06 02 14 Urban Ag Presentation Materials

2014 MUNICIPAL ATTORNEYS INSTITUTE

LEAGUE OF WISCONSIN MUNICIPALITIES

“Urban Agriculture and Urban Animal Keeping

Part 1: Urban Agriculture & Enforcement”

June 19, 2014

8:30 a.m.

Douglas J. Hoffer

Assistant City Attorney

City of Eau Claire

203 S. Farwell Street

Eau Claire, WI 54702

(715) 839-6006

[email protected]

June 18-20

Municipal Attorneys Institute

League of Wisconsin Municipalities

Chula Vista Resort

Wisconsin Dells, Wisconsin

mailto:[email protected]

Hoffer/Urban Agriculture and Urban Animal Keeping

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I. HISTORY OF URBAN AGRICULTURE

a. Historically agriculture was often maintained close to cities because of

transportation limitations

i. Small scale agriculture such as home gardens common throughout

history as residential accessory use

b. Impact of industrialization

i. Created ability to safely transport food products farther distances

1. Refrigeration and refrigerated trucks

2. Air & train transport

3. Interstate highway system

ii. Increased demand for food thus making large scale commercial

agriculture more profitable

iii. Urban expansion created environmental and sanitation related

challenges that pushed a lot of agriculture out of urban areas

1. Significant reductions in urban animal keeping

a. Example: New York City

i. Health Bill of 1866 created regulatory

framework for dealing with health and

sanitation problems to enhance quality of

life and prevent the spread of disease

ii. In 1877 City Health Board banned chickens

and other fowl due to public health concerns

iv. Increased “suburbanization” pushed agriculture further away from

large cities

1. Increased focus on residential property values

c. Exceptions to movement away from urban agriculture

i. World Wars & Great Depression

d. Current trends

i. Movement towards relaxation of urban agriculture restrictions


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II. IMPACT OF MODERN ZONING LAWS ON URBAN AGRICULTURE

a. History of Zoning Laws

i. First Wisconsin zoning ordinance created in 1920 (Milwaukee)

ii. Milwaukee zoning ordinance upheld by Wisconsin Supreme Court

in 1923, prompting other Wisconsin cities and villages to adopt

zoning ordinances. State v. Harper, 182 Wis. 148, 153, 196 N.W.

451, 452 (1923).

iii. United States Supreme Court upheld the police power of

municipalities to regulate land use via zoning ordinances as

constitutional in Village of Euclid v. Ambler Realty Co., 272 U.S.

365, 397 (1926).

b. Post Euclid – Federal government encouraged widespread adoption of

use-based zoning ordinances.

i. Standard State Zoning Enabling Act published in 1926; Standard

City Planning Enabling Act published in 1928

1. Formulated to promote health, safety, morals, and general

welfare

2. Designed to require zoning ordinance consistency with

comprehensive plan

c. Euclidean zoning districts generally divide geographical areas into

multiple zones or districts. Established zones or districts include

“permitted uses” and “conditional uses.” Zoning ordinances generally do

not include exhaustive list of prohibited uses.

i. Zones or districts

“First, zoning ordinances typically divide a geographic area into

multiple zones or districts. ‘Zoning ordinances comprehensively

assign compatible land uses to zoning districts throughout the

community.’ ... The municipality is generally divided into different

districts, such as residential, commercial, and industrial.” Because

zoning ordinances typically carve a geographic area into multiple

districts, they often consist of both the text of the ordinance and a

map showing the districts.”

Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338 Wis. 2d

488, 506-07, 809 N.W.2d 362, 371


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“General zoning works by dividing the community into districts or

‘zones’ designated for different uses, such as residential,

commercial, industrial or agricultural use.”

Lynn Markham, Rebecca Roberts, Center for Land Use Education,

Zoning Board Handbook For Wisconsin Zoning Boards of

Adjustment and Appeals, 6 (2nd

ed. 2006) available at

http://www.uwsp.edu/cnr-

ap/clue/Documents/ZoningHandbook/Zoning_Board_Handbook.p

df

ii. Permitted uses

“Second, within the established districts or zones, certain uses are

typically allowed as of right and certain uses are prohibited by

virtue of not being included in the list of permissive uses for a

district. ‘In general, zoning ordinances provide landowners with

permitted uses, which allow a landowner to use his or her land, in

said manner, as of right.’”


488, 507, 809 N.W.2d 362, 371

“Permitted uses are allowed as a matter of right in all locations in a

zoning district and may be authorized by the zoning administrator

or building inspector with a simple permit. Authorization is non-

discretionary provided the project complies with general standards

for the zoning district, any overlay district or design standards, and

related building or construction codes.”







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iii. Conditional uses

“It has become increasingly common for zoning ordinances to

allow for uses that are conditionally permitted, which gives local

officials the power to make decisions on an individual, ad hoc

basis. Today, most zoning ordinances contain a combination of

permitted uses and conditionally permitted uses.”


488, 509-10, 809 N.W.2d 362, 372

http://www.uwsp.edu/cnr-ap/clue/Documents/ZoningHandbook/Zoning_Board_Handbook.pdf







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“Conditional Use – A use listed in the zoning ordinance that may

be allowed if found to be compatible with neighboring uses,

limitations of the site, and the purposes of the ordinance.

