Urban Farming and the Law: A Q&A with Great Lakes Environmental Law Center’s Nick Leonard
August 17, 2015 | Trish Popovitch
Nick Leonard is an environmental law attorney currently serving a fellowship at the Great Lakes Environmental Law Center. Operating in Detroit since 2008, Leonard is an expert on the legalities of urban farming in Detroit and the surrounding region. Working pro bono, Leonard provides legal advice to individuals, organizations and businesses involved in urban agriculture. Leonard addresses some of the legal questions of urban farmers in Detroit and other cities.
What is the most frequent legal question you hear when it comes to urban farms?
Many of Detroit’s farmers and gardeners have been operating on their current site pursuant to a real property license agreement with the City of Detroit. [This is a common arrangement in cities]. Unfortunately, real property license agreements provide very little security for the license holder as they can essentially be terminated at any time. Many urban farmers and gardeners are very interested in how they can legally obtain a secure interest in their farm property and what they must do to comply with all continuing real property obligations, like maintaining the property in accordance with local property maintenance laws.
Can I have volunteer labor on my for-profit urban farm? Can family volunteer?
The answer is generally no, a for-profit farm cannot legally utilize volunteer labor to help operate the farm. Whether someone is an employee or a volunteer rests entirely on legal definitions rather than what you and your worker agree to. If the law says your worker is an employee, the farmer and the worker cannot contract around that definition. Many for-profit businesses utilize volunteers in some fashion at some point. However, if an urban farm utilizes volunteers it’s important to realize the risk involved in doing so and to think about ways to minimize their risks. One way to minimize risks is to have very close relationships with your volunteers.
Would I have less liability if I use raised beds rather than in-ground planting for urban farming?
There isn’t necessarily less liability involved in using raised beds, but there is a lower risk of potential liability. Whether a farmer or gardener uses raised beds or not, if someone gets sick because of something they were exposed to on the farm or garden then there is a chance that the farmer or gardener will be found liable for the harm done. However, if properly constructed and maintained, raised beds do limit exposure pathways for farms and gardens that are operated on sites that have some degree of soil contamination.
What would I do if a customer claimed they got sick from my produce?
If someone claims they got sick from your produce, you should do your best to resolve the potential conflict before it grows into something much larger and becomes much more expensive. You should also analyze your farm and its processing and storage practices to see if there are potential points of contamination that could be more effectively controlled. A farmer or gardener is prohibited from selling or distributing unsafe food by both state and federal food safety laws.
What about liability issues with volunteers? Should I have them sign a waiver or do I legally have to have worker’s compensation insurance?
In general, many nonprofit organizations will heavily rely on volunteers to operate their urban farm or garden. Many of the volunteers won’t have worked on an urban farm or garden before which may make it more likely that they will accidentally hurt themselves or others. While a nonprofit is not required to obtain worker’s compensation insurance for its volunteers, a well-drafted waiver of liability that is signed by each volunteer can effectively limit a nonprofit organization’s liability for volunteer injuries. However, in Michigan nonprofits should be aware that there are unique rules that govern children and waiver of liability agreements that typically make such agreements unenforceable.
Does the inclusion of greenhouses, storage sheds or even farm stands make the process of getting permission for an urban farm much more complicated?
No. Greenhouses, storage sheds, and farm stands are all regarded as accessory structures that are [typically] allowable on an urban farm or garden. However, a farmer or gardener may have to obtain a building permit from a city before constructing any of the accessory structures permitted on an urban farm or garden.
What about utility or city easements? Can the city come along and dig up my farm?
Generally yes. When purchasing property, it’s important to be fully aware of the interests that another may have in that same property and to plan accordingly. If a utility company has an easement for an underground utility line, it will be important to take that into account when planning an urban farm as the utility company, as the easement holder, has the right to maintain that easement. This may include digging up your property to repair a faulty utility line.
What bearing does the Food Safety Modernization Act have on urban farms?
As part of the implementation of the FSMA, the FDA has proposed the Produce Rule and the Preventive Control Rule. The Produce Rule applies to the growing, harvesting, packing, and holding of produce. However, most urban farms and gardens will be eligible for a qualified exemption. However, the qualified exemption is not a complete exemption. A farm with that is eligible for the qualified exemption must still comply with requirements regarding labeling and point of purchase identification. The Preventive Control Rule applies to a farm that must be a registered facility under the Food, Drug, and Cosmetic Act. However, farms are generally exempt from the facility registration requirement and, therefore, may be exempt from the Preventive Control Rule.
What is the number one piece of legal advice you give to urban farmers?
The law can be very daunting for an urban farmer or gardener. The last thing many urban farmers thought of when they started was whether their operations were fully legal. The laws impacting an urban farm or garden vary depending on the project. If it’s a start-up urban farm, the laws regarding how to start a nonprofit or a for-profit entity are very important. At the end of the day, my job isn’t to tell urban farmers what to do. My job is to help them understand what the law requires and how what they’re doing may be impacted by the law. After an urban farmer understands those two points, I can help them come up with a plan that will allow them to operate their farm or garden while knowing the legal risks that may be involved.
Need more help understanding the laws? Read more of Leonard’s advice here.