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Vertical farming faces several challenges. Zoning law is one of them.

May 20, 2022

Jared Burden is member of law firm GreeneHurlocker. He is based in Harrisonburg, Virginia, US.

From Airbnb to Uber, disruptive companies often have to delicately navigate municipal rules and regulations, including zoning laws, in order to operate in densely populated urban centers. Urban farming startups are no exception. Many are grappling with similar issues in their efforts to grow and distribute food in urban settings.

Zoning challenges, in particular, are an obstacle for large-scale vertical farming companies seeking to operate in US cities. Vertical farming was not envisioned by urban planners and leaders until the last decade or two. It is essential to modernize zoning in order to realize the social, economic, and environmental benefits this nascent industry has to offer.

Legal obstacles to vertical farming

The term ‘urban farming’ means different things to different people. For some, the first thing that comes to mind is small backyard and community farms in cities that may span a few vacant lots. These farms (perhaps better described as gardens) serve important functions and are often highlighted in feel-good media stories.

For others — particularly those in the industries of agriculture, technology, and investing — it is the potential of large-scale, indoor vertical farms that is front of mind. That potential includes projects such as Plenty’s vertical farm currently under construction in Compton, California, which is sited in a 95,000-square-foot repurposed warehouse.

While that large-scale project is well underway, zoning is an obstacle that impedes others from getting started in cities across the country.

What is zoning? Broadly speaking, it’s a set of laws and regulations, typically set at the municipal level, which govern what activities are allowed within given zones in an urban area. Many zones are typically defined for a single use — for example, residential, or industrial — in which case they can’t legally host other activities.

A 2019 paper published in the Journal of Food Law & Policy suggests that the existing legal frameworks in most urban areas “do little to address the regulatory ambiguities faced by commercial-scale, indoor farming operations, especially vertical farms.”

The fact that municipalities have been slow to adapt to this change in how and where farming is being done is not surprising. After all, the rapid pace of technological change over the last decade in areas such as financial services, transportation, and media, to name a few, has left local, state, and federal lawmakers in the US racing merely to keep up. In the case of vertical farming, most local governments and their leaders simply did not envision a world in which some urban buildings would be occupied by plants rather than people.

Nonetheless, in order for the promise of vertical farming to become a reality, the current obstacles posed by a patchwork of municipal laws and regulations that were created without vertical farming in mind must be addressed. Unless and until zoning laws and building codes more explicitly define how agriculture can be pursued in urban settings, the potential environmental and economic benefits — including more local jobs, and more tax revenue for municipalities — will not be realized.

The Journal of Food Law & Policy paper includes an explanation of several of the proposed solutions being implemented in some areas to encourage and enable more vertical farming, including zoning updates and tax incentives. Also put forth is an argument that one of the most important steps that could be taken is an update to the International Building Code (IBC), which is used by most US cities, to resolve ambiguities and explicitly permit certain agricultural activities – including accounting for “commercial-scale indoor farming operations” by designating such operations under a specific IBC occupancy group.

The Healthy Food Policy Project (HFPP) is also weighing in with recommendations to help facilitate large-scale urban farming. It has assembled a “list of laws for your city to consider including in your zoning code” on its website, which is a good starting point for municipalities looking to incentivize more urban farming. A couple of the HFPP’s recommendations, along with examples of where and how they have been implemented, include:

  • Providing clarity on agricultural terms. For example, Austin’s relevant ordinances clearly define agricultural uses such as aquaponics, horticulture, and indoor crop production.
  • Specifying which zones allow urban agriculture. Detroit’s ‘Use Category Table‘ includes permitted agriculture terms, making clear which zones allow a specific use.

The limitation on many of the additional policy recommendations offered by the HFPP, such as permitting on-site sale of produce and allowing accessory structures to be built (for example, hoop houses), is that they are geared toward small-scale projects such as community gardens and small greenhouses. These types of projects are important and worthwhile, but if US municipalities and their leaders want to attract large-scale, multi-million-dollar, VC-backed vertical farming startups, it will be necessary to provide further clarity in the law.

Image credit: City of Detroit

If a municipality’s zoning does not authorize a particular project — and if either vertical farming cannot fit into a special use category, or political winds make an outright ordinance change too heavy a lift — a vertical farming startup could seek a use variance.

In Indiana, Roka Farm sought to create an indoor farm in what was formerly a grocery store, in an area that was not zoned for agriculture. The farm had to go through the significant administrative process necessary to obtain a variance, including submitting significant paperwork and notifying those who live nearby of the proposed change; and ultimately, it succeeded.

Generally, however, use variances are hard to obtain and are not a solution for the problem described in this article. There are five stringent requirements in most zoning codes that are beyond the scope of this article; but often the most troublesome is that there is an unnecessary hardship on the applicant, due to the unique nature of the specific property and not merely that the zoning ordinance is preventing the applicant from doing what it wants to do.

Vision & leadership at the local level

Rethinking urban zoning laws to accommodate large-scale indoor agriculture, such as vertical farming, will require the many urban jurisdictions in the US to undertake significant hard work that is preceded by consensus building and thoughtful analysis. But there will be a positive return on that investment for local economies, urban residents, and the global environment. There is momentum building not only among investors, but also among municipal leaders. For example, New York City Mayor Eric Adams made urban agriculture, including vertical farming, part of his campaign policy proposals. According to Adams:

“By creating a new set of building codes, business rules, and tax programs for urban farmers — and supporting local producers with guaranteed City contracts — we will create jobs by building vast in-city sites that produce food for restaurants, schools, and food insecurity programs through cutting-edge techniques such as vertical farming and hydroponics, often sharing space with renewable energy plants and other sustainability infrastructure.”

If vertical farming can make it in New York, it can make it… well, you get the idea. It is here to stay. The question is: Which local governments will be among the first (and most effective) to pave the way for the fast-growing controlled environment agriculture industry to bloom in their communities?

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