Conditions may also be attached upon approval.”







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iv. Accessory uses

“An accessory use must be subordinate or incidental to the

principal use.”

Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use

Planning and Development Regulation Law, 585-86 (2d ed. 2007).

“[W]hether a use of land is permitted as an accessory use, it is not

enough to determine whether that use is incidental to the main use;

the use must be habitually, commonly, and by long practice

established as a reasonable use. Factors to consider are: size of the

lot in question; nature of the primary use; use made of adjacent

lots; economic structure of the area; and the actual incidents of

similar use in the area.”

Town of Avon v. Oliver, 2002 WI App 97, 253 Wis. 2d 647, 661,

644 N.W.2d 260, 267 quoting 83 Am.Jur.2d Zoning and Planning

§ 224 (1992).

v. Legal non-conforming uses, structures, and parcels

“A nonconforming use is a use of land for a purpose not permitted

in the district in which the land is situated Land use qualifies as

‘nonconforming’ if there is an active and actual use of the land and

buildings which existed prior to the commencement of the zoning

ordinance and which has continued in the same or a related use

until the present.

Waukesha Cnty. v. Seitz, 140 Wis. 2d 111, 114-15, 409 N.W.2d

403, 405 (Ct. App. 1987) (internal citations omitted).





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The property owner bears the burden to prove by a preponderance

of the evidence that the nonconforming use was in existence at the

time that the ordinance was passed. This burden also requires the

property owner to show that the use was “so active and actual that

it can be said he [or she] has acquired a ‘vested interest’ in its

continuance.”



If the use is characterized as merely casual and occasional or

accessory or incidental to the principal use, then the use does not

acquire a nonconforming status.”



Property owners who were aware of pending ordinance prohibiting

use at the time it introduced the use did not have a vested interest

in continuing the use.

Town of Cross Plains v. Kitt's Field of Dreams Korner, Inc., 2009

WI App 142, 321 Wis. 2d 671, 775 N.W.2d 283

d. Impact of modern Euclidean zoning on urban agriculture

i. Directly limited urban agriculture by limiting permissible uses

1. Agriculture seldom expressly permitted outside agricultural

zones.

“As a practical matter, homeowners do not need municipal

zoning allowances for small-scale gardening; planting

vegetables, fruit, or flowers is generally a permissible land

use. However, when gardening is improperly located on a

lot or begins to consume the majority of the property, the

agricultural activity may become subject to land use

regulations.”

Stephanie A. Maloney, Putting Paradise in the Parking

Lot: Using Zoning to Promote Urban Agriculture, 88 Notre

Dame L.Rev. 2551 (2013).


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ii. Indirectly hindered urban agriculture through various

restrictions:

1. Building height limitations

2. Restrictions on types and number of accessory structures

such as sheds, greenhouses, hoop houses, fences, etc.

3. Side yard setbacks

4. Lot size restrictions

5. Restrictions on home businesses

6. Restrictions on types and number of animals

iii. Created significant risk for property owners interested in

anything more than small-scale accessory agricultural uses outside

agricultural zones.

“[B]ecause zoning laws are created at the community level

and require a certain level of specificity, regulations can

become so complicated that it is difficult for urban farmers

to understand what conduct is acceptable.”

Susanne A. Heckler, A Right to Farm in the City: Providing

a Legal Framework for Legitimizing Urban Farming in

American Cities, 47 Val U.L.Rev. 217, 254 (2012).

Zoning ordinances presumed valid. Challenge to zoning

ordinance must meet standard beyond a reasonable doubt.

Town of Rhine v. Bizzell, 2008 WI 76, 311 Wis. 2d 1, 20,

751 N.W.2d 780, 790

iv. (In theory) reduced number of nuisance lawsuits by resolving

land use conflicts in advance by limiting permissible uses.

1. Zoning ordinances permitting urban agriculture may not

preclude private nuisance actions or common law public

nuisance actions

“[Z]oning ordinances have the ability to regulate and

restrict urban farming, but zoning regulations cannot

provide any assurance to a farmer that they will not be sued

for nuisance.”

Susanne A. Heckler, A Right to Farm in the City: Providing

a Legal Framework for Legitimizing Urban Farming in

American Cities, 47 Val U.L.Rev. 217, 254 (2012).

“A land use may comply with the local zoning ordinance

and other relevant regulations, but still constitute a


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nuisance because of the conditions or manner of operation

of the use.” 66 C.J.S. Nuisances § 30 (2011).

e. Additional ordinances that may impact urban agriculture

i. Animal control

ii. Public health

iii. Erosion control

iv. Noise

v. Licensing

vi. Building code

vii. Stormwater

viii. Property Maintenance

ix. Trees & Vegetation

III. “URBAN AGRICULTURE” DEFINED

a. Do your ordinances define “agricultural use” or “urban agriculture?”

i. Madison, WI Code of Ordinances § 28.211 Definitions

Agriculture, Animal Husbandry. All operations primarily oriented

to the on-site raising and/or use of animals, at an intensity of less

than one animal unit per acre. Fish farms are considered animal

husbandry land uses.

