love

    Some people are suggesting that the goods be sold off-site such as at a farmer’s market. That won’t fully solve the regulatory problem. If the farm is regarded as a home occupation it probably falls in the “other” category of businesses that produce, handle and transport goods — meaning it would require a use permit with public hearing and could wind up owing the city a license fee. It is the kind of activity that if you poured a lot of money into getting it started, but didn’t go through a hearing and getting a use permit, a disgruntled neighbor could cause you lots of problems.

    The notion that this is a “fake” or self-indulgent or self-promoting issue seems foolish to me. Growing the urban farming scene to commercial scale can help with food security, can help with import replacement, can reduce the city’s water footprint, can improve food security and disaster preparedness, can reduce the city’s carbon footprint …. there’s a lot of good it can do. It isn’t easy. It takes pioneers to assume the initial risks and help engineer ways to make it work well. One of the very first problems that comes up that needs solved: zoning issues.

  • Alethia

    There is no regulatory problem. Many area farms (sign up for Full Belly Farms for great produce boxes) deliver their produce as CSA boxes to Berkeley/Oakland/El Cerrito/Albany locations without any initiatives or zoning conundrums. There’s no reason why anyone in Berkeley cannot also deliver their produce as CSA boxes. That includes walking the box to neighbors. This does not violate any existing zoning laws or the concern mentioned in the article that “Berkeley’s zoning codes prohibit selling or otherwise conducting commerce outside a house in a residential neighborhood.” Delivering a box to an address is not conducting commerce outside a house in a residential neighborhood. Ask UPS, FedEx or the USPS.

  • Alethia

    That’s a good question. I don’t know what Novella did. It sounds like she had a lot of livestock. That’s a very involved issue. Livestock causes problems for neighbors when plants do not. For example, chickens attract rats. Lots of rats. If you don’t remove the droppings regularly, it becomes a nuisance. Roosters are also a big nuisance and I have scars on my scalp to attest to that. And I can imagine that lots of people would not want to live next door to a place where animals are slaughtered. Zoning issues aside, everyone needs to be a considerate neighbor. And that’s easier to do if you’re raising cantaloupe as opposed to goats. So I don’t have the information to offer an informed opinion on what should happen to someone who gets caught violating zoning laws that pertain to urban homesteading. It’s trickier once animals enter the equation.

  • Bruce Love

    By selling the boxes, however they are delivered, the back yard farm becomes a home occupation where goods are produced, stored, and transported. it runs afoul of the “Home Occupation” chapter of the municipal code (Chapter 23C.16)

  • Bruce Love

    “terrain” magazine covered this Hahn / Rosenthal / Berkeley zoning story in Spring 2010. Their story contains some more details about the legal concerns.

    http://ecologycenter.org/terrain/issues/spring-2010/urban-farms-vs-urban-zoning/

  • Alethia

    My attorney disagrees with you.

  • Bruce Love

    The City agrees with me:

    The problem is that Berkeley’s zoning code says nothing about a neighborhood CSA, and its absence is significant. Technically, such an operation would be considered a business, since money changes hands. But Hahn’s North Berkeley neighborhood is strictly residential. Its zoning code allows people to run small, low- or moderate-impact in-home businesses but mandates that all activity take place indoors. It also forbids “customer visits,” “handling or transport of goods or products” on-site, and “offensive or objectionable noise, vibration, odors, heat, dirt, or electrical disturbance perceptible by the average person.” An outdoor operation that uses a pickup truck and a compost pile, and would require customers to pick up vegetables, is not allowable under the code.

    Hahn and Rosenthal discovered all this when they called the city’s health and planning departments to see what would be required to get a business license. While all the city officials they talked to said they supported the project in theory, they said that legally, there was no way to make it work. One official, says Hahn, described the farm as a “high-impact home occupation.” If Hahn and Rosenthal wanted to go ahead with the project, they were told, they would need a special exemption, which would require a public hearing, six to eight months of waiting, and close to $4,000 in fees. After months of haggling, they pulled their application last summer and decided to regroup the following season. “We didn’t think it was going to be so complicated,” says Hahn.

