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Florida Nuisance Law and Urban Agriculture

Environmental & Land Use 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 settings5 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 constitut[ing] 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 detailed statutory requirements by 1979.”20

The 1975 act’s “consistency” requirement was significant. The state required local governments to ensure that all future local government legislative “land development regulations,” such as zoning codes, and “development orders,” such as site-specific rezonings, variances, and site plans, were consistent with the mandatory local comprehensive plan.21 The act did not, however, contain criteria for local plans to meet nor a plan map requirement. Furthermore, and significant to the topic of this article, the state land planning agency enjoyed only advisory authority over local plans.22

While the state adopted an advisory state comprehensive plan23 and required the various regional planning councils to adopt their own regional plans,24 Governor Bob Graham initiated the next major step when he formed the Environmental Land Management Study Committee (ELMS I). ELMS I addressed coastal management and DRIs and recommended a tiered system of state agency, regional, and local plans.25 The 1984 legislature passed the State and Regional Planning Act,26 which imposed all but the local plan requirement.27 The 1985 legislature took the next step.

A full assessment of the 1985 legislation is well beyond the scope of this article. The 1985 Growth Management Act28 expanded various land use programs. Its broadest impacts were mandating “elements” and a land use map for each local government’s plans, and requiring each such plan to be consistent internally and with state planning standards.29 The act required regional and state review of the plan and most of its amendments.30 Among the local government development orders that had to be consistent with the state, regional, and local planning requirements were building permits, rezonings, special exceptions, variances, plats, and site plans. F.S. §163.3161(5) stated succinctly the relationship: “[A]dopted comprehensive plans shall have the legal status set out in this act and….no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with [the Growth Management Act].”

Tiered planning was and remained popular for many years.31 The great recession, however, combined with a strong Republican majority of the legislature and pro-business Governor Rick Scott led to a global review of the top-down planning process that had governed Florida growth management for the past two decades. The leadership chafed particularly at Florida Department of Community Affairs Secretary Tom Pelham’s aggressive enforcement of what he perceived to be the dictates of the Growth Management Act. Pelham was a lead architect of that act. His vision of how to implement the act conflicted with newer legislative goals. The 2011 legislature blew up F.S. Ch. 163. S.B. 2156 eliminated the Department of Community Affairs. In its place, the state created the Department of Economic Opportunity.32

The heart of the changes lay in H.B. 7207, adopted as Laws of Fla. Ch. 2011-139. That massive bill eliminated all but four public infrastructure “concurrency” requirements for new development. Remaining were sanitary sewer, potable water, solid waste, and stormwater. Prevailing mandatory requirements for transportation, schools, parks, and recreational facilities became optional for local governments. The act loosened population-based land use plan caps, and shifted the focus to more market-based indicators. F.S. §163.3177 incorporated some of the less controversial aspects in the former statute and implementing rules, but H.B. 7207 repealed the state’s minimum criteria rules that had vexed many developers and local governments. The act also deemphasized comprehensive plan amendment processing by the state, and greatly limited state agency comments and appellate opportunities.

Nuisance Law and Florida Planning and Zoning
One Florida decision demonstrates the role of nuisance law in modern planning and zoning in our state. The First District Court of Appeal addressed the relationship between nuisance law and planning and zoning ordinances in Windward Marina v. City of Destin, 743 So. 2d 635 (Fla. 1st DCA 1999). The municipal comprehensive plan determined compatibility of proposed uses by, among other issues, whether the use would constitute a nuisance.33 The court majority upheld the standard, emphasizing “[w]e are not unmindful of the case law that requires a local government’s denial of a land development order to be based on specific criteria set forth in its duly enacted land use regulations.”34 The Windward Marina majority noted the Florida Supreme Court’s definition of a common law nuisance. In Prior v. White, 80 So. 347 (1938), the Florida Supreme Court stated a common law nuisance is anything that “either annoys, injures, or endangers the comfort, health, repose or safety of the citizen, or which unlawfully interferes with or tends to obstruct, or in any way renders unsafe and unsecure other persons in life or in the use of their property.”35

Agricultural Zoning in Florida
Florida has employed a variety of tools throughout the years to combat the increasing loss of rural agriculture to urbanization. For instance, Florida’s Right to Farm Act,36 enacted in 1979, provides protection for commercial agricultural and farming operations from nuisance claims if they have been in operation for more than one year and were not a nuisance at the time they began operation.

More recently, “agricultural enclave” legislation created one of Florida’s more sweeping and controversial agricultural property rights mechanisms. The intent behind enclave legislation was to curtail urban sprawl by allowing agricultural lands that were surrounded by development to convert to residential, commercial, or industrial uses. The goal makes sense, but the controversy involves concerns over whether it undermines protection of productive agricultural lands.