Agriculture, Cultivation. The use of land for growing or producing

field crops, including field crops for consumption by animals

located off-site or for tree farming or nursery operations.

Agriculture, Intensive. All operations primarily oriented to the on-

site raising and/or use of animals at an intensity equal to or

exceeding one (1) animal unit per acre, or agricultural activities

requiring large investments in permanent structures.

(a) To calculate number of animal units, use the most

current Animal Units Calculation Worksheet of the

Department of Natural Resources. This worksheet is

used to determine whether an operation will reach or

exceed one thousand (1,000) animal units, in which

case a WPDES permit is required under Wis. Admin.

Code ch. NR 243


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b. “Agricultural Use” defined by statute:

i. § 66.0721(1)(a)

(a) “Agricultural use” has the meaning given in s. 91.01(2) and

includes any additional agricultural uses of land, as determined by

the town sanitary district or town.

ii. § 91.01(2)

(2) “Agricultural use” means any of the following:

(a) Any of the following activities conducted for the purpose of

producing an income or livelihood:

1. Crop or forage production.

2. Keeping livestock.

3. Beekeeping.

4. Nursery, sod, or Christmas tree production.

4m. Floriculture.

5. Aquaculture.

6. Fur farming.

7. Forest management.

8. Enrolling land in a federal agricultural commodity

payment program or a federal or state agricultural land

conservation payment program.

(b) Any other use that the department, by rule, identifies as an

agricultural use.

c. Urban Agriculture is: “an umbrella term that describes a range of food-

growing practices, from backyard gardens to urban farms” including home

gardens, community gardens, backyard animal keeping, and urban farms.

HEATHER WOOTEN & AMY ACKERMAN, NAT’L POLICY & LEGAL

ANALYSIS NETWORK TO PREVENT CHILDHOOD OBESITY & CHANGELAB

SOLUTIONS, SEEDING THE CITY: LAND USE POLICIES TO PROMOTE URBAN

AGRICULTURE 5 (MAY 2013), available at

http://changelabsolutions.org/sites/default/files/Urban_Ag_SeedingTheCit

y_FINAL_(CLS_20120530)_20111021_0.pdf

i. Urban agriculture is: ‘an industry located within or on the fringes

of a town, a city or a metropolis which grows and raises, processes

and distributes a diversity of food and non-food products, (re)using

largely human and material resources, products and services found

in and around that urban area, and in turn supplying human and


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materials resources, products and services largely to that urban

area.’ It includes community and private gardens, fruit trees, food-

producing green roofs, aquaculture, farmers markets, small-scale

farming, beekeeping, and food composting.

Michael Broadway, Growing Urban Agriculture in North American

Cities: The Example of Milwaukee, 52 FOCUS ON GEOGRPAHY 23, 23

(2009)

ii. Urban agriculture is: a complex system encompassing a spectrum

of interests, from a traditional core of activities associated with

production, processing, marketing, distribution, and consumption,

to a multiplicity of other benefits and services that are less widely

acknowledged and documented. These include recreation and

leisure activities, economic vitality and business entrepreneurship,

individual health and well-being, community health and well-

being, landscape beautification, and environmental restoration and

remediation.

COUNCIL FOR AGRICULTURE SCIENCE & TECHNOLOGY TASK FORCE

REPORT NO. 138, URBAN AND AGRICULTURAL COMMUNITIES:

OPPORTUNITIES FOR COMMON GROUND 14 (2002).

iii. Urban agriculture is: a network of cultivation spaces and

production activities in which food is produced by and for the local

community and around which city government and administrative

departments, the private sector, non-profit coalitions and

neighborhood groups are involved in order to expand, support and

integrate these activities into the life of the city.

Kathryn J.A. Colasanti, Growing Food in the City: Two Approaches

to Explopring Sealing up Urban Agriculture in Detroit (2009)

(Michigan State University M.S. Thesis).

IV. POSSIBLE BENEFITS ASSOCIATED WITH URBAN AGRICULTURE

a. Access to fresh, healthy, and nutritious food – addresses problem of “food

deserts.”

b. Food safety and food security

c. Sustainability

d. Green space

e. Improved use of abandoned or underutilized urban space

i. Sometimes associated with increase in crimes such as drug use,

prostitution, and arson

f. Increased property values

g. Increased sense of community


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h. Reduced environmental impact associated with longer range food

distribution

i. Increased infiltration of storm water run-off

j. Decreases erosion and topsoil removal

k. Improves air quality

V. POSSIBLE PROBLEMS ASSOCIATED WITH URBAN AGRICULTURE

a. Noise

b. Odors

c. Agriculture Use Assessment (Abuse)

d. Abandoned animals

e. Pesticides, animal waste, fertilizer runoff and other environmental

concerns

i. Proximity to environmental contamination

f. Reduced property values

g. Transmission of zoonotic diseases

VI. LAND USE POLICIES TO PERMIT OR PROMOTE URBAN

AGRICULTURE

a. Changes to comprehensive plans may be necessary because

ordinances must be consistent with comprehensive plans. Wis. Stat. §

66.1001(3):

(3) Ordinances that must be consistent with comprehensive

plans. Except as provided in sub. (3m), beginning on January 1,

2010, if a local governmental unit enacts or amends any of the

following ordinances, the ordinance shall be consistent with that

local governmental unit's comprehensive plan:

(g) Official mapping ordinances enacted or amended under

s. 62.23(6).

