As the local and regional food shed movement and the urban agriculture movements continue to grow, land uses once considered only for rural landscape are now sprouting up in urban and suburban communities. From nuisance law to zoning regulations; your desire to raise your own chickens for eggs or plant your own corn may require the advice and counsel of an attorney to help jump the hurdles.
A growing trend in the United States and North Carolina is farming by private landowners. Rural and urban landowners are doing more home gardening and backyard farming. Whether you are planting veggies, raising chickens for eggs or using goats for milk, there may be some legal problems with your farming endeavors.
Why are more people growing their own vegetables or raising their own chickens for eggs or dinners? There are several reasons why someone might want to farm;
Whether it is true or not, some people believe raising their own food is cheaper. It can be but it is not always cheaper;
Health is another reason; avoiding insecticides, herbicides, genetically engineered produce, and pesticides is a major reason for farming your own food;
Chicken eggs from your own chickens just taste better, so does a pork chop from your own pig and squash from your own garden; and
Farming can be used as a learning activity for children and a family bonding activity.
No matter what you are farming or why you are farming, there are many legal issues you need to keep abreast of when home farming:
Local zoning laws and ordinances: Many municipalities have restrictions on which and how many farm animals you may keep on your residential property. N.C. Gen. Stat. § 160A-186 grants power to municipalities to regulate or ban “domestic animals,” inside their jurisdictional limits. According to the grant of power a city may regulate, restrict, or prohibit the keeping, running, or going at large of any domestic animals, including dogs and cats. However, cities and towns that once banned outright chicken and other livestock are now reversing course. Raleigh, Durham and Chapel Hill all allow chickens. The Town of Carrboro allows chickens and goats. The Cary Town Council has authorized town staff to research and draft a proposed ordinance allowing up to eight hens on residential property. However, some communities still ban urban livestock. Check your local laws and zoning ordinances but be aware, some ordinances do not directly ban home livestock production but instead rely on a specific interpretation of their own ordinances to justify a de facto ban. Hire an attorney to review the ordinances with you and to determine if you may be qualified to seek a variance, special use permit or other legal avenue to meet your need to farm and the legality of your locality
Building laws and ordinance:. Building codes and/or ordinances may prevent you from building a chicken coop, a corral, or a barn. There may be set back restrictions, there may be restrictions on the size or type of building you can build for your animals. There may be types of construction methods that are not allowed. Again, see out a licensed attorney in your area to determine if there is an issue with your property and whether there is any recourse for you.
Home Owner’s Associations: HOA rules may ban you from keeping animals or even a garden on your property.
Nuisance and attractive nuisance: Before there were zoning laws and continuing through today, many opponents of urban farming focus on nuisance suits. They institute lawsuits over their concern about noise, odors, diseases, and sanitation problems stemming from improper care and maintenance of livestock. They also raise the argument that with urban livestock there is an increase of natural predators in the area that feed on them. Proponents of urban farming say that the keeping of livestock has benefits outweighing the potential negatives: in the case of chickens; pest control; free fertilizer for home gardening; egg production for home consumption; and the fun of a family pet. The urban farmer argues that chickens and goats and even pigs are not as loud and disruptive as dogs, odor is easily controlled with proper cleaning and no more concern than the odor of traditional pets. The Center for Disease Control has stated that it is safe to maintain small numbers of chickens at home. Arguments against urban livestock with respect to trespassing and destruction of property are without merit as they will be subject to animal control laws just like any other family pet and a well-designed coop or pen along with the urban environment will prevent predators from considering the area a buffet.
An attractive nuisance is something that poses a danger to children and lures them onto another’s property and into the danger. According to the Restatement of Torts section 339, which is followed in some jurisdictions, there are five conditions that must be met for a land owner to be liable for damages to a child trespasser. The five conditions are:
The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, and
The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children;
The children, because of their youth, do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it;
The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Swimming pools are classic attractive nuisances and as a result many cities and towns have ordinances that require fencing around them to prevent children from trespassing.
Children love animals, so, for the urban farmer, making sure the animals are properly penned is a must and will go a long way to protecting one’s self from such lawsuites. Otherwise, if a child comes onto your property and gets hurt you will be placing yourself at risk for a civil lawsuit.
Check your local ordinances for other permitting requirements and licenses.
No matter your goals for your backyard farm, make sure you follow the rules for your property otherwise you may find out that backyard chickens cost more than they are worth. If you need an attorney to review with you your local rules and restrictions with respect to your backyard farm, please call an attorney licensed in your jurisdiction. If you live in North Carolina, please feel free to call Richard Kern Law, we can review the ordinances and rules of your locality in North Carolina and help you determine the viability of urban farming in your locale.
Disclaimer: Seek legal advice from an attorney licensed to practice in your jurisdiction.