Only Two States Have Passed ‘Right to Garden’ Laws. Will Others Follow? | Civil Eats

Only Two States Have Passed ‘Right to Garden’ Laws. Will Others Follow?

In recent years, Illinois and Florida have passed legislation protecting citizens’ right to garden on their property. A movement is underway to pass more laws around the country.

A home garden in Maine. (Photo CC-licensed by the National Garden Clubs)

Photo CC-licensed by the National Garden Clubs.

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Carrots, baby kale, and spinach never tasted so sweet. After emerging from a multi-year legal battle over gardening, Nicole Virgil is looking forward to cultivating those vegetables and more this winter in her backyard. Growing one’s own food, central to human existence for millennia, has suddenly become a hot-button topic in some communities.

From Michigan to Massachusetts, people have been thwarted—or even outright banned—from growing food on their own property. But thanks to the concerted efforts of people like Virgil and their legal allies, “right to garden” laws are slowly gaining traction. Such legislation remains scarce at the state level, however—only Illinois and Florida have laws on the books, although Maine recently updated its constitution with a “right to food” amendment.

City regulations, homeowners’ association guidelines, and other ordinances have often been invoked to force gardeners to remove their plants.

Charged with Gardening

In the spring of 2011, Julie Bass installed several raised beds in the front yard of her suburban property in Oak Park, Michigan. Bass quickly learned that her gardening efforts, intended to teach her kids about growing their own food, had provoked the ire of her city. Bass was cited with a civil misdemeanor for not planting “grass, shrubs, or other suitable live plant material.”

“I was left thinking that they took a pretty broad and unwarranted interpretation of that code,” Bass wrote on a blog she started to document her experience. When Oak Park officials threatened to prosecute Bass with a more serious criminal misdemeanor, which would potentially come with a 93-day jail sentence, she took her story public. (The charges were ultimately dismissed.)

Bass’s experience is unfortunately not unique. City regulations, homeowners’ association guidelines, and other ordinances have often been invoked to force gardeners to remove their plants. The arguments put forth against gardening have been myriad and occasionally baffling: greenhouses reduce property values, raised beds do not conform to the aesthetics of a well-tended yard, and vegetables growing in the ground are unsightly, among others. Such criticisms tend to be rooted in discrimination, said Ari Bargil, an attorney with the Institute for Justice who has represented several gardeners. “These are classist restrictions that are designed to make neighborhoods look a certain way.”

But progress is being made—in both Florida and Illinois so far. That’s hard-won legislation, said Bargil, who was involved in both cases. “Getting reforms like this passed is very, very difficult.”

Jumping Through Hoops

Nicole Virgil is well aware that shepherding a bill through at the state level is a time-consuming and challenging process. She and her husband spent years fighting for their right to garden.

After growing summer crops such as corn and tomatoes for a few years in their backyard in the Chicago suburb of Elmhurst, Illinois, Nicole and Dan Virgil accepted that their gardening efforts had morphed into a year-round obsession. But faced with notoriously windy and frigid winter conditions, the Virgils decided to erect a temporary greenhouse—a hoop house.

The 9-foot-tall structure buffered young plants from the wind and prevented them from getting buried in snow. Without a hoop house, it’d be futile to grow much in winter, said Virgil.

However, a neighbor soon complained. The hoop house was unsightly and its plastic membrane rattled in the wind, they reported in 2015. The Virgils removed the structure at the request of the city, but the idea of giving up on homegrown winter vegetables rubbed them the wrong way. For years, the dispute festered in the community, and city officials held firm despite testimonies from Virgil’s supporters. The city of Elmhurst started to bring lawyers to meetings, said Virgil. “They had lawyers standing behind lawyers over the threat of us growing cold-hardy crops through the winter.”

Elmhurst officials also began circulating photos of the Virgil children selling homegrown vegetables. They were suggesting that we were running an illegal farm business, said Virgil. “It’s the closest thing I’ve seen in real life to that movie ‘Erin Brockovich.’”

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In 2018, a friend who owned a nearby garden store connected Virgil with a state senator. That introduction planted a seed of an idea: what about a bill at the state level to protect home gardeners in Illinois? To begin exploring that concept, Virgil started working with organizations including the Illinois Environmental Council, the Citizen Advocacy Center, and Advocates for Urban Agriculture.

That motion passed just a few months ago, and the Virgils are currently sourcing the materials for their long-awaited hoop house. “We’ll have a hoop house-raising party this October,” said Virgil.

But the real breakthrough came, said Virgil, when she joined forces with the Institute for Justice. The public interest law firm, which has a history of working with citizens-turned-gardening activists, provided an enormous outpouring of expertise, knowledge, and support, said Virgil. “It’s a team that I never had before.”

The Institute for Justice helped craft what came to be known as the Illinois Vegetable Garden Protection Act. After passing by an overwhelming margin in both the Illinois House and Senate, it was signed into law by Governor J.B. Pritzker in July 2021. The Act stipulates that: “[A]ny person may cultivate vegetable gardens on their own property, or on the private property of another with the permission of the owner, in any county, municipality, or other political subdivision of this state.”