(h) Local subdivision ordinances enacted or amended under

s. 236.45 or 236.46.

(j) County zoning ordinances enacted or amended under s.

59.69.

(k) City or village zoning ordinances enacted or amended

under s. 62.23(7).

(L) Town zoning ordinances enacted or amended under s.

60.61 or 60.62.


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(q) Shorelands or wetlands in shorelands zoning ordinances

enacted or amended under s. 59.692, 61.351, 61.353,

62.231, or 62.233.

i. “Consistent with” means furthers or does not contradict the

objectives, goals, and policies contained in the comprehensive

plan. Wis. Stat. § 66.1001(a)(am)

b. Comprehensive Plans and zoning ordinances designed to

accommodate Urban Agriculture should include or consider the

following:1

i. What policy goals are furthered by permitting certain urban

agricultural uses?

ii. What types of urban agriculture the community wishes to permit or

promote

iii. What locations are most/least appropriate for different urban

agricultural uses?

iv. Should urban agriculture be a permitted use or a conditional use?

1. Conditional use permit conditions

2. Require farm management plans? (Madison, WI)

v. What operating standards should be placed on urban agriculture

activities?

1. On site sales permitted?

vi. Identify lot size restrictions

vii. Identify locations with environmental contamination or similar

concerns

1. Soil testing requirements

viii. Identify ways to address possible run-off and soil erosion issues

ix. Restrictions or exemptions for structures

Municipal Code of Chicago § 17-9-0103.5-B

1 For model comprehensive plan language and zoning language for urban agriculture please see

http://changelabsolutions.org/sites/default/files/Urban_Ag_SeedingTheCity_FINAL_%28CLS_20120530%

29_20111021_0.pdf

http://changelabsolutions.org/sites/default/files/Urban_Ag_SeedingTheCity_FINAL_%28CLS_20120530%29_20111021_0.pdf

http://changelabsolutions.org/sites/default/files/Urban_Ag_SeedingTheCity_FINAL_%28CLS_20120530%29_20111021_0.pdf


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Accessory buildings, such as sheds, greenhouses, hoophouses or

farmstands shall comply with the requirements of 17-9-0201-D.

Hoophouses or other fabric based shelters, which are not required

to obtain a building permit shall not be considered accessory

buildings. Hoophouses or other fabric based shelters shall be

securely attached to the ground and designed and constructed to

comply with appropriate standards in Title 13 of the Municipal

Code of Chicago.

x. Restrictions or exemptions for signage

VII. TYPES OF URBAN AGRICULTURE

a. Home gardens

City of Orlando Code of Ordinances § 60.223(a)(2)

Front Yard. At least 40% of the pervious area of the front and street

sideyards shall be landscaped with shrubs and groundcovers, or a

combination thereof. The remainder may be planted with turfgrass,

annuals and vegetable gardens, up to a maximum of 60%.

b. Community gardens2

i. Model ordinances3

1. Open space protections for community gardens

2. Use zone protections for community gardens

ii. Identifying appropriate locations for community gardens

1. Identify previous use(s) and possible contaminants

2. Obtain soil samples & interpret results

3. Identify risks

a. Higher risk uses may require more rigorous

sampling.

4. Perform necessary cleanup & other mitigation

iii. Community Garden defined

2 See the EPA’s interim guidelines for Safe Gardening Practices on brownfield sites available at

http://www.epa.gov/swerosps/bf/urbanag/pdf/bf_urban_ag.pdf 3Model comprehensive plan and model zoning ordinances are Available at

http://changelabsolutions.org/sites/phlpnet.org/files/CommunityGardenPolicy_FINAL_Updated_100608.pd

f

http://www.epa.gov/swerosps/bf/urbanag/pdf/bf_urban_ag.pdf

http://changelabsolutions.org/sites/phlpnet.org/files/CommunityGardenPolicy_FINAL_Updated_100608.pdf

http://changelabsolutions.org/sites/phlpnet.org/files/CommunityGardenPolicy_FINAL_Updated_100608.pdf


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Madison, WI Code of Ordinances § 28.211

Community Garden. An area of land or space managed and

maintained by a group of individuals to grow and harvest food

crops and/or non-food, ornamental crops, such as flowers, for

personal or group use, consumption or donation. Community

gardens may be divided into separate plots for cultivation by one

or more individuals or may be farmed collectively by members of

the group and may include common areas maintained and used by

group members.

iv. Size limitations

Municipal Code of Chicago § 17-9-0103.5-A

Community gardens shall not be larger than 25,000 square feet,

except in POS districts. There is no size limit for community

gardens in the POS1 and POS2 districts

v. Limitations on composting

Municipal Code of Chicago § 17-9-0103.5-C

Composting is limited only to the materials generated on site, and

must be used on site, and must otherwise comply with the

standards of Section 7-28-715 of the Municipal Code.

