Florida nuisance law and urban agriculture.

• Author: Ansbacher, Sidney F.
• Position: City, County and Local Government Law

The Community Planning Act of 2011 marked a dramatic shift in Florida's approach to growth management. Prior to the enactment of the act, Florida employed a top-down comprehensive planning approach under the Growth Management Act of 1985. The Florida Department of Community Affairs often had the final say on land use decisions at the state and local levels. The Community Planning Act dismantled much of the structure of the Growth Management Act and, in doing so, has allowed for greater flexibility at the local level to utilize creative planning tools in response to changing local conditions.

The rise of urban agriculture, once deemed a nuisance under traditional, top-down planning laws, is aided by the more flexible standards of the Community Planning Act. Common law prohibited urban agriculture as a nuisance, and much of modern Euclidean zoning derived from nuisance law. This article seeks to provide context for the rise of urban agriculture in Florida by tracing the evolution of Florida's zoning and growth management laws. With the increasing loss of Florida's rural agricultural lands due to creeping urbanization, the Community Planning Act's flexible standards provide a valuable tool in combatting the continued depletion of Florida's agricultural lands, a naturally and economically valuable resource, fostering creative, mixed-use urban development, and minimizing city core food deserts.

Public Nuisance Law and its Genesis

The most common objection that new property owners register against agricultural operations is that they constitute a nuisance. An agricultural nuisance has been defined as "a condition that substantially interferes with the use and enjoyment of land causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy [their land]." (1) More specifically, scholars have noted three general categories of nuisance: 1) activity that causes property damage; 2) actions that cause personal injury on the affected property; and 3) "even when there is not physical harm to the property or its occupants, a nuisance claim may arise from emotional harm to a person caused by deprivation of the use and enjoyment of that person's property because of fear, apprehension or loss of peace of mind." (2) In evaluating whether an activity is "nuisance," courts generally balance an activity's public benefit with the public inconvenience. (3)

The urbanization of modern America in the turn of the 20th century led to zoning as an outgrowth of public nuisance law. (4) In Euclid v. Ambler Realty, 272 U.S. 365 (1926), which is credited as establishing modern zoning law, the Supreme Court emphasized the distinction between densities and intensities of uses allowed in urban and rural settings (5) and approved a zoning scheme that segregated incompatible uses. (6) Before "Euclidean zoning," exemplified by Berkeley's single-family districts as early as 1916, urban settings interwove commercial and residential uses, as residents would take a short walk to, or even live, where they worked.

Municipalities implemented Euclid by seeking to separate deemed incompatible uses, such as agricultural from residential, to avoid perceived "inherent conflict between uses that were not identical." (7) Unfortunately, the strict zoning under Euclid segregates single-use zones so strictly that "[t]he fundamental problem with Euclidean zoning is that it... ignores how cities actually operate." (8)

Loss of productive farmland is one of the established results of strict Euclidean zoning because agriculture is pushed out of areas that municipalities and counties legislatively determine are better suited for other, deemed incompatible, uses. (9) Not only urban agriculture is affected, but also sprawl pushing out "incompatible uses" has combined with the suburban migration of recent decades to eradicate farmland at a shocking rate. (10)

Florida Zoning

Florida's zoning originated in nuisance abatement similar to the national model of Euclid. (11) The Fourth District Court of Appeal discussed the general standard of public nuisance in the state: "To be a public nuisance, property must cause inconvenience or damage to the public generally.... Property with any value cannot be deemed a nuisance, the nature of which perforce lacks that redeeming quality." (12) The Florida Supreme Court established a broader rule. (13) It noted that a nuisance is any "annoyance to the community or harm to public health"; therefore, a nuisance may exist even if all environmental statutes are met. (14)

In Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So. 2d 881 (Fla. 1972), the Florida Supreme Court addressed a challenge to Florida's public nuisance statute as unconstitutionally vague. The court held that the state enjoys broad nuisance abatement discretion: "In the exercise of its police power the [s]tate has authority to prevent or abate nuisances, for police power is the sovereign power of the [s]tate to enact laws for the protection of lives, health, morals, comfort and general welfare." (15) Accordingly, the court held the statute was constitutional because it "conveys a definite warning as to proscribed conduct when measured by common understanding and practices satisfied due process." (16) While the petitioner alleged the statute did not list proscribed nuisances, the court emphasized the fact-specific nature of nuisance abatement: "It is not possible to define comprehensively nuisances as each case must turn upon its facts and be judicially determined." (17)

Florida's Modern Comprehensive Plan Law

In addition to zoning, Florida has employed an additional layer of growth management through its comprehensive planning legislation beginning in 1972 with the Florida state Comprehensive Planning Act. (18) This act required the generation of a state comprehensive plan. The 1975 legislature buttressed the 1972 legislation by passing the Local Government Comprehensive Planning Act. (19) The 1975 act did not require local plans to be consistent with the state plan once the latter was finalized. Nonetheless, the twice head of the Florida state planning agency described the 1975 act as "at the time constituting] the strongest piece of local planning enabling legislation ever enacted in the country, requir[ing] every local government in Florida to adopt a comprehensive plan in accordance with...