    Berkeley city planning director Debbie Sanderson agrees that while a backyard CSA sounds like a good idea, as the laws are currently written it is unquestionably illegal. While the city could change its code, either under the direction of the city council or in response to a citizen petition, the process
    is lengthy and complex. The most recent change, which created a provision allowing in-home teaching, took nearly a year to implement, Sanderson says. Still, she says, the code is a living document: “Life in the world is always changing, so the code has to change too.” Indeed, the question of how to integrate agriculture into urban landscapes has started to pop up in American Planning Association journal articles in recent months—one article analyzed the cities of Portland and Vancouver—but it hasn’t come up in Berkeley until now.

    Decades ago, when Berkeley’s zoning codes were written, people wanted cities to be urban. Ornamental landscapes demonstrated leisure and wealth, a lifestyle different from working on the land. Far from encouraging backyard farms, city planners dismissed them as relics of the past. It’s only recently that people began transitioning to backyard farms. (Or, as Hahn prefers to call them, “edible gardens”—“When you say ‘farm,’ people think of tractors and Porta-Potties,” she says.)

    http://ecologycenter.org/terrain/issues/spring-2010/urban-farms-vs-urban-zoning/

    (The writing there is slightly unclear on one point but hopefully it is clear to you that retail trade on-site is not what determines the potential violation — it only adds to the list. 23C.16 makes that more clear.)

  • Alethia

    Hope you get a great sense of fulfillment from the city planner agreeing with you.

  • DC

    What exactly is the point in personal, snarky insults? That isn’t exactly constructive. Can people please just address the issues? Thanks.

  • another BUSD parent

    wow…how to you carry $200 of produce on you (that’s not weed)?

    Just askin’

  • Sophiehahn

    Hi there. Great to see this discussion. Sophie Hahn here. To clarify a bit . . . the barrier we ran into was not about outdoor “sales” vs. indoor. We wanted to do a CSA-type situation where participants pay a fee per month to support the undertaking and in exchange they share the bounty – a little lean in the winter and abundant in the summer – with a total of 5-6 families, including our own, so only 4-5 members other than ourselves. Because there was an exchange of money involved, it was classified as a “business” (which is defined very broadly to include any exchange where there is “gain” – if I remember correctly – so it covers barter and “creative exchanges” as interpreted by the City). The hurdle then was to be allowed to conduct this “business” (at a loss) from our home (indoors).

    The “business” would be keeping a single spreadsheet, billing 4-5 people once a month and receiving checks, as well as delivering the baskets (by foot! next door!) once a week – NO HOME VISITS by any “customers,” ever (except when they come over for dinner, since they would include our next door neighbors, my parents a few blocks away, and two other friends). That is the “impact” and “business” that triggered the need for the onerous permit! Very, very small scale and very, very low impact. One can grow whatever one desires in a backyard, so there are no special hurdles to grow edibles. It was purely the “business” aspects (the spreadsheet, the checks, the baskets being assembled and delivered) that caught us in a situation that would require an onerous, $3,000 permit with public hearings and such.

    The legislation we are proposing makes this kind of set-up (not just CSA-type – allows more flexibility) in Residential areas subject to a permit, but an inexpensive, over-the-counter one. It paralells permitting for other home based businesses such as tutoring or music lessons, and limits impacts to the residential area in virtually identical ways.

    It is worth noting that in Berkeley a Medical Marijuana collective can be run out of any home (actually, any unit in Berkeley – apartments, houses, condos, etc.) without any permit required whatsoever. It can have as many colletive members as its crop can support, with no limit on how many “customers” come and go on any given day, week or month. Money can be exchanged. All of this is without permitting requirements whatsoever. So, the barriers to a tiny, neighbor/family organic vegetable CSA are truly herculean in comparison. Go figure!

    For more information, check our website: http://www.berkeleyediblegardens.org.

  • Jen32

    In generations past they “sell” their groceries to each other, they traded. That’s the problem. Sophie didn’t support our Downtown Plan, which will allow more people (and low income people) have places to live near transit and jobs. But she is willing to spend City Hall’s time to maximize her profit potential in her residential neighborhood? Again- let’s try to focus on the things that are important in our city.

  • Jen32

    Didn’t sell their groceries to each other.

  • Jen32

    Didn’t sell their groceries to each other.