Note: § 7-28-715 of Chicago’s municipal code is the portion of

Chicago’s “health nuisances” chapter dealing with composting

standards.

vi. If located on government property, must meet ADA accessibility

standards

vii. Limitations on product sales

Municipal Code of Chicago § 17-9-0103.5-D

Sales on site are limited to incidental sales of plants or produce

generated on site.

viii. Financing and acquiring land

1. No fee when using tax-forfeited land (Minneapolis)

2. Create nonprofit, possibly with other government entities to

acquire land or maintain community gardens (Chicago)


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3. Use federal community development block grant funds to

support community gardens (Madison)

4. Use land trusts to acquire and preserve community gardens

(Boston, Philadelphia, New York)

ix. Program operated by City (Portland, Sacramento, Palo Alto)

x. Run-off & erosion concerns

xi. Advisory committee on Community Gardens (See Madison

Ordinance § 33.12)

c. Urban Farms

i. Defined

City of Detroit4

“A zoning lot, as defined in this article, over one acre, used to

grow and harvest food crops and/or non-food crops for personal or

group use. An orchard or tree farm that is a principal use is

considered an urban farm. An urban farm may be divided into

plots for cultivation by one or more individuals and/or groups

collectively. The products of an urban farm may or may not be for

commercial purposes.”

d. Rooftop farms (Chicago)

i. Reduces “urban heat island effect”

ii. Business licenses/on site sales?

iii. Building permits for structures

e. Backyard animals

i. See Larson presentation

f. Bees

i. Fences

Salt Lake City Code of Ordinances § 8.10.060

8.10.060: FLYWAYS:

4 City of Detroit urban agriculture ordinance is available at

http://www.detroitmi.gov/Portals/0/docs/legislative/cpc/pdf/Urban%20Ag%20Ordinance%20Abridged_Ap

r2013.pdf


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A hive shall be placed on property so the general flight pattern of

bees is in a direction that will deter bee contact with humans and

domesticated animals. If any portion of a hive is located within

fifteen feet (15') from an area which provides public access or from

a property line on the lot where an apiary is located, as measured

from the nearest point on the hive to the property line, a flyway

barrier at least six feet (6') in height shall be established and

maintained around the hive except as needed to allow access. Such

flyway, if located along the property line or within five feet (5') of

the property line, shall consist of a solid wall, fence, dense

vegetation, or a combination thereof, which extends at least ten

feet (10') beyond the hive in each direction so that bees are forced

to fly to an elevation of at least six feet (6') above ground level

over property lines in the vicinity of the apiary

ii. Water


8.10.070: WATER:

Each beekeeper shall ensure that a convenient source of water is

available to the colony continuously between March 1 and October

31 of each year. The water shall be in a location that minimizes

any nuisance created by bees seeking water on neighboring

property

iii. Swarm control

iv. Hive restrictions


8.10.050: HIVES:

A. Honeybee colonies shall be kept in hives with removable

frames which shall be kept in sound and usable condition.

B. Hives shall be placed at least five feet (5') from any property

line and six inches (6") above the ground, as measured from

the ground to the lowest portion of the hive; provided,

however, that this requirement may be waived in writing by the

adjoining property owner.


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C. Hives shall be operated and maintained as provided in the Utah

bee inspection act.

D. Each hive shall be conspicuously marked with the owner's

name, address, telephone number, and state registration

number.

v. Restricted to back yards

vi. Other safety measures

vii. Applicability of existing nuisance ordinances


8.10.020: CERTAIN CONDUCT UNLAWFUL:

Notwithstanding compliance with the various requirements of this

chapter, it shall be unlawful for any person to maintain an apiary or

to keep any colony on any property in a manner that threatens

public health or safety, or creates a nuisance.

g. Hydroponic/Aquaculture/Aquaponic farming

i. Hydroponic defined

City of Detroit5

“A method of growing plants without soil, using mineral nutrient

solutions or water, or in an inert medium such as perlite, gravel, or

mineral wool.

ii. Aquaculture defined

City of Detroit

“The cultivation of marine or freshwater food fish, shellfish, or

plants under controlled conditions

iii. Aquaponics defined

City of Detroit

5 City of Detroit urban agriculture ordinance is available at

http://www.detroitmi.gov/Portals/0/docs/legislative/cpc/pdf/Urban%20Ag%20Ordinance%20Abridged_Ap

r2013.pdf


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“The integration of aquaculture with hydroponics, in which the

waste products from fish are treated and then used to fertilize

hydroponically growing plants.”

iv. May involve

1. Zoning review

2. Building permit

h. Farmers’ Markets6

City of Stevens Point

LICENSE & PERMITS Sec. 12.02

12.02 PUBLIC SQUARE – FARMERS MARKET AND VENDING

AREA.

(1) There is hereby created and set aside that portion of the public square

as shown on the attached map and which shall be deemed the Farmers

Market and Public Vending area. This area shall be used exclusively for

farmers for the sale of farm produce and for the vending of other goods

and assorted products during the months of May, June, July, August,

September, and October of each year, between the hours of 4:00 A.M. and

5:00 P.M. of each day. The location and number of stalls shall be

determined by the City Clerk.

