Rights at Risk

Landowners Face Unexpected Consequences From Zoning Law Changes

When Joseph Ferguson purchased his farm in Isle of Wight County, Virginia, 25 years ago, he had his first encounter with local government as a landowner. (Progressive Farmer photo by Michael Geissinger)

When Joseph Ferguson purchased his farm in Isle of Wight County, Virginia, 25 years ago, he had his first encounter with local government as a landowner. Not wanting to invest additional cash in building a house right away, he decided to move a mobile home onto his farm to serve as his residence. Doing so required obtaining a permanent rezoning of his property. That was in 1991.

Ferguson thought that would be the end of zoning issues with the county. He rented 23 acres to a neighboring farmer and put 43 acres in pine trees.

OUT OF THE BLUE

Then, in 2011, he came home from his job as a food inspector with the Virginia Department of Agriculture to find a notice tacked to his fencepost advising him he was in violation of local zoning laws.

Ferguson had allowed a disabled friend to park his camper on his farm while hunting in the fall. His friend spent no more than a night or two in the camper at a time. Following an anonymous neighbor's complaint, however, county officials claimed Ferguson was operating an "unauthorized campground" on his farm, violating the local zoning ordinance for agricultural land.

"The real issue was not that the trailer was parked there," Ferguson said. "It was that someone was 'living' in it."

And so began a multiyear struggle with Isle of Wight County that ultimately ended up in court. The nonprofit The Rutherford Institute took on his case pro bono.

"Cases such as this one are becoming increasingly common across the country as overzealous government officials routinely enforce laws that undermine the very property rights enshrined in the U.S. Constitution," The Rutherford Institute president John Rutherford said.

Zoning complaints and the lawsuits they cause affect more than landowners alone. In northern California, fruit and vegetable producers Buzz and Linda Chernoff have long made jams, jellies and other preserves with the produce from their small farm. In fact, Buzz Chernoff says the couple's processed food items are the biggest moneymakers on the farm, not the sale of berries, fruit and vegetables themselves.

RULE CHANGE

For years, the Chernoffs sold the bulk of their products, including apple butter, preserves, chutneys and dried figs, at an "unauthorized" farmers' market in Garden Valley, located in a park owned by the El Dorado County school district. The market had been in existence for 25 years when the park's ownership shifted to the county's recreation department. That was nine years ago, and that's when everything changed. The county decided the farmers' market needed to be regulated, and participants needed to obtain business licenses and health department permits for creating processed foods and collecting taxes. The result was that small-time producers such as the Chernoffs, as well as seasonal participants, who maybe only sold at the market when peaches were in season, for example, could no longer afford to participate.

Lacking a commercial kitchen, the Chernoffs dropped out of the market. "That's the reason we got behind the California Homemade Food Act," says Chernoff of a 2013 state law that allows producers to process foods in their own personal kitchens and earn up to $50,000 in revenue a year without facing the possibility of fines or, even worse, being shut down. "Before the Food Act, we were doing the food processing under the table," he added.

Christina Oatfield, policy director for the Oakland, California-based Sustainable Economies Law Center, said before the Food Act, "the default rule in California's health and safety code was that all food offered for sale or publicly distributed had to be made in a certain type of facility, not a home kitchen."

ANOTHER OPPORTUNITY

Since the law's passage, Oatfield says California has seen more than 2,000 permits issued for cottage industries around the state.

As for the Chernoffs, they still can't afford to go back to the Garden Valley farmers' market, as they can't justify the permits required by the county health department.

The same is true of zoning laws around the country, which is one reason why Ferguson, who lost his case in circuit court in September 2014, was lobbying for passage of Virginia's HB1462. The proposal excludes from the definition of a "campground" property upon which the owner may choose to allow his guests to camp and not be prohibited or encumbered by covenants, restrictions and conditions from providing sanitary facilities within his property lines. The bill died in committee earlier this year.

When asked if he thinks he has gone through a lot of stress and hassle to avoid a $1,000 fine and removal of a temporary camper from his farm, Ferguson shrugs and replies, "Freedom isn't lost in chunks; it's lost in one-bite pieces at a time." He added, "The camper wasn't hurting any neighbors. But it's gone now."

He admits it could take years for the proposed bill to become law. "I'm not giving up on it," he said. "It doesn't do any good to complain about things if you're not ready to do the work to change them."

Ferguson's advice? "Know your county zoning laws, and be prepared to defend yourself."

(BAS)