  • Bruce Love

    There are some aspects of the proposed zoning changes that seem odd to me. I’m referring here to this:

    http://berkeleyediblegardens.org/gardens/proposed-zoning-changes/

    Might you please clarify:

    in 23C.16.030B you retain requirements for indoor business operation and fewer than 400 square feet. (1a) I’m having trouble not reading that as qualifying “grown on the premises” since the activity of growing and harvesting and so forth is surely part of the occupation. I understand that the changes to (2b) are also trying to kind of get at that but…. I could read these provisions as allowing me to grow and sell dill in my kitchen window but not tomatoes in my garden.

    I’m not familiar with what you mean by (1d) “[Be certified by the Alameda County Department of Agriculture]”. Does this mean organic certification? Some kind of producer’s license for farmer’s markets? (And, why is this provision needed?)

    Finally, does the gross receipts tax mean “9.04.140 Grocer, retail or wholesale.” or …. ?

  • Anonymous

    I don’t know Sophie Hahn, so I don’t have an opinion on her motivations. In generations past (and present) there was both trading and selling. My parents and grandparents bought produce from a guy who used most of his yard to grow surplus vegetables that he’d sell. It happened outside the realm of regulated commerce, which is where it exists now, too.

  • Sophiehahn

    The 400 feet is confusing to a lot of people. The growing is not the business and doesn’t require a permit. You can grow whatever you want in your yard – edible, ornamental. You can hire gardeners to tend your garden. These activities do not require a permit.

    The 400 feet or 20% limit is the size of the space within the residence that can be devoted to the commercial activity. The “business” is the selling/trading/running of the cooperative, as well as the transitory bundling of the produce for giving out. That is what is restricted to 400 square feet/20% of the dwelling, not the growing. The general purpose of this limit is to preclude homes in residential areas from being converted into commercial space.

    We maintain this limit in our proposed code change because we also want to protect the nature of residential neighborhoods as primarily residential, and not commercial. We don’t think selling/trading/sharing what you grow in your backyard unduly impacts the residential nature (edibles grow as silently as flowers and require no more labor than a well tended ornamental garden). The general concern on the part of the City (expressed via its code – we have never spoken to Mr. Marks) is the potential impact of commercial activity in residential areas (traffic, parking, signage, etc.). Some activities with limited impacts are allowed with an over-the-counter permit – Teaching Related Occupations – even though they bring some traffic, parking and other impacts. All we are trying to do is to allow the same limited impacts for activity related to the sharing of excess produce grown in a backyard – in exchange for value.

    The Alameda County Ag Certification is in brackets because at the time we proposed this code change we were still investigating whether it should be included. We have concluded that it is not necessary and will advocate that this be removed (but it’s in the version already introduced to Council so we keep it up on the site).

    Ag Cert is necessary to sell in a farmer’s market. Its purpose is to ensure that the produce sold at the market was actually grown by that farmer, and resellers can’t “game” the farmer’s market venue by selling stuff they didn’t actually grow. When you can visit the locale where your food is grown (a neighbor or friend’s backyard) there is no need for such certification – you know where your food comes from. Since Ag Cert can be a cumbersome process, it would provide another unnecessary barrier to the small scale sharing of produce grown in residential gardens. We will take a position that it should not be required unless the home grown produce is intended for sale at a farmer’s market (in which case Ag Cert will be required by the Farmer’s Market in the context of getting permission to sell at their venue).

    On the taxation issue, we are trying to get firm answers from the City as to what taxes would actually apply. It is hard to decipher the code! We will advocate that these activities be exempt or taxed only when they reach a certain threshold of profit – which most residential sharing situations – by their small scale nature – will never achieve. It is possible that a residential garden could yield some real profit for someone under a particular circumstance, but in general, the reason to undertake this activity is for the environmental, labor and health benefits, all of which are abundant. The exchange for value (money, barter) is incidental – to offset the costs of all those other benefits.

    We are working in collaboration with the Ecology Center to create an updated proposal based on great input we have received since “getting the ball rolling” by introducing this at Council. We appreciate thoughts and input. If you would like to discuss, maybe you want to contact us offline as this may be getting a bit long for readers! Finally, we would love to know the name of Alethia’s lawyer. The City is pretty adamant that permits are required for many of the activities he/she says don’t require them. If someone has better information or a different experience that would allow these activities to be undertaken without City interference, we would love to know about it!