(2) The City Clerk’s office shall permit spaces to be used by vendors

pursuant to rules established by such office. Vending areas are established

as shown on the attached map. No motorized vehicles or large trailers are

allowed on the interior areas as shown on the attached map unless

approved by the City.

(3) Rules and regulations for sale of produce:

(a) Vendors spaces shall be reserved to the assigned vendor until

6:30 A.M. each day. All rights to the assigned space is forfeit for

that day in the event that the vendor has not arrived and occupied

the space by 6:30 A.M. A vendor space is not assignable by the

vendor.

(b) All produce must be grown within a 30 mile radius of Stevens

Point. Some exceptions may be made for Wisconsin grown

products not grown locally.

6 Model zoning ordinance and comprehensive plan language establishing farmers markets are available at

http://changelabsolutions.org/sites/default/files/From_the_Ground_Up-

Farmers_Markets_FINAL_20130415.pdf


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(c) Produce purchased at wholesale or retail from third parties

shall not be permitted except from other market vendors who sell

at this market. (The intent is to allow farmers to fill a void they

may have due to crop failure or a particular produce shortage, by

purchasing that produce from other vendors who sell at the Stevens

Point Farmers Market. Farmers are still expected to grow their own

produce.)

(d) All vendors shall clean daily, their respective stall area and

shall remove all debris and waste generated by their sales and shall

not deposit such waste in adjacent dumpsters.

(e) All vendors are prohibited from using tobacco products within

the vending area or reserved space.

(f) Vendors shall not engage in hawking, or use a radio or any

sound amplification device emitting sound within the vending area

or reserved space.

(g) Vendors shall not deposit produce or other items for sale in

any area which would impede or hinder pedestrian or handicap

traffic.

(h) Vendors shall not make any disparaging remarks concerning

other vendors or make any false representation concerning their

products.

(4) Penalty. Any vendor violating any provisions of this ordinance may

suffer a forfeiture of not less than $10 nor more than $100 and in addition

the City reserves the right to revoke such vendors right to occupy a space.

i. Farmstands

Douglas County

§ 3.6 A-1 Agricultural District

…

1. Permitted Uses

…

(d) Roadside stands for the sale of products grown on the premises, if

sufficient off-street parking space for customers is provided.

j. Restaurant farms


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VIII. PURSUING ENFORCEMENT ACTIONS AGAINST URBAN

AGRICULTURE

a. Urban Agriculture enforcement actions increasingly important

i. Increased volume of urban agricultural uses

ii. Pervasive agricultural use assessment abuse7

iii. Widespread encouragement of illegal urban agriculture as means to

effectuate change

Violating local zoning ordinances in support of local food

movement “is beneficial to the extent that it (1) acts as a catalyst

for change and innovation and (2) entices supporters of the local

food movement to actively participate in that movement.”

Sarah Schindler, Unpermitted Urban Agriculture: Transgressive

Actions, Changing Norms, and the Local Food Movement, Wis.

L.Rev. forthcoming (2014) Available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2414016

“DIY urbanist actions, even when illegal, strengthen civic values,

enhance community, and may serve to remedy deficits in existing

democratic processes.”

Celeste Pagano, DIY Urbanism: Property and Process in

Grassroots City Building, 97 Marq. L.Rev (2013) available at

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=5

192&context=mulr

b. Agricultural Use generally violates zoning ordinances unless Ag use is:

i. Expressly “permitted use”

ii. Permitted as conditional use, owner has received conditional use

permit, and use complies with conditions of conditional use permit

iii. Permissible accessory use

iv. A legal non-conforming use

c. Bringing Ag Use Zoning Code Enforcement Actions Preliminary

Issues

7 http://law.marquette.edu/facultyblog/2013/02/04/ending-agricultural-use-assessment-abuse/

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2414016

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=5192&context=mulr

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=5192&context=mulr

http://law.marquette.edu/facultyblog/2013/02/04/ending-agricultural-use-assessment-abuse/


21

i. Zoning Code enforcement notice requirements often very specific

1. Notice of violation may need to be in writing, by a specific

municipal official, with a specific time period to correct the

violation.

ii. Does your zoning code designate official(s) responsible for

enforcement?

1. Building Inspector

2. Zoning Administrator

3. Police Department

iii. Deciding method of enforcement

1. Citation or long form complaint

2. Equitable Relief

a. Not available in municipal court – injunction to

abate nuisance only available in circuit court.

d. Public Nuisance actions

i. Public nuisance-at-law. Continuous violation of zoning

ordinance is defined as public nuisance under most zoning

ordinances.

City of Eau Claire

18.11.240 Enforcement and penalties. Any violation of the

provisions of this chapter by any person shall be unlawful and shall

be referred to the municipal attorney who shall expeditiously

prosecute all such violators. A violator shall, upon conviction,

forfeit to the municipality a penalty of not less than $50 and not

more than $500, together with a taxable cost of such action. Each

day of continued violation shall constitute a separate offense.

Every violation of this chapter is a public nuisance and the creation

may be enjoined and the maintenance may be abated by action at

the suit of the municipality, the state, or any citizen thereof

pursuant to s. 87.30, Wis. Stats.

(emphasis added)


22

Repeated violations of municipal ordinances constitute a public

nuisance-at-law. State v. H. Samuels Co., Inc., 60 Wis. 2d 631,

639, 211 N.W.2d 417, 421 (1973).