The 2004 legislature passed S.B. 1712, the first enclave bill, with only six dissenting votes, and presented it to Governor Jeb Bush. A broad coalition of public interest and planning groups opposed the bill.37 They supported the underlying basis for the bill, but claimed the bill’s language was too broad.38 Governor Bush ultimately vetoed S.B. 1712, stating his fear that farmers would be tempted to cash-out productive lands for development, thereby undermining prudent land use and fostering sprawl.39 The governor argued that agricultural land use conversions present local, not statewide, decisions.40

The 2006 legislature passed the Agricultural Enclave Development Act (H.B. 1015/S.B. 1880), which the governor signed into law. The act at §163.3164(4) defines enclaves as lands owned by one entity, used for agricultural purposes for at least five years, surrounded on at least 75 percent of their boundary by development, served by public facilities, and containing 1,280 acres or fewer. Under certain circumstances, enclaves could be up to 4,480 acres. The enclave act allows conversion of deemed constrained lands.

Florida’s Local Government Home Rule
Urban agriculture, by its nature, converts urban uses to small-scale agriculture. Whereas enclave laws encourage conversion of agriculture that is no longer viable on city fringes, urban agriculture fosters conversion to agricultural uses to improve city core quality of life; it, per se, affects municipalities more than unincorporated areas. Florida’s municipalities enjoy home-rule powers that aid them in creative zoning and permitting41 with two general limitations. First, a municipality may exercise powers that are concurrent with state government authority, provided that state law controls when a conflict exists.42 The other limitation is that the local government act with a “valid municipal purpose.”43 Of course, Euclid creates a virtually per se standard, supporting zoning as a general municipal power. The general Florida standard for finding a municipal purpose is a recitation of police power authority. In Ormond Beach v. County of Volusia, 535 So. 2d 302, 304 (Fla. 5th DCA 1988), for example, the Fifth District Court of Appeal stated that a municipal purpose must “be needed for the health, morals, safety, protection, or welfare of the city.”

The Community Planning Act opened the door for the incorporation of greater flexibility in local government plans and zoning codes. eliminating the need for the state to sign off on most comprehensive plan amendments, local governments are free to employ creative planning tools to better adapt their development regulations to local needs. A number of municipalities and counties have responded to citizen demand for looser zoning district standards in residential districts by amending their zoning codes to allow for backyard chickens and gardens.

For instance, after a concerted effort by a group of local residents, the city of Jacksonville recently established a two-year pilot program allowing up to 300 permits for backyard hens.44 Orlando recently expanded its two-year pilot program to a third year, and has increased the number of permits and raised the number of hens permitted in the process.45 Other cities have moved beyond pilot programs and adopted ordinances that allow backyard chickens (with permits) in residential districts, including Tampa and Pinellas County.

However, not all local governments have embraced urban agriculture. Orange County, Winter Park, Port Orange, and Titusville have all declined to adopt backyard chicken programs.46 Commonly cited concerns include noise, odor, and disease — in short, the nuisance characteristics of agricultural uses in residential zoning districts. And the push toward, or away from, urban agriculture is not limited to backyard chickens. The village of Miami Shores recently enforced an ordinance specially banning front yard gardens. Citing aesthetic concerns, the village limits front yard landscaping to fruits, flowers, and ornamental garden accessories. 47

Euclidian zoning aimed to solve zoning issues during a time when growth seemed infinite. As Catherine LaCroix argues, no one desires stagnation. The cure is growth. The type of growth, however, remains a point of contention. The history of land use law in this country shows that its predominant focus has been on development and its management. Traditional top-down comprehensive planning law often focused on urban infill and on fostering extra density, while minimizing creativity, due to compatibility standards and nuisance criteria. With the elimination of the Florida Department of Community Affairs and the turn to greater local home rule, creative tools like urban agriculture are now more available and frequently utilized.

Urban agriculture requires legal flexibility and adaptive planning. This “smart growth” is difficult to comprehend because it seems to combat a constantly growing consumerist society. Yet, urban farms tackle stagnation by improving the local economy and promoting sustainable urban growth that is “a goal in [itself], not as a holding strategy until it is time for residential or commercial building construction.”48 Such urban growth does not remain vulnerable to a national market, but instead, provides a reliable local product in constant local demand. Urban agriculture at a local scale production does not occur at the cost of environmental degradation, but revitalizes the urban environment.

1 Jason Jordan, A Pig in the Parlor or Food on the Table: Is Texas’s Right to Farm Act an Unconstitutional Mechanism to Perpetuate Nuisances or Sound Public Policy Ensuring Sustainable Growth?, 42 Texas Tech. L. Rev. 943, 951, n.70 (2010) (quoting Holubec v. Brandenburger, 111 S.W.3d 32, 37 (Tex. 2003)) (internal quotations omitted).

