A bill waiting in the Rules Committee of the Florida Legislature may end one of the more bizarre powers of local government, the prohibition of vegetable gardens on residential properties.
The potential of Senate Bill (SB) 82 passing grew with the recent ruling by Florida’s 3rd District Court of Appeal, favoring the City of Miami Shore’s ban on residential vegetable gardens.
That court ruling meant Hermine Ricketts and her husband Tom Carroll were breaking Miami Shores city ordinances by growing edible plants like Asian cabbage and tomatoes in their front yard. The city ordinance empowered the city to fine residential owners $50 a day for violations.
Ricketts and Carol unsuccessfully sought to have Florida’s Supreme Court review the Feb. 9, 2018, decision, but now the Legislature is again taking up the issue.
Richard Sarafan, city attorney for the Village of Miami Shores, argued the town of fewer than 11,000 people has the right to brandish authority over design and landscaping in order to protect property values and minimize and reduce conflicts among various land use. Sarafan also said Miami Shores needs to protect the “look of the village.”
Sarafan said any other decision by the court would pave the way for “total pandemonium.”
The homeowners, who opted to place their edible plant production in the front yard rather than in a north-facing backyard, were represented in court by the non-profit Institute of Justice (IJ). Ari Bargil, an IJ attorney, questioned why the local government should care whether a homeowner opts to go with edible rather than ornamental plants.
“How can the government tell citizens what kind of plants they want to grow?” asked Bargil.
The municipality’s stand regarding the cultivation of edible plants over other choices is not uncommon.
Nor is the issue a new one for the Flordia Legislature. SB 82 would probit a county, municipality, or any other subdivision of the state from regulating vegetable gardens on residential properties. If approved, it would void any local ordinances or regulations regarding gardens on residential properties and make them unenforceable.
SB 82 would default to the Florida Constitution with its right to privacy taking precedent.
Cities and counties in Florida do have broad authorities to legislate, but must do so consistent with state law.
The present Miami Shores roughly corresponds with the original “Biscayne” neighborhood of the City of Miami. It became independent during the Great Depression.
Residents of Miami Shores challenged the constitutionality of the zoning ordinance prohibiting growing vegetables in their front yards. The city fined them $50 a day. Residents claim the ordinance violated their constitutional rights to acquire, possess and protect their property and their right to privacy.
“In its opinion, the Court held that even constitutionally protected property rights are not absolute and are subject to the fair exercise of the State’s powers including the power to promote the general welfare of the people through regulation,” says the Florida Legislature’s report on HB 82. “As a result, using a rational basis standard of review, the Court found that the ordinance was rationally related to the Village code’s design standards and landscaping regulations.”
The report said it was on that basis that the ordinance was upheld and the prohibition on edible plants remains in force. The report says HB 82 would prohibit local governments from regulating vegetable gardens while leaving them with control over water and fertilizer use and control of invasive species.
The bill would encourage the development of sustainable cultivation of fruits and vegetables “at all levels of production.” The Florida Senate Community Affairs Committee sent SB 82 to the Rules Committee on a 5-0 vote. It is scheduled to be heard by the Local, Federal and Veterans Affairs Subcommittee on Jan. 23.
Interim committee work in Florida is in advance of a March-to-May regular session of the Sunshine State’s legislative session.
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