Note: “Nuisance” is not defined in Wisconsin Statute Chapter 823

ii. Common law public nuisance

“Conduct which interferes with the use of a public place or with

the activities of an entire community is called a public nuisance.”

Schiro v. Oriental Realty Co., 272 Wis. 537, 546, 76 N.W.2d 355,

359 (1956)

1. Common law public nuisance actions are notoriously difficult:

“Nuisance” is “incapable of an exact and exhaustive definition

which will fit all cases.” Lindermey v. City of Milwaukee, 241

Wis. 637, 640, 6 N.W.2d 653, 655 (1942)

“It would be difficult to find a term which has been the subject

of more mystifying confusion of utterance in the reports and

texts.” Schiro v. Oriental Realty Co., 272 Wis. 537, 545, 76

N.W.2d 355, 359 (1956)

2. Wisconsin courts sometimes look to the Restatement (Second)

of Torts when interpreting nuisance law. See Milwaukee Metro

Sewerage Dist., 2005 WI 8, ¶ 25 n.4, 277 Wis. 2d 635, 691

N.W.2d 658.

iii. Where public nuisance is defined by ordinance, courts must

apply ordinance definition, not common law definition of “public

nuisance.”

Here, the circuit court erred because it did not apply the definition

of “public nuisance” as stated in the Town of Rhine's ordinance.

Instead of applying the ordinance language, the circuit court

applied a common-law definition of “nuisance.”

Town of Rhine v. Bizzell, 2008 WI 76, 311 Wis. 2d 1, 46-47, 751

N.W.2d 780, 803

iv. Common Law Public Nuisance in Agricultural use context

1. Courts examine various factors:


23

Therefore, we reverse the court of appeals. The law in

Wisconsin on public nuisance is not governed solely by the

number of people affected. The number of people affected is

only one of several criteria in Wisconsin's rule of public

nuisance. Others referred to in this decision are the location of

the operation or property; the degree or character of the injury

inflicted or the right impinged upon; the reasonableness of the

use of the property; the nature of the business maintained; the

proximity of dwellings to the business; and the nature of the

surrounding neighborhood or community. It is for the trier of

fact to apply the evidence received to the criteria to be

considered in determining whether a public nuisance is present.

That evidence, depending on the circumstances of the case,

may prove one or all of the criteria or a combination of the

criteria, but with varying degrees of severity in each.

State v. Quality Egg Farm, Inc., 104 Wis. 2d 506, 520-21, 311

N.W.2d 650, 657-58 (1981)

v. Distinction between public nuisance and private nuisance

actions:

A public nuisance is one that affects the

public generally and the lawsuit to abate the

nuisance is usually brought by a

governmental unit. A private nuisance is an

interference with the use of nearby real

property and the lawsuit to abate the nuisance

is brought by an individual with an ownership

interest in the affected property. WIS.

LEGISLATIVE COUNCIL, LEGAL

MEMORANDUM NO. LM-2000-12,

WISCONSIN’S RIGHT-TO FARM LAW 2 (2000)

e. Agricultural use assessment abuse enforcement actions

i. Do local ordinances permit (primary) agricultural use?

1. If no – violation of zoning ordinance and usually public

nuisance at law.

2. Zoning ordinances “presumed valid and must be liberally

construed in favor of the municipality.” Town of Rhine v.

Bizzel, 2008 WI 76, ¶ 26, 311 Wis. 2d 1, 751 N.W.2d 780.

ii. Zoning violation is not sufficient reason for assessor to deny an

agricultural use assessment:


24

“It is not necessary for a parcel to be zoned as agricultural

in order to be classified as agricultural for assessment

purposes. Municipal zoning is not an adequate reason to

deny the agricultural classification. Determination of

agricultural status is based solely on whether use of the

parcel is agricultural in nature.”

Wisconsin Property Assessment Manual at 360, available at

http://www.revenue.wi.gov/slf/wpam/wpam.pdf

“State statutes supersede local ordinances, and therefore,

this land would require classification as agricultural land,

because it meets the definition of agricultural land under

Chapter Tax 18. Enforcement of the ordinance would be a

municipal decision; once the land is no longer being used

for agricultural purposes, either through enforcement of the

ordinance or the land owner’s choice, the classification

should be changed from agricultural to another

classification. If land was devoted primarily to a qualifying

agricultural use under Tax. 18.05(1) during the prior

production season and was compatible with agricultural use

on January 1 of the current assessment year, even if in

violation of ordinance, easement, or contract, the land must

be classified as ag land for the current assessment year.

The ag classification would apply until such time that the

land is no longer devoted primarily to a qualifying

agricultural use.”

(emphasis added).