2 Id. at 951-52.

3 Joseph W. Cleary, Municipalities Versus Gun Manufacturers: Why Public Nuisance Claims Just Do Not Work, 31 U. Balt. L. Rev. 273, 277-78 (2002).

4 See Euclid v. Ambler Realty, 272 U.S. 365, 388 (1926) (“There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire, of collapse, the evils of overcrowding and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances.”) (internal citations omitted).

5 Id. at 387-88; see Sturgis v. Bridgeman, L.R. 11 Ch. 857, 865 (1879) (“A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities…. [T]he question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality.”).

6 Euclid, 272 U.S. at 387-88 (Euclid featured the most famous phrase in zoning law: “A nuisance may be merely the right thing in the wrong place, like a pig in the parlor instead of the barnyard.”).

7 Patricia E. Salkin, From Euclid to Growing Smart: The Transformation of the American Local Land Use Ethic Into Local Land Use and Environmental Controls, 20 Pace L. Rev. 109, 110 (2003) (internal citation omitted).

8 Jay Wickersham, Jane Jacobs’ Critique of Zoning: From Euclid to Portland and Beyond, 28 B.C. Envtl. Aff. L. Rev. 547, 563 (2001). In fact, “‘[i]ntricate minglings of different uses in cities are not a form of chaos. On the contrary, they represent a complex and highly developed form of order’” (quoting Jane Jacobs, The Death And Life Of Great American Cities 222 (1961)).

9 Timothy Beatley & Richard C. Collins, Americanizing Sustainability: Place-Based Approaches to the Global Challenge, 27 Wm & Mary Envtl. L. & Pol’y Rev. 193, 196-97 (2002).

10 Eliza Hall, Divide and Sprawl, Decline and Fall: A Comparative Critique of Euclidean Zoning, 68 Univ. Pitt. L. Rev. 915, 927–28 (2007) (emphasizing that under one-fifth of the U.S. constitutes “high quality farmland,” but noting that urban sprawl has eliminated such lands at a rate approaching two acres per minute).

11 See, e.g., Miami Beach v. Perell, 52 So. 2d 906 (Fla. 1951) (striking down a zoning ordinance that barred uses that were no more obnoxious than permitted uses in the district).

12 Dep’t of Agric. & Consumer Servs v. Bogorff, 35 So. 3d 84, 89 (Fla. 4th DCA 2010) (internal citations omitted).

13  he court emphasized a savings clause at Fla. Stat. §403.191 (2013), which stated Ch. 403 provided “additional and cumulative remedies” to those available in, inter alia, nuisance.

14 Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029, 1036-37 (Fla. 2001) (The court further explained: “[A] public nuisance may be classified as something that causes ‘any annoyance to the community or harm to public health.’ As a result, something may constitute a public nuisance under chapter 823 although it may technically comply with existing pollution laws.”) (emphasis in original) (internal citations omitted).

15 Orlando Sports Stadium, 262 So. 2d at 884 (citing Holley v. Adams, 238 So. 2d 401 (Fla. 1970)).

16 Id. at 884 (internal citations omitted).

17 Id. (citing 66 C.J.S. Nuisances §26) (“It has been said that an attempt to enumerate all nuisances would be almost the equivalent as an attempt to classify the infinite variety of ways in which one may be annoyed or impeded in the enjoyment of his rights.”).

18 Laws of Fla. Ch. 72-295, codified at Fla. Stat. Ch. 186.

19 Laws of Fla. Ch. 75-257, codified at part II of Fla. Stat. Ch. 163.

20 Thomas G. Pelham, William L. Hyde, & Robert P. Boules, Managing Florida’s Growth Toward an Integrated State, Regional and Local Comprehensive Planning Process, 13 Fla. State U. L. Rev. at 518 (1985).

21 Fla. Stat. §§163.3194, 163.3201 (2013).

22 Environmental Land Management Study Commission Final Report at 18, et seq. [hereinafter ELMS I Report]; Pelham et al., Managing Florida’s Growth Toward an Integrated State, Regional and Local Comprehensive Planning Process, 13 Fla. State U. L. Rev. at 541-43 (1985).

23 Laws of Fla. Ch. 78-287, §§5-10 at 814, 816.

24 Laws of Fla. Ch. 80-315, §3, 1370 at 1372-75.

25 ELMS I Report at 1-4.

26 Laws of Fla. Ch. 84-257.

27 See generally Robert Rhodes & Robert Apgar, Charting Florida’s Course: The State and Regional Planning Act of 1984, 12 Fla. State. U. L. Rev. 583 (1984).

28 Laws of Fla. Ch. 85-55.

29 Id. at 211.

30 Id. at 215.

31 See, e.g., Wickersham, Jane Jacobs’ Critique of Zoning: From Euclid to Portland and Beyond, 28 B.C. Envtl. Aff. L. Rev. at 520 (2001) (citing John Degrove, Land, Growth & Politics at 94-97, 124-29, 174-75 (1984)).

