Anarchy in the Pumpkin Patch

I am a scofflaw gardener.

I just learned this today while searching for chickens in our City Zoning Code.

Why chickens? Because I would love to have a few. When I was a girl, my grandparents kept chickens on their farm (yes, I know, it was a farm) and I still have strong memories of feeding the hens and gathering the eggs.

A growing number of urban areas permit residents to keep chickens in their backyards, with some limitations on flock size and gender. Last week, when David and Vinnie came to dinner, we started talking about urban chickens. Vinnie is City Planner for Columbus, just down the road. There it is a health district issue (you need a permit), not a zoning one, so Columbus allows personal urban flocks.

I was pretty sure that Delaware had an ordinance against keeping "farm animals" in residential districts. Vinnie used to be Delaware's Planning Director and said he thought I was right.

This morning, meaning to blog about urban chickens, I started looking through our zoning code.

Note: I am a retired lawyer; my license is on inactive status with the Ohio Supreme Court. While recovering from my stem cell transplants four years ago, I made the decision that returning to practice, as much as I enjoyed it, was probably not a healthy thing to do. So I parked the license. But the training remains. And one of my specialties when I practiced was zoning law, so reading through Delaware's zoning code is a romp in the park for me.

I started to look through the zoning code for the elusive urban chicken. As I remembered, chickens are indeed not allowed in residential districts.

As it turns out, neither are vegetable gardens.

The way you read and interpret a zoning code is this. First, you look at permitted uses in a given zoning classification. In this case, we are talking about a residential (houses, apartments) zoning classification. I think this house is zoned R-3, but the zoning map on the city website lacks a legend explaining the colors, so I am not sure. Rest assured, regardless of the level, this house is zoned Residential ("R").

Chapter 1134 of the Delaware Zoning Code ("ZC" hereafter) contains the Residential District Regulations. ZC 1134.02 sets out Permitted Uses. In zoning law, a Permitted Use is exactly what it sounds like: it is something you are permitted to do on your property. Some uses are "principal" (allowed outright), some are "conditional" (allowed with limitations).

Permitted uses are often listed broadly. Zoning codes do not contain a laundry list of every permitted use but speak to such general categories as churches, single-family residences, and professional offices. ZC 1134.02 contains a handy chart of permitted uses within the various residential classifications.

Chapter 1134 also contains the regulations for the A-1 classification, which is Agricultural. On the chart in ZC 1134.02, Agricultural uses are only permitted in an A-1 district and not in any R districts.

And this is where I crossed the line from law-abiding citizen to scofflaw.

Zoning is definition driven. In Delaware, Chapter 1121 controls the definitions. ZC 1121.02(B)(5) defines "agriculture" as follows:

"Agriculture" means the production, keeping or maintenance, for sale, lease or personal use, of plants and/or animals useful to humans, including but not limited to: forages and crops; dairy, poultry and livestock including products breeding and grazing thereof; trees and forest products; or lands devoted to a soil conservation of forestry management program.

The words "crops" and "plants" are not otherwise defined in section (B). ZC 1121.02(A) takes care of that: "Words used in this ordinance are used in their ordinary English usage."

Uh oh. No matter how many dictionaries I consult, I cannot come up with any construction of the words "crops" or "plants," let alone the phrase "useful to humans," that excludes my tomatoes and broccoli.

The code is very clear as to my garden's status. ZC 1134.02(f) reads:

Any use not specifically listed shall be a prohibited use in these zoning districts and shall only be permitted:
(1) Upon amendment of this Ordinance and/or Zoning Map, as provided in Chapter 1130, or
(2) Upon a finding by the Planning Commission that a use is substantially similar to a principally permitted or conditionally permitted use in the district according to the procedures in Chapter 1129.

Uh oh again. I am definitely producing for my personal use plants useful to humans. I have not sought an amendment of the Zoning Map or Ordinance, and there is no principal or conditional permitted use in an R district that is "substantially similar" to my garden.

In short, I am breaking the law hand over fist. Which reminds me, I took some broccoli - the first of the season - to my dad last night. Despite my making a gift of it, I probably compounded my crime.

Before jumping to further conclusions, I checked other parts of the Zoning Code to see if home gardens had slipped in somewhere else. There was nothing in Chapter 1166, Landscaping and Screening Regulations, or Chapter 1171, Design Criteria.

Chapter 1151 deals with non-conforming uses, which are uses, now illegal, allowed to continue to exist because they predate the Code. No luck. Although my in-laws used to have a sizeable vegetable garden at this address, they ceased growing vegetables sometime in the 1990s at the latest. Under ZC 1151.03(d)(2), any non-conforming use discontinued for more than one year ceases to be allowed.

Even if there had not been a discontinuance of the gardening use, my garden will still not slip in as a non-confirming use. ZC 1151.03(b) forbids enlarging, increasing, extending, or relocating to another part of the lot any non-confirming use and I have definitely done that. Ellen and Art used to garden in the area where Warren's new shed now stands.

Under ZC 1127.11(b), I am committing a minor misdemeanor, which carries with it a fine of $100. Every day that I am in violation of the Zoning Code - every day that my garden exists - is a separate offense.

This could get pricey.

If I am cited, my case will have to be heard by a visiting judge, as I work for the Municipal Court judges and that makes them ineligible to hear the case. So my case could become an expensive proposition for the justice system as well.

The only good news is that I will have company in the criminal docket if the City cites me. The Delaware County Juvenile Court maintains a vegetable garden that some of the offenders work in during the summer. I guarantee that the plot, located on Union Street across from the Hayes Building, is not zoned A-1. Judge Spicer and the three magistrates can join me in the docket.

Unfortunately, Scott, my former law partner and personal lawyer, may not be able to represent me as he is doing some container gardening just two houses away and could end up in court as well.

It could be a very crowded docket should all of us home gardeners get cited. Delaware contains about 30,000 people within its limits, most of whom live in areas zoned some classification of Residential. There are an awful lot of home gardens all over town. Just a walk around this neighborhood turns up more than one vegetable garden in more than one backyard.

I don't know if the courtroom could contain us all.

The absurd results of this exercise is a powerful reminder of the power and reach of zoning.

Am I worried about being cited for a violation and hauled into court for my garden? Not really. But what started out to be a search for chickens turned into a disquieting discovery that in seeking to limit "bad" uses in residential neighborhoods, the City has outlawed my onions and basil as well.

Zoning affects property rights. Because of that, the courts require that zoning laws be very specifically written and narrowly construed. Because zoning laws are so strictly construed, a government cannot write a definition such as the one above and then say "we didn't mean for it to be interpreted that way." A government must say exactly what it means when enacting zoning ordinances.

I agree with requiring strict construction of zoning laws. Otherwise, you are on a slippery slope to unequal protection. I also believe that, as a whole, zoning laws are good things. I don't want my neighbors to open a tannery next to me.

On the other hand, when establishing zoning laws, we have to be careful not to cross over the line and prohibit not only backyard dairy herds but also backyard zucchini.

Stewart Brand, the author of How Buildings Learn, wrote that "Quelling change, zoning quells life." In this case, zoning would quell my garden.

I have long admired Henry David Thoreau, an eloquent voice for civil disobedience. In another context, Thoreau wrote "I would rather sit on a pumpkin and have it all to myself than be crowded on a velvet cushion."

I'm making my stand. They'll have to issue the summons to me care of the pumpkin patch.