American Journal of Law & Medicine

A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe

Much has been written about the rise of the local food movement in urban and suburban areas. This essay tackles an emerging outgrowth of that movement: the growing desire of urban and suburban dwellers to engage rural areas where food is produced not only to obtain food but also as a means of tourism and cultural activity. This represents a potentially much-needed means of economic development for rural areas and small farmers who are increasingly dependent on non-farm income for survival. The problem, however, is that food safety and land use laws struggle to keep up with these changes, waffling between over-regulation and de-regulation. This essay posits a legal path forward to steer clear of regulatory extremes and to help the local food movement grow and prosper at the urban fringe. We must cultivate our garden. (1)

--Candide, or Optimism

I. INTRODUCTION

Over the past several decades, a resurgent interest in food has brought agricultural production into American cities. Just as in Voltaire's classic work, Candide, where the namesake character travels the world over only to decide it is best to be at home "cultivating] our garden," so, too, have many urban and suburban dwellers found great interest in locally grown food. Manifestations of this boom include the rise of farmer's markets and community gardens, as well as the proliferation of urban agriculture ordinances. Such ordinances typically include provisions allowing urbanites to keep chickens, grow gardens in their front yards, and engage in micro scale agricultural production, ordinarily for personal use and, occasionally, for sale at farmer's markets and neighborhood use. (2) What has received less attention is an emergent boomerang effect of this movement: while the first wave of urban agriculture has brought agriculture to the cities, city dwellers increasingly want to go to rural areas to visit agriculture in its native habitat. Wine drinkers want to visit the vineyards of their favorite wine; raw milk purchasers want to visit the farmer and the cows that made their milk; organic produce lovers want to have farm-to-table dinners in barns just feet from where the food was grown; meat lovers want to purchase beef directly from the rancher who raised--and slaughtered--the animal. Different names have been given to the movement, such as agritourism (3) or, sticking with the contemporary movement's Italian antecedents, agriturismo (4) Those who take to the movement had been called the "new agrarians" (5) and "urbanistas." (6) But none of these names capture the essence of the exploding, but nascent, movement at the rural urban fringe. Indeed, the very rise of the movement is as if today's modern Candides had decided not simply that the best of all possible worlds was in the tending of gardens, but in the tending of foodsheds. As such, the regulatory structures that need revisiting are not just those of urban and suburban areas, but the rural areas to which the local food movement now turns.

In discussing the movement, this article will use the term "food agritourism" to mean those activities, not readily fitting into existing norms of agriculture or food production, that have the following five characteristics: a local grower or producer; growing and harvesting food; producing and selling a food product; marketing activities around food products that may, or may not, involve food; and a location that is rural in character, typically at the urban edge, and that may or may not have an agricultural use on premises.

While "food agritourism" is an admittedly imperfect term, simply having any name at all for the movement can help to begin a more coherent conversation about the regulatory structures that should apply to it. While the movement has brought a spate of new business, and promises even more business, to small farmers desperate for secondary sources of income, the movement's lack of definition within cultural consciousness has also affected its growth. In the regulatory context that this article will address, that same lack of definition has also made it unclear how, and if, the food agritourism movement should be regulated under existing laws intended to protect food safety, provide safe buildings, and rationalize land use patterns.

This regulatory confusion has led to two opposing problems. First, regulators' approach to food agritourism has typically been to view this new gray area of activity as one to be regulated through existing regulations for agriculture and food production. This has sometimes led to regulation that, while appropriate in scale to the larger agricultural and food production industries, is onerous, or even irrelevant, to the small food agritourism use. Second, the regulated food agritourism community, feeling overregulated because it does not have regulations tailored specifically to it, has sought legislative assistance, typically in the form of deregulation, to avoid the onerous requirements. The instincts of both the regulator and the regulated are understandable; however, this article argues that both over-regulation and deregulation are fraught with unnecessary pitfalls. In place of these extremes, this article proposes a coordinated regulatory approach to food agritourism that prioritizes both public safety and economic development of rural communities through food agritourism.

The article proceeds in Section II by first looking at the role of food agritourism in providing an alternative source of much-needed income diversification for small farmers. In Section III, the article reviews efforts to deregulate food agritourism from food safety requirements at the federal, state, and local levels. Section IV similarly reviews efforts to deregulate food agritourism from building and zoning codes at the state and local levels. Section V offers a proposed alternative to overregulation and deregulation, which implements aspects of both economic development and coordinated regulation. Section VI offers concluding remarks.