Use-Value Assessment Frequently Asked Questions –

Wisconsin Department of Revenue” available at

http://www.revenue.wi.gov/faqs/slf/useassmt.html

iii. Minimum/Maximum per day forfeiture

1. “[C]ourt can and should exercise its discretion within those

limits but cannot impose forfeitures either above or below

those limitations.” State v. City of Monona, 63 Wis. 2d 67,

216 N.W.2d 230 (1974); see also Village of Sister Bay v.

Hockers, 106 Wis. 2d 474, 479, 317 N.W.2d 505 (“When a

[municipal] legislative body, acting within its authority,

sets minimum and maximum forfeitures, the court has no

authority to impose less than the minimum forfeiture.”).

http://www.revenue.wi.gov/slf/wpam/wpam.pdf


25

To impose forfeiture below minimum or above the

maximum “is beyond [the court’s] permissible discretion

and a forfeiture imposed either above or below the statutory

limits is void.” City of Monona, 63 Wis. 2d 67, 72, 216

N.W.2d 230 (1974)

2. But see Wis. Stat. § 800.095(4) (4) “The court may, at any

time, authorize payment of the monetary judgment by

installment payments, or may modify, suspend, or

permanently stay the monetary judgment, or order that the

judgment be satisfied by community service.”

Note: Statute authorizes municipal courts to modify

judgments “at any time” not “for any reason.” Court

should articulate basis for modification (i.e. excessive,

indigency, etc.).

iv. Injunction against agricultural use

1. “[U]pon the determination of an ordinance violation, the

proper procedure for a circuit court is to grant the injunction,

except when it is presented with compelling equitable

reasons to deny it.” Village of Hobart v. Brown County,

2005 WI 78, ¶ 34, 281 Wis. 2d 628, 698 N.W.2d 83 citing

Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715

2. Does defendant have unclean hands?

a. Did the defendant request zoning amendment?

b. Did the defendant knowingly violate local

ordinances?

3. Municipal Assessors decision to classify agricultural use

does not estop municipality from enforcing zoning

ordinances.

a. A municipality cannot be estopped from asserting a

violation and seeking to enforce its ordinances.

Snyder v. Waukesha Cnty. Zoning Bd. of

Adjustment, 74 Wis. 2d 468, 477, 247 N.W.2d 98,

103 (1976) (Mere statements or assurances of the

building inspector cannot confer a right to violate

zoning ordinance).

v. Wisconsin’s Right to Farm law - Wis. Stat. § 823.08


26

1. Limits some private nuisance remedies; it does not

similarly limit public nuisance actions

§ 823.08(1):

(1) Legislative purpose. The legislature finds that

development in rural areas and changes in agricultural

technology, practices and scale of operation have

increasingly tended to create conflicts between agricultural

and other uses of land. The legislature believes that, to the

extent possible consistent with good public policy, the law

should not hamper agricultural production or the use of

modern agricultural technology. The legislature therefore

deems it in the best interest of the state to establish limits

on the remedies available in those conflicts which reach the

judicial system. The legislature further asserts its belief that

local units of government, through the exercise of their

zoning power, can best prevent such conflicts from arising

in the future, and the legislature urges local units of

government to use their zoning power accordingly.

(emphasis added)

“Finally, although the state’s Right to Farm Law

significantly limits private nuisance actions against

agricultural operations, it does not similarly limit public

nuisance actions.” Brigid W. Massaro, Navigating the

“Impenetrable Jungle”: Statutory Limits on Wisconsin

Public Nuisance Actions, 90 MARQ. L.REV 95, 110 (2006).

“Section 823.08, Stats., appears to apply only to litigation

regarding private nuisances, although this is not expressly

stated in the statute” WIS. LEGISLATIVE COUNCIL, LEGAL

MEMORANDUM NO. LM-2000-12, WISCONSIN’S RIGHT-TO

FARM LAW 2 (2000)

2. The purpose of Right-to-Farm Laws is to codify the

“coming to the nuisance” defense which is generally only

available in private nuisance actions:

“[Right-to-Farm] statutes, in various degrees, attempt to

codify the “coming to the nuisance” defense in situations

where the challenge comes from landowners who have

moved into a heretofore agricultural area but who object to

various, often inherent, aspects of agricultural operations,


27

such as odor, noise, or machinery uses that seem to be

threatening to a more urban lifestyle.”

Julian Conrad Juergensmeyer & Thomas E. Roberts, Land

Use Planning and Development Regulation Law, 585-86

(2d ed. 2007).

3. In codifying the “coming to the nuisance” defense, Wis. Stat.

§ 823.08 includes language which demonstrates applicability

only to private nuisance actions:

(3) NUISANCE ACTIONS. (a) An agricultural use or an

agricultural practice may not be found to be a nuisance if

all of the following apply:

1. The agricultural use or agricultural practice alleged to be

a nuisance is conducted on, or on a public right−of−way

adjacent to, land that was in agricultural use without

substantial interruption before the plaintiff began the use of

property that the plaintiff alleges was interfered with by the

agricultural use or agricultural practice.

2. The agricultural use or agricultural practice does not

present a substantial threat to public health or safety.

(emphasis added)

vi. Conversion charge

Property that has benefited from agricultural classification and use-

value assessment may be subject to a conversion charge when the

use is converted to a residential, commercial, or manufacturing

use, or becomes exempt and the use is no longer agricultural.

Guide to Estimating Charge for Conversion of Agricultural Land

available at http://www.revenue.wi.gov/slf/useval/uvinst.pdf

http://www.revenue.wi.gov/slf/useval/uvinst.pdf

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