Chapter 2: Navigating Zoning Challenges

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Zoning codes are not the easiest documents to understand, to say the least. They can be filled with ambiguities, which can be frustrating to farmers seeking certainty. Many were written long ago and have yet to catch up to innovative and diversified farming practices. Some zoning codes are silent about activities involving value-added processing or agritourism. Others can outright prohibit such activities. This, again, is frustrating. More infuriating is that farmers who belong to marginalized communities all too often face discrimination when interacting with zoning boards or officials. This includes black, indigenous, people of color (BIPOC), queer,  non-native English speakers, and others not traditionally recognized in the local agricultural community.

This guide serves to empower farmers with strategies for navigating zoning code challenges. While zoning challenges can be complex, it’s possible to address ambiguities, prohibitions, and discrimination with knowledge and strategic approaches.

Challenge 1: Ambiguities

Zoning codes may use language that is vague or open to interpretation, leading to uncertainty about whether specific activities are permitted. Alternatively, they may be entirely silent about an activity. What then?

Strategies

1. Consult with local officials: Reach out to local planning or zoning officials for clarification when code language is unclear. Local officials might be able to provide insights into the intent of the code. Be sure you document whatever is said in writing, especially if they give you a favorable interpretation. An easy way to do this is by keeping a journal or following up with your point of contact on the conversation with an email describing the conclusions.

2. Seek legal advice: Consider consulting with an attorney experienced in zoning issues. Attorneys can help navigate ambiguous language and help you understand and weigh legal or financial risks. An attorney can potentially offer an insider’s take on the preferences and personalities of the decision-makers involved, which can be important in creating a strategy for success.

3. Request interpretations: Many zoning authorities allow property owners or other interested parties to submit written requests for zoning code interpretations. When submitting a written letter, be strategic in how you explain your situation. Ideally, you will have done some research and will be able to provide some reasons for why you feel it is aligned with the zoning code.

4. Engage in dialogue: Reach out to local planning departments, zoning boards, or other relevant authorities to discuss your plans. Building positive relationships and having open dialogue can help address concerns and find mutually beneficial solutions. This, of course, depends on how open and understanding these officials are. If you can’t afford an attorney with insider knowledge, try asking other community members who have had interactions with the decision-makers for their take on how to position yourself for success.

5. Go forward despite ambiguity: While it can be risky, it is up to you to decide whether asking for forgiveness is a better route than asking for permission. A significant consideration in going this route is to consider what your neighbors would say or do once they see you engaging in these activities. Neighbors are often the ones who file complaints, so it’s optimal to have them on your side at the outset whenever possible.

Challenge 2: Dealing with Prohibitions or Restrictions

If it’s clear that your zoning code either prohibits an activity you want to pursue or requires a conditional use or special use permit, here are some strategies and tips to keep in mind when going forward.

Strategies:

1. Apply for a Conditional Use Permit (CUPS): Conditional use permits allow for specific uses that are not automatically permitted by the zoning code. They often require additional review and approval from the local planning commission or zoning board. Be sure you follow all the procedures for filing an application for the permit, which should be set forth in the zoning code. If you have questions, contact the zoning authority. Demonstrating that your proposed activities align with the goals and objectives of the zoning district can increase your chances of obtaining a CUP. It’s best to familiarize yourself the best you can with these goals, which may include reviewing any comprehensive plan or land use plan in that jurisdiction.

2. Apply for a Variance: In certain circumstances, you may be able to seek a variance from specific zoning requirements. Typically, the law would require you to demonstrate that strict compliance with the zoning code would cause undue hardship or deprive you of the reasonable use of your property. In reality, many variances are issued because local authorities like the idea and want to see the plan go forward. Variances are typically granted on a case-by-case basis and may involve public hearings and applications. They can be expensive and lengthy. You must realize that you will be in the spotlight, and some neighbors or community members may oppose your plans and even direct negative comments or actions toward you. Your relationships with your neighbors and others in your community may change. Consider how this might impact you.

3. Engage in the planning process: Participate in public hearings or meetings related to zoning changes or amendments. This provides an opportunity to express your interests, gather community support, and advocate for favorable zoning changes that align with your desired activities. Be on the lookout for meetings and opportunities to participate in any comprehensive planning process in your local jurisdiction. By actively participating, you can help shape the future of zoning regulations to better support farming activities in your community.

4. Form alliances: Seek out and collaborate with other farmers, agricultural organizations, or community groups who share similar goals– both in your community and nationwide. By forming alliances, you can amplify your voice and advocate for zoning changes that better support the needs of the greater farming community. Who knows, there may be farmers out there who’ve successfully changed their zoning code in favorable ways and are willing to share their stories and support your efforts.

5. Consult with an attorney: As you navigate your strategy, it can be helpful to consult with an attorney with expertise in agricultural and land-use law. They can help provide insight into the intricacies of the zoning process, including CUP  and/or variance applications.

Remember, each jurisdiction has its own unique zoning processes and requirements, so it’s crucial to familiarize yourself with the intricacies of your zoning code and seek local expertise to develop an effective strategy for going forward.

Challenge 3: Recognizing and addressing discrimination

For farmers who belong to marginalized communities, particularly BIPOC farmers, facing discrimination when interacting with zoning boards and officials adds an extra layer of complexity to the zoning process. Questioning zoning decisions or interpretations can be particularly challenging, given the potential for community backlash, ridicule, and threats. Discrimination should never be tolerated, but it is pervasive. Here are some strategies to keep in mind.

 Strategies

1. Document incidents: While it can be emotionally taxing, it’s crucial to keep detailed records of incidents of discrimination, no matter how minor. This documentation will be vital if you decide to pursue legal action. Include dates, names, descriptions of discriminatory behaviors or comments, and any witnesses.

2. Engage community support: Identify and build alliances with individuals and organizations in your community that support equity and inclusion. A strong community presence can deter discrimination and provide witnesses if needed.

3. Seek advocacy: Connect with advocacy organizations or legal groups that specialize in civil rights and discrimination issues. They can provide guidance and support.

4. Know your rights: Familiarize yourself with civil rights laws that protect against discrimination. Be aware of your rights when interacting with zoning authorities.

5. Consult with an attorney:  If discrimination persists, you may consider legal action.

Remember that you are not alone in this journey. Leverage local resources, community support, and legal assistance when needed.

Moving Forward

The bottom line is that when it comes to zoning, knowledge is power, and if you don’t like what you know, you might have the power to change it.  Ultimately, the goal is to ensure that zoning codes and regulations are fair, transparent, and supportive of diverse farming activities and communities. Through collaborative efforts, we can contribute to a more inclusive and equitable agricultural system where all farmers, regardless of their background, can thrive and contribute to their communities.

1. Did you research your zoning code, including identifying any areas of uncertainty? If yes, then congratulations! You have already boosted your legal resilience by gaining this knowledge. Now, you can apply your zoning knowledge to your business plans according to your risk tolerance and goals. If not, consider making this a priority item on your to-do list, especially if you are expanding or adding new activities to your operation.

2. If your desired/current activities aren’t allowed or are unaddressed by the zoning code, do you want further help (to clarify or change the zoning code) or do you want to manage risk in alternative ways? If you need further help, either from the zoning authorities themselves or an attorney to get to a level of certainty I’m comfortable with reading the Farmers Guide to Working with Regulators to help you prepare. If you want to seek out alternative options, connect with your peers, advisors, and local farm advocacy organizations for further support.