Justice for the gardens

Ginny Smith writes about Las Parcelas, a community garden that's part of the Norris Square Project, 2240 N. 2nd Street. Attorney Amy Laura Cahn, center talks with Interim Executive Director Megan Barnes, left and Director of Garden Programs Rafael Alvarez, right.( Ed Hille / Staff Photographer )

Attorney Amy Laura Cahn has a most unusual specialty: community gardens and urban farms.

You might not think such benign institutions would need a lawyer, but Cahn's hard at work helping growers across Philadelphia fight a proposed change in the city's new zoning code. It's one they believe will cost them precious time and money, saddle them with red tape, and possibly threaten their existence.

"This is a step backward. It's going against the tide of cities' taking affirmative steps to create opportunities to garden and farm," said Cahn, a 2009 University of Pennsylvania Law School grad working for the Public Interest Law Center of Philadelphia.

The Worcester, Mass., native is in the last year of a two-year Skadden Fellowship that has launched the firm's Garden Justice Legal Initiative. She may be the nation's only lawyer doing this kind of work full time, although rising interest in small-scale farming and other sustainability issues (green roofs, bees, chickens) is prompting more land-use legal questions than ever, especially in cities.

Philadelphia has an estimated 350 gardens and farms, growing more food than flowers, on 1,200 parcels of land. Of those, more than 200 are in mixed-use commercial areas, according to the city's new zoning code, which went into effect in August after four years of deliberation and public participation.

Cahn and her cohort are upset about an amendment to the code proposed by City Councilman Brian J. O'Neill that would require community gardens and farms, along with several other uses, to get permission from the Zoning Board of Adjustment to operate in these areas. (Gardens and farms were not even included in the old code.)

The permission is called a special exception, and it's no over-the-counter matter. Cahn estimates it will cost all applicants $250 per parcel plus, for nonprofits, legal fees. (The zoning board requires nonprofits to be represented by counsel.)

Here's the drill:

Applicants must schedule a hearing, post notices on the property, notify neighbors and the district Council person, meet with community groups, provide testimony at the hearing, demonstrate that the proposed use is consistent with the code and related standards, and, if opponents testify that the garden has adversely affected the neighborhood, submit evidence to the contrary.

O'Neill, who represents the Far Northeast and served on the Zoning Code Commission, did not respond to requests for comment. Previously, he has said his goal in putting forth the bill, scheduled for a full Council vote Jan. 24, was not to "gut the zoning code," but to improve it.

Councilwoman Marian B. Tasco, whose district covers neighborhoods in the Northwest and lower Northeast, supports O'Neill's amendment because "it provides a way for the community to have some input or discussion" about local land use.

"We're not against community gardens . . . but you just can't go into a neighborhood and have your way without discussing it with the neighbors," she says, citing hearing testimony about "how outside people . . . set up community gardens without consulting" the locals.

Garden advocates say the example Tasco cites is not a community garden per se but a proposal for a nonprofit Patch Adams free health clinic in North Philadelphia that "incorporates some elements of green space." According to founder Paul Glover, the five-acre site would include not just the clinic and related services, but also an orchard, greenhouse, and gardens.

Advocates insist that community gardens and farms are, by their very nature, deeply connected to neighborhoods. And they worry that the special exception will discourage existing and future growers at a time when the interest in, and need for, homegrown food is high.

"Bureaucracy is not easy to deal with," said Elizabeth Grimaldi, executive director of the 27-year-old Village of Arts and Humanities in North Philadelphia, which is involved in community and youth gardening and would need permission to continue those programs.

"There's only four of us that work full time here and we're really strapped. If I'm spending an hour standing in line getting a permit or sitting at a hearing, that's an hour I haven't spent writing grant proposals," she said.

To get the special exception, growers would have to prove they have "clean permission" from the landowner, whether land title or lease. This can be a formidable obstacle.

"It sounds terrible to say you're gardening on land you don't own, but most gardens don't have 'clean permission' because you cannot get one," says the Pennsylvania Horticultural Society's Sally McCabe, who works extensively with city growers.

This is what often happens when gardeners try to trace the provenance of privately owned parcels, which constitute about 75 percent of the city's 40,000 vacant lots: "Mr. Smith bought the property 60 years ago but no taxes have been paid since 1947, no one can find him, and the children have not come forward.

"Many of these gardens are on marginal land that's been abandoned," says McCabe, who wrote the new code's language on gardens and farms. It allows gardens and farms as a matter of right with provisions to address problems arising with drainage, trash and compost, storage areas, fencing, and use of power equipment.

About 25 percent of the city's vacant land is owned by public agencies, a system no easier to navigate. City Council is working to create a land bank that would streamline the process.

Meanwhile, the entire new zoning code is slated for a review of what's working and what isn't, after it's been in place for a year, an idea garden advocates strongly favor.

"Why not wait for that?" asks Megan Barnes, interim executive director at Norris Square Neighborhood Project, which runs six community gardens and other programs for children and adults on 66 parcels in West Kensington.

The Latino nonprofit, founded in 1973, will need a special exception for at least 23 of those parcels, a task Cahn will take on if and when the time comes.

The Public Interest Law Center is already raising money to continue her garden justice work after the Skadden Fellowship ends in October.

"I'm committed to staying," Cahn says.


Rafael Alvarez shows off Las Parcelas, a community garden in Norris Square.


Contact Virginia A. Smith at 215-854-5720 or vsmith@phillynews.com.