Berkeley Edible Gardens Initiative

What is it?

The Berkeley Edible Gardens Initiative is a campaign to allow neighbors to sell or trade the surplus edibles they produce in their yards (fruits, vegetables, eggs, and honey). Currently, Berkeley’s Municipal Code prohibits this type of activity unless one applies for permits that cost thousands of dollars. A coalition of local organizations and activists has united to propose minor changes to the City’s zoning code that would facilitate the sale and trade of non-processed edibles produced in Berkeley yards, while still respecting the residential nature of our neighborhoods. The spirit of this initiative is to encourage urban food production as a social good that addresses community health, resilience, sustainability, and climate change.

Tell Me More!

Read the proposed zoning changes in the following pdf. The FAQ at the bottom of this page goes into great detail regarding the proposed zoning language, explaining why certain items are included and why other, possibly relevant items are not.

How Can I Get Involved?

Who’s On Board?

A number of local organizations have endorsed the initiative, including the Ecology Center, Spiral Gardens Community Food Security Project, Sustainable Economies Law Center, Berkeley Community Gardening Collaborative, Slow Food East Bay, East Bay Urban Agriculture Alliance, Urban Adamah, EcoCity Builders, Edible East Bay, The Edible Schoolyard Project, Transition Berkeley.

Background

The Edible Gardens Initiative was begun by Berkeley resident Sophie Hahn, who hired Willow Rosenthal (founder of City Slicker Farms) to convert her backyard to an edible garden. Hahn wished to sell the surplus produce grown in her yard to friends, but discovered that she could not legally do that without purchasing costly permits. Her story was covered in a number of sources, including Terrain Magazine and Berkeleyside.

In October 2010, legislation was proposed to the Berkeley City Council to facilitate sales activity related to Non-Processed Edibles grown or raised in Berkeley’s residential districts. The City Council voiced concerns, asked for clarification, and referred the legislation to the Planning Commission. Around the same time, the Ecology Center reconvened the Berkeley Food Policy Council, the mission of which is “to build a local food system based on sustainable, regional agriculture that fosters the local economy and assures all people of Berkeley to have access to healthy, affordable and culturally appropriate food form non emergency sources.” A working group of the Berkeley Food Policy Council has redrafted the proposed zoning changes to address the City Council’s concerns. The proposed legislation will be submitted to the Berkeley Planning Department and ultimately, the City Council.

Frequently Asked Questions

What is the Definition of Non-Processed Edibles?

The Proposed Legislation defines Non-Processed Edibles as: “Any foods, grown or raised, in their raw or natural state, that have undergone little or no processing. Washing, trimming, bundling, and other handling of otherwise raw or natural foods shall not be considered processing. Individuals engaged in the growing or raising of Non-Processed Edibles are encouraged to employ organic methods.”

This language is derived from definitions of the US Environmental Protection Agency (EPA and the US Food, Drug & Cosmetics Act), and also references local encouragement for such Edibles to be grown or raised using organic methods.

The EPA defines a “Raw Agricultural Commodity” as “An unprocessed human food or animal feed crop (e.g., raw carrots, apples, corn, or eggs.). See www.epa.gov/OCEPAterms.

The Federal Food Drug & Cosmetics Act, SEC. 201., 21 U.S.C. 321 CHAPTER II—DEFINITIONS 1: (r) includes the following definition: The term “'raw agricultural commodity' means any food in its raw or natural state, including all fruits that are washed, colored, or otherwise treated in their unpeeled natural form prior to marketing.”

The decision to “encourage” organic methods rather than require organic methods or formal Organic Certification is discussed further below.

Where Can Edibles Be Grown or Raised?

Edibles can be grown or raised in all areas of a residential property, in accordance with all other applicable sections of the Berkeley Municipal Code (BMC). The BMC includes provisions about what can be grown or built (such as fences, raised beds, etc.) within the City’s Right of Way (usually 2-4 feet in from the sidewalk – this is indicated for each property on official city maps). Other provisions cover keeping of fowl and other animals, and address noise, smells, etc.