II. FOOD AGRITOURISM AND THE RURAL ECONOMY7

The rise of food agritourism and its import for rural farms at the urban edge must be understood against the backdrop of radical change in rural economies, as well as the rise in interest in food production generally. "In 1900, about 41 percent of the total U.S. workforce farmed.... [T]his share dropped to 16 percent in 1945, 4 percent in 1970, and only 2 percent in 2000." (8) This is due largely to dramatic increases in farm productivity in the late twentieth century and especially since 1980. (9) According to the President's Council of Economic Advisors, "farm productivity nearly tripled in the second half of the twentieth century, while nonfarm productivity increased by about 75 percent"; further, the Council noted that "[a]lmost all of this divergence in productivity growth occurred after 1980.". (10) These economic factors are shifting many types of U.S. agricultural production away from smaller family-owned farms to larger industrialized farming operations. (11) Indeed, today's rural economies are exceedingly diverse in both economic activity and employment. (12)

Despite record United States agricultural exports and net farm income in recent years, (13) small farms are largely not sustainable solely as agricultural uses. (14) For those remaining on small family farms, off-farm income has provided the lion's share of income--upwards of 90% of household income--for at least a decade. (15) Most of small farmers' off-farm income is from wage-and-salary jobs or self-employment either in the adjoining rural economy or, more likely, a nearby city. (16)

This has special importance for small farms, for, as profits from traditional farming have been declining, smaller farm operators have increasingly turned to alternative sources of income as a way to supplement their household earnings and maintain their way of life. (17) An alternative to off-farm income is referred to by the United States Department of Agriculture's Census of Agriculture as an "on-farm diversification activity." While this term includes a variety of activities, it generally encompasses activities meant to widen the base of a farm operator's business to include non-agricultural uses. As one report put it, an "on-farm diversification activity" is the "entrepreneurial use of a farm or agricultural resource for a nonagricultural purpose for commercial gain." (18)

At the same time, an increasing attention to food among urban populations has also manifested itself in an increasing desire to more fully experience food production. (19) In urban areas, this has been evidenced in the rapid rise of farmers' markets, (20) as well as ordinances amending codes to permit chickens and front-yard gardens in areas where they were previously zoned out. (21) At the same time, there has been a desire of urbanites to experience rural life and interact, in some meaningful fashion, with agricultural production. According to the 2007 National Survey on Recreation and the Environment, respondents listed the following reasons for why they visited a farm, ranch, or rural setting: enjoy rural scenery (rated important by 75%); visit family and friends (53%); learn about where food comes from (46%); watch and participate in farm activities (43%); purchase agricultural products/pick produce (34/32%); spend the night (33%); and hunt and fish (14%). (22) Participating in the place where food or agriculture products are made--whether it is through a farm-to-fork dinner or a wine-tasting event--is rapidly gaining ground as a means of leisure-time activity. (23)

Most of these rural, agriculture-centered diversification efforts are based upon selling food, or they otherwise sell food as a part of another non-food activity. This has led to an intersection of food safety law and land use law in rural communities that, previously, had little precedent. As this movement expands, there is a growing need to understand how regulations for food safety and land use can work together in regulating this increasingly common rural use. The problem, however, is that there is little formal discussion of the change that is coming about, and thus little effort to provide a holistic solution to the problems. Instead, farmers upset with the regulatory problems they face have sought the exact opposite--deregulation--on the food safety and land use fronts. However, this article posits that the dramatic efforts to effectively eliminate food safety and land use regulations governing food agritourism use may ultimately jeopardize the entirety of the movement. Potential hazards for the industry include an inability to shut down rogue businesses, potential perceptions of cronyism that will taint the industry once these exemptions become public, and potential perceptions of danger in the product equally resulting from the lack of regulation. There is no need for this nascent industry to place itself at such a risk of real, or even perceived, disadvantage in the marketplace. Instead, this article will argue for, and offer, several options for a more coherent regulatory approach to these food agritourism uses that would continue to regulate to protect public health and safety, permit and encourage growth of the agritourism uses, and also protect the industry.

III. THE CASE OF FOOD SAFETY

Food products sold in food agritourism vary widely, which is a major factor contributing to the confusion in regulating the industry. On the one hand, food agritourism could involve "U-picks" where customers pick their own apples, peaches, or strawberries. However, that same U-pick might also sell apple, peach, or strawberry-rhubarb pies baked in a home kitchen. A nearby small dairy might sell raw, unpasteurized milk directly to consumers, and another farmer down the road might sell self-raised and slaughtered animals to nearby urban customers found through a local listing on a website like Craigslist. At the end of the road, an organic farm may run farm-to-table dinners on Saturday nights made from organic food planted adjacent to where the dinners are held. A collection of small farmers providing such opportunities for engagement with agriculture at the rural urban fringe is increasingly attractive to urban dwellers seeking to better connect with local food; moreover, such food agritourism is also an important secondary form of income to small farmers that need income diversification. Of course, those same urban dwellers expect that the food they purchase at food agritourism sites will be as safe, or safer, than what they can get in the local grocery store. …

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