  • Bruce Love

    Thanks. I’m concerned about some of the theories upon which you are relying and how they are reflected in the proposed ordinance:

    * A minor point: the limitation to “fruits, vegetables, and other unprocessed edibles” (23.16.030B) seems unnecessary: why exclude ornamental plants? why exclude starter plants?

    More important:

    * I can’t strongly enough encourage you to reconsider 23C.16.030B(1a): “[Such Home Occupations must:] a. Occupy less than 400 square feet and less than 20% of the dwelling unit or group living accomodation room.”

    I recognize that you have a theory here:

    The growing is not the business and doesn’t require a permit. You can grow whatever you want in your yard – edible, ornamental. You can hire gardeners to tend your garden. These activities do not require a permit. [Therefore, only the indoor bookkeeping is the “home occupation”.]

    I think that theory is not quite true on several grounds that call into question both whether this kind of growing is permitted and whether or not only the “indoor, sitting at your spreadsheet” part comprises the home occupation:

    a) Berkeley zoning is clear that a certain percentage of your residential usable open space must be landscaped. In your discussions with the press, and just generally from an understanding of what urban farming trends towards, your use (and the uses of those that follow) tend towards an intensity of production not characteristic of the traditional scope of landscaping. This shift in the character of use arguably violates landscaping requirements unless it is more explicitly authorized.

    b) In the cannabis cooperative cultivation laws, the City recognizes that plants of value, in sufficient density, can encourage trespass, theft, and even violence. A fruit and vegetable planting at a single residence, producing enough surplus for six households, certainly incurs similar risks. This further helps to establish that this kind of farm is different from what is contemplated as a “garden” by R-1 zoning. (12.26.040E)

    c) The activity you propose to authorize (taking orders, receiving payment, etc.) only actually needs zoning authorization because the business activity involves the production, storage, and transport of goods on site. That production, storage and transport — part of the business activity — does not take place on that indoor 400sq ft. but rather it takes up a good deal of your usable open space. This suggests that the activities taking place in that usable open space are not mere landscaping (even though they may be superficially similar): they are a business use not yet permitted by the zoning law and arguably still not permitted after your proposed changes.

    d) Other California jurisdictions have made a clear distinction between commercial agricultural use and simple landscaping. These codes have been interpreted so as to prohibit a “garden” run for money when the exact same “garden” would be lawful if not run to produce goods for sale. Thus, even if we agree that the self-same activity would be lawful if no goods for sale were produced, there is precedent that the conversion to a money operation makes the open space a nexus of the business, not authorized by the indoor-400sq ft. rule.

    e) In your case, the business activity has revenues, a product delivery service, and employees. The majority of the work of your employees takes place in that usable open space. This again helps to establish that your home occupation occupies that open space.

    f) If your operation reaches a point where you itemize the business on your income taxes, no doubt you will want to deduct expenses incurred in the outdoor space.

    I understand the rationale here for not saying anything in the proposed legislation about the outdoor space:

    We maintain this limit in our proposed code change because we also want to protect the nature of residential neighborhoods as primarily residential, and not commercial. We don’t think selling/trading/sharing what you grow in your backyard unduly impacts the residential nature (edibles grow as silently as flowers and require no more labor than a well tended ornamental garden).

    And, of course. I think there has to be some way to write the home occupation changes that both the outdoor space is a permitted nexus of the home occupation and that can’t be construed as granting exemption from things like noise ordinances, pollution rules, etc.

  • GPO

    It’s a pity that DISQUS does not enable a “thumbs down”/dislike option for certain excessively longwinded, self-aggrandizing type comments which tend to stymie rather than facilitate meaningful discussion. The one above by TL, inter alia, is almost 900 words long. Who has the time or energy to engage with this type of endless, wearisome, filibustering?

  • The Sharkey

    “An outdoor operation that uses a pickup truck and a compost pile, and would require customers to pick up vegetables, is not allowable under the code.”

    It’s pretty clear that the writer of that article doesn’t really understand the details of what they’re talking about.

    The use of pickup trucks and compost piles in the example don’t really make a lot of sense since neither of them runs afoul of any Berkeley zoning laws and both are fairly common.

  • The Sharkey

    Are you new here, or just not familiar with the antics of Thomas Lord (aka Bruce Love)?