32 Craig Pittman, Powerful Interests Checkmated Florida’s Growth Management Agency, Tampa Bay Times, May 21, 2011, available at (A good brief discussion of both sides’ positions); Department of Economic Opportunity, SB 2156: Reorganization, Joint Progress Report (Aug. 15, 2011) (The new agency’s mission statement showed the change from centralized planning to a pro-business goal: “The mission of the Department of Economic Opportunity is to assist the [g]overnor in working with legislative leaders, state agencies, business leaders, and economic development professionals to formulate and implement clear and consistent policies and strategies to promote economic opportunities for all Floridians. The challenge for the [d]epartment is to integrate the state’s economic development goals and policies, workforce development, community planning and development, and affordable housing.”).

33 Winward Marina, 743 So. 2d at 637.

34 Id. at 638 (internal citation omitted).

35 Prior, 180 So. at 355 (quoted by Windward Marina, 743 So. 2d at 639).

36 See Fla. Stat. §823.14(2) (2013). While the statute has been amended several times, today it states the following legislative purpose: “[E]ncouragement, development, improvement, and preservation of agriculture will result in a general benefit to the health and welfare of the people of the state.”

37 See, e.g., Letter from Joe Bell, president of the Florida Chapter of the American Planning Association.

38 Id. For instance, Joe Bell asserted: “Unfortunately, [Senate Bill] 1712 is too broadly written, its terms so vaguely defined, and has [sic] no size limitation provided for the enclave, that rather than achieving the intended purpose, it will encourage the premature conversion of hundreds of thousands of acres of agricultural lands and promote urban sprawl, at great inefficient cost to local governments and with potential damage to the natural environment.” It is noteworthy that Bell implies that agriculture has a greenspace and natural resource benefit in alleging that conversion has a “potential” to “damage…the natural environment.”

39 Governor Jeb Bush, Governor’s Veto Message, S.B. 1712 (July 8, 2004).

40 Id.

41 Fla. Const. art. VIII, §2 (states in pertinent part: “(b) POWERS. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal services except as otherwise provide by law….”); Fla. Const. art. V, §3(b)(3); Fla. Stat. §166.021 (2013) (implements the constitutional provision: “(4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the constitution. It is the further intent of the [l]egislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited.”).

42 Robert L. Nabors, Florida Home Rule Green Book 48 (2011) (citing City of Miami Beach v. Rocio Corp. , 404 So. 2d 1066, 1070 (Fla. 3d DCA 1981)).

43 Id. at 49 (citing State v. City of Sunrise, 354 So. 2d 1206, 1209 (Fla. 1978)); see City of Boca Raton v. Gidman, 440 So. 2d 1277, 1280 (Fla. 1983) (framing the two-part test as follows: “[W]henever a municipality exercises its powers, a two-tiered question should be asked. Was the action undertaken for a municipal purpose? If so, was that action expressly prohibited by the constitution, general or special law, or county charter?”) (emphasis in original) (internal citation omitted).

44 William Lampkin, The Chicken and Egg Question, Quality Cities 50 (2014); Scott Johnson et al., Chickens Now Legal on Property in Jacksonville, News4Jax, Jan. 21, 2014, available at

45 WKMG Orlando, Orlando Approves Backyard Chicken Program Expansion, Apr. 9, 2013, available at; Mark Schlueb, Orlando Moves Toward Allowing More Backyard Chickens, Orlando Sentinel, Mar. 27, 2013, available at 2013-03-27/news/os-orlando-urban-chickens-20130327_1_backyard-chickens-urban-chickens-three-hens.

46 Orange County Urban Chicken Program Voted Down, WFTV.com9, Aug. 6, 2013, available at; Lacey McLaughlin, Port Orange Says No to Backyard Chickens, The Daytona Beach News-Journal, May 25, 2014, available at NEWS/140529637.

47 See Joey Flechas, Miami Shores Sued for Ordering Couple to Remove Vegetable Garden, The Miami Herald, Nov. 19, 2013, available at article1957613.html.

48 Catherine J. LaCroix, Urban Agriculture and Other Uses, Remaking the Shrinking City, 42 Urban Lawyer 225, 236 (2010).

Michael T. Olexa is a professor and director of the University of Florida, Institute of Food and Agricultural Sciences Center for Agricultural and Natural Resource Law.

Sidney F. Ansbacher practices in the Jacksonville office of Upchurch, Bailey & Upchurch. He is a former chair of the Environmental and Land Use Law Section.

The authors thank Kathleen Maurer for her assistance in writing this article.

This column is submitted on behalf of the City, County and Local Government Section, Dana Lynne Crosby-Collier, chair, and David Miller, editor.

Environmental & Land Use Law