It was thrilling to see this legislation finally on the books, Virgil said. Unfortunately, her battles weren’t over: According to the new Act, state and local organizations still retained jurisdiction over setbacks, water use, structures, and so on. And the city of Elmhurst wasted no time exploiting that fact, she said. Last summer, Elmhurst attempted to limit so-called “seasonal membrane structures”—including shade cloths, tents, and hoop houses—to no more than 120 square feet. “You could only do a doll house-sized hoop house,” said Virgil.

But Virgil was ready with her cadre of supporters. Literally overnight, she mobilized more than a hundred people to send emails to the Elmhurst city council requesting that seasonal membrane structures be allowed up to 400 square feet. That motion passed just a few months ago, and the Virgils are currently sourcing the materials for their long-awaited hoop house. “We’ll have a hoop house-raising party this October,” said Virgil.

Strategies for Success

Virgil is quick to point out several strategies that likely contributed to her success. First off, rely on connections, she said: The idea of even pursuing a ruling at the state level was set in motion by a friend. That person brokered a connection with a state senator in a neighboring district, who was happy to go to bat against a city’s rules that he viewed as unnecessarily restrictive. “I would never have thought to go to the state if they hadn’t offered an introduction,” said Virgil. “I needed that link in the chain.” And that’s just one example, she said. “There were dozens of people like that.”

Second, look for allies: Based on the countless hours she spent advocating with government officials, Virgil said she soon learned who was on her side. “I knew all the local players,” she said. That included Representative Sonya Harper, who would go on to introduce the Illinois Vegetable Garden Protection Act. For more than 10 years, Harper has run a community garden in Chicago. Gardening strengthens communities and encourages people to talk to their neighbors, said Harper. “It’s much more than just growing food.”

Third, stick with the issue at hand, said Virgil. As the dispute in Elmhurst dragged on over years, several supporters approached Virgil with the question of whether the conflict might be racially motivated. But Virgil, who is Black, never made that claim. “Legally, I couldn’t prove that,” she said. “It’s not productive for me to bring that up.” (As of 2019, only 1.2 percent of Elmhurst residents are African American.)

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And last, mobilize supporters but use them sparingly: “I learned not to tap people too often,” Virgil said. My supporters were therefore ready and willing to help me when I really needed it, she said. She credits that mindset with her ability to marshal volunteers to quickly urge the Elmhurst city council to reconsider their hoop-house rules. “When I mobilize them, I mobilize them hard and fast and for a very specific purpose,” said Virgil.

“Food is life, and if you have a right to life, we have a right to food.”

Illinois, Florida, and Beyond?

The Illinois ruling isn’t without precedent. In 2019, Florida passed the Vegetable Gardens bill, which prohibits local governments from banning vegetable gardens on any part of residential properties. That legislation came about after another gardening couple—Hermine Ricketts and Tom Carroll—decided to fight back about being forced to remove the vegetable garden that had graced their front yard for more than 17 years.

Legislation protecting citizens’ right to garden has been proposed in other states as well. Earlier this year, Rick West of the Oklahoma House of Representatives introduced the Oklahoma Right to Garden Act of 2022. West, who lives on a ranch in eastern Oklahoma and tends a garden, believes that everyone should have the right to grow their own food. It’s a simple way to thwart the government from overreaching, West said. “If they can control food, then they can control the people.” The legislation that West proposed recently passed in the Oklahoma House but failed in the Senate. West is determined to keep trying. “I’m going to run it again,” he said.

And officials in Maine recently added a “right to food” amendment to their state’s constitution. That legislation, which was overwhelmingly approved by the state’s House and Senate and then by voters last November, safeguards people’s right to grow and consume their own food. Interestingly, it was proposed by an unlikely alliance: Representative Billy Bob Faulkingham, a Republican, joined forces with Senator Craig Hickman, a Democrat who runs an organic farm. “Food is life, and if you have a right to life, we have a right to food,” Hickman recently told the Global Solidarity Alliance for Food, Health and Social Justice. “I can’t imagine a more non-partisan issue than that.”

Katherine Kornei is a science journalist whose work has appeared in Science, Scientific American, and The New York Times. Read more >

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  1. Where I live, San Diego, the city adopted a series of Urban Farming Amendments to make it easier for residents to grow veggies, keep bees, and raise chickens within city neighborhoods. Yay! How can the law say we can't grow our own food? It's like those rules that prohibit residents from hanging laundry in the sun to dry. Right to food, right to light.

    https://www.sandiego.gov/urban-farming/gardens
  2. Burt Furuta
    This article reminded me of the book, Farmacology, by Dr. Daphne Miller. The author visits several farms and urban gardens and shows how connecting to the land is more than growing food; it is nourishing in so many different ways.
  3. Fern
    While I wholeheartedly agree that everyone should be able to grow food on their property, I do not agree with having structures that make noise or are so large that they obstruct a neighbor’s view.

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