What Changes are Being Proposed?

Currently the Berkeley Municipal Code requires a costly and time consuming permit for “Non-Processed Edibles” grown or raised at a Residential property to be sold, traded or bartered, even on a very small, neighbor-to-neighbor scale. The Use Permit costs several thousand dollars, requires public hearings and routinely takes a half year to obtain. The proposed changes to the Berkeley Municipal Code (BMC) create an exception to the Use Permit requirement which closely parallels an existing exception for “Teaching Related Home Occupations.” A permit is still required, and conditions must be met, but the permit is “over the counter” and much reduced in cost. We believe this strikes the appropriate balance between enabling community produced food – a significant health, environmental and social benefit - and preserving the residential nature of Berkeley’s neighborhoods.

Why A Moderate Impact and Not Low Impact Home Occupation?

Different activities in Berkeley require different types of permits. Some are “over the counter” and cannot be appealed once they are granted (Zoning Certificates). Others are over the counter but can be appealed by community members once they are granted (Administrative Use Permits). Others cannot be obtained until a lengthy process has taken place, including public notice and hearings, and can be appealed (Use Permits, Variances). There are different costs associated with different permits.

Why an Administrative Use Permit and Not a Zoning Certificate?

Residences generally cannot be used for business or commercial purposes, but there are some exceptions. Low Impact Home Occupations not involving Customer Visits OR Products can be permitted by over-the-counter, non-appealable Zoning Certificates if they meet certain other criteria. Basically, Low Impact Home Occupations is a category for consultants, writers and others who work from home but do not receive customers/clients or create or store products at home.

Occupations carried out in Residential Areas which include Customer Visits, Products or both require a Use Permit which is costly and time consuming. There is one exception to the Use Permit requirement for activities involving customers and/or products in residential areas, for Teaching Related Home Occupations. Teaching Occupations are considered “Moderate Impact” and require only an “Administrative Use Permit.” This is an over-the-counter permit that allows for appeals after the fact, and is much less costly and time consuming than a Use Permit.

Sales of Non-Processed Edibles involve products and could involve customers, so fall into the category of activities normally allowed only with a Use Permit. Because this activity has very little impact on the residential character of the neighborhood and provides important health, environmental and other benefits to the community, we believe it should fall into the same category as Teaching Related Home Occupations – Moderate Impact. Thus we have crafted a second category entitled “Sale of Non-Processed Edibles Home Occupation” to parallel the Teaching Related Home Occupations exception.

Finally, we believe that the possibility of appeal with an Administrative Use Permit is important in the residential setting. It is conceivable that a circumstance could arise where the activity – or the homeowner involved – should not be allowed to go forward. The Administrative Use Permit provides an important benefit to the community through the possibility of appeal.

What Taxes and Fees Will Apply to This Activity?

In general, Sales of Non-Processed Edibles should be encouraged as a Social Good, so long as the activity is carried out in a manner that does not unduly impact the residential quality of our neighborhoods. The provision of healthy, locally grown food should thus be enabled without undue barriers. As the size of residential lots and the realities of growing or raising edibles significantly limit total output, it is not expected that these “businesses” will generate much positive cash flow. The exchange of value – in the form of direct sales, trading or cooperative/CSA-type arrangements (Community Supported Agriculture) is generally expected to be incidental to enabling of the activity, and not an end in and of itself. In short, this is not a profit driven activity but an activity undertaken for the health and benefit of the community. As such, we believe it should not be subject to taxation.

Currently, four separate taxes and fees would apply to the Sale of Non-Processed Edibles Home Occupation

  1. A one-time Permit fee. The fee for “Moderate Impact” Teaching Related Home Occupations is $257. The fee for Low Impact Home Occupations is $180.We propose that the permitting fee for Sale of Non-Processed Edibles be the same as for Low Impact Home Occupations, $180.This amount is sufficient to process the permitting transaction and presents a less significant barrier for individuals seeking to engage in a socially beneficial activity that is unlikely to provide much, if any, income.
  2. A Business License fee of $25 per year. We feel this is reasonable and propose that this fee be required.
  3. An initial Business License Tax of $51.Given the social benefits, the tradition of not taxing food sales and the extremely low net income potential of this activity, we propose to exempt Sale of Non-Processed Home Edibles from this tax.
  4. A yearly Gross Receipts Tax. We propose that this tax not be required, for the same reasons indicated at item 3, above.

Where Can the Sales and Business Aspects of the Occupation Take Place?

Under the proposed changes to the BMC, all sales, exchanges and other “business” aspects of the Sale of Non Processed Edibles Home Occupation would be hidden from view: “Sales of Non-Processed Edibles must take place either indoors or in a location not visible from public or private property.” This is preserve the residential character of the neighborhood, and is adapted from language in Berkeley’s Medical Marijuana legislation mirroring the Teaching Related Home Occupations exception, “business” aspects of the Sale of Non-Processed Edibles Occupation cannot occupy more than the lesser of 400 square feet or 20% of the dwelling.

How Many Customer Visits Can Take Place at One Time?

4 per hour. This is identical to the Teaching Related Home Occupations exception. Again, in seeking to limit impacts not commensurate with normal expectations of residential areas, we feel this limitation is reasonable. It should be noted that volume of customer visits is also limited by the amount of Edibles which can be grown or raised on a residential parcel. While a teacher working from home can conceivably schedule four students per hour, 12 hours per day, 7 days a week, it is virtually impossible for a home-based edibles “business” to generate this many customer visits due to the limitations of nature and arable space. The 4 per hour customer visit limit was acceptable for another category of Home Occupation and therefore should be acceptable with regards to Sales of Non-Processed Edibles as well.

During What Hours Can Customer Visits Take Place?

8am to 8pm. Teaching Related Home Occupations can already operate for 12 hours a day – from 10 am to 10 pm. In the context of Edibles, 8 am to 8 pm should better accommodate “pick-ups” before or after work, typical times when residents are available for this activity.

Should Organic be Required?

The definition of “Non-Processed Edibles” encourages use of organic methods but does NOT require organic methods or organic certification. With regard to organic standards, residents are not currently limited in their gardening and landscaping practices. While we strongly encourage organic practices, this is up to the individual grower and any potential clients he or she may have.

Organic certification is a very onerous process and is not appropriate for micro-scaled production where consumers can easily verify and influence growing and production methods. Farmer’s Market produce often is not “Certified Organic,” even when grown according to organic methods, as the certification process is too onerous even for small “full time” farms. In the case of customers obtaining food directly from the producer, there is ample opportunity to determine whether growing methods meet the consumer’s satisfaction.

Why Not Require Certified Producer’s Certificate From the Alameda County Agricultural Commissioner?

A Certified Producer’s Certificate exists to provide assurance to customers that produce being sold at a Farmer’s Market is grown by the seller and was not purchased wholesale to be resold. It does not address growing methods, organics or other topics which might be suggested by the certification title. Where a neighbor or community member is obtaining edibles directly from the producer at the production site, and/or is easily able to verify that edibles are in fact being grown or raised at the site, Certification serves no purpose. Should a residential grower/raiser wish to sell edibles at a farmer’s market, Certification will be required to participate in the market and thus will have to be obtained.

What About Value Added/Processed Products Such as Jam, Pickles, Canned Goods, etc.?

While canning, pickling and similar processing of fresh edibles is a logical extension of growing and harvesting, we do not propose to allow the sale of these items. Processing food is heavily regulated at the Federal, State, County and City levels. In San Francisco’s recent comprehensive legislation, sale of processed edibles is allowed, but only outside of Residential areas. We concur. Nothing prevents growers or customers/cooperative members from processing foods for their own household’s consumption, or to give as gifts.

What About Noise and Other Potential Impacts?

The Sale of Non-Processed Edibles Home Occupation addresses SALES only – the activity that triggers the Use Permit requirement - and not the growing and raising of edibles. Adequate rules about what can be grown or raised on a residential property, and the conditions under which these can take place, are already in place in the BMC.

Growing edibles has no greater impacts than growing ornamentals in a well-tended garden. While the images of large farming operations – with their machine-made furrows, tractors, and farm workers - are indelibly written in many peoples’ minds; small scale, residential food production is a very different undertaking, with virtually identical in inputs and growing time to ornamental gardens. Once a week tending by one or a few individuals is adequate to do all the planting, tending, weeding and harvesting necessary in a residential-scale edible garden, and after the initial installation of beds (with no more – and often much less – impact than the installation of an ornamental garden), there is no role for mechanized or motorized equipment whatsoever. Edibles grow as silently as ornamentals!

The BMC already contains provisions limiting or prohibiting excessive noise, smells, and other unacceptable nuisances in residential areas. These provisions already provide the necessary protections for Berkeley’s residential areas, and apply equally to the growing of edibles as ornamentals. Rules addressing the raising of animals are also in place. As such, there is no need for new specifications in the currently proposed legislation, which addresses only the impacts and conditions associated with SALES – the activity which triggers the need for the permit.

Why Should This Be Allowed in all Residential Areas? Why Not Some Restrictions?

The Teaching Related Home Occupations exception applies in all residential areas of Berkeley. The Sale of Non-Processed Edibles exception involves the same number of hours of operation, the same number of customer visits per hour, and other parallel or identical terms. There is no reason to allow those impacts in the case of Teaching Related Occupations but restrict them with respect to Sales of Non-Processed Edibles. Medical Marijuana collectives, without restriction on number of members, number of visits per hour or hours of operation are also permitted in all residential areas. Again, there is no reason to limit the geographic scope of Sales of Non-processed Edibles when even greater potential impacts are allowed in all Residential areas of Berkeley for other activities. Finally, growing and raising edibles is currently allowed in all residential areas of Berkeley, so the potential to generate – and share or sell – edibles, with all the positive outcomes for heath, labor and the environment, should be fully enabled throughout.

What about Food Safety?

With regard to Food Safety in particular, most efforts to address food safety concern themselves with two things: Production Practices and “Traceability.” Many resources exist which outline best Production Practices. Given that liability falls to the producer, it is expected that individuals undertaking this activity will consult and follow such practices, as is the case with any other subject to liability for its activities. Traceability refers to a chain of custody documenting the movement of food from production to consumption.

While traceability does not prevent the occurrence of food borne illness, it is important in order to track disease outbreaks to their origin. In most cases, direct sales of farm produce (Farm Stands, CSAs and Farmers’ Markets) are exempt from traceability requirements because the chain of custody is simply one transaction—from producer to consumer. Given that the sale of Non-Processed Edibles by a backyard gardener to a neighbor or other community member is an equally – or even more - direct transaction (sales occur where the food is produced, and conditions and practices can be verified), the problem of knowing where food originated is rendered moot.

What about Soil Contamination/Safety?

In Residential Areas in Berkeley, the most likely soil contaminant is lead dust/residue from paints used on home exteriors before the banning of lead in paints. Applicants will be required to show proof of a soil test with a lead level no greater than 300ppm, a nationally accepted standard. In addition, applicants will have to sign a form stating that the lead test was performed according to prescribed specifications, on soil actually to be used for growing, and commit to “use reasonable care, including additional soils testing if warranted, to assure that any future imported soils.” Only testing for lead will be required for growing in Berkeley’s residential areas, as the other soil hazards – such as those which can be found in previously industrial or commercial land - are unlikely to be present.

What About the Producer’s Liability?

Production and sale of food is regulated by state and federal regulations. The liability for these activities clearly falls on the producer/vendor. Most small farmers have producer insurance to protect them in the case of a lawsuit. Homeowners’ general liability insurance may or may not cover these activities depending on the carrier and policy. Additional producer insurance is commercially available. Obtaining and verifying insurance coverage for Sale of Non-Processed Edibles is a private matter, and therefore the proposed legislation is silent.

What is the City’s Liability Exposure?

So long as the City of Berkeley follows its own policies and procedures, it is shielded from any liability related to Sales of Non-Processed Edibles – or any other activity it permits.