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  • Andrea K. Marcinkus

Will the Illinois "Right to Garden" Act Take Away Some of Our Rights?


Mini Eggplants in my garden, 2019
Mini Eggplants in my garden, 2019

My intention for this week's blog post was to write about the naturally fermented mustard I have been making, ramp kimchee, or maybe the 100+ masks that I've made for people to use during the COVID-19 pandemic. But then I saw a small story about a new bill in the Illinois state legislature that got my blood boiling. Especially since we are approaching an unprecedented time with millions of Americans who are currently jobless - unemployment benefits will run out (the funding for small businesses already has) and food security might become a REAL problem in American. This bill is taking precedent, and I hope that if you care about the future of gardening in this state that you will read this post, click on the citation links, and take action now.. We can always get back to the mustard.


In a short amount of time, we have seen America's industrialized food machine turned on its head. Because restaurants and hotels have stopped (for the most part) making food, and exports of food products have slowed, farmers are forced to dump millions of gallons of milk. Eggs are being destroyed, poultry flocks culled, and veggies plowed under. Cattle ranchers are seeing all-time low prices for beef, while consumers are seeing record high prices at the grocery store. Meat processing plants are closing because their handlers are testing positive for COVID-19. Personal food scarcity, due to the unemployed or underemployed millions, coupled with rising prices might be a very real thing in our near future.


A great solution to this is gardening. We have a strong history of gardening in America. From the origin of mail-order seeds for home gardens to the Victory Gardens of WWII, gardening has always been an important part of how we live. (Check out this photo-rich timeline of Gardening in America by the Smithsonian if you would like an overview.) But in recent years, gardening has become a subversive activity: seed-to-table movement is subverting big-agriculture, seed-saving as an act of preserving the genetic and cultural heritage in our food, the guerrilla gardening movement (an urban movement to convert urban unused spaces into gardens to grow food or to beautiful the landscape.) If you have the time to listen to an 18 minutes TED-talk, I highly recommend Roger Doiron's "A Subversive Plot" from 2015.


So what does this all have to do with an Illinois Bill? The bill's intention was to codify into law the fundamental right that we Illinoisans have to garden, but some of its language is truly problematic - it will put limits on our rights as gardeners in this state. And that is real problem. I'm going to first give you the history of this bill (because, at its heart, I believe it comes from people trying to do the right thing), we'll look at the wording of the bill, and then I'll give you some resources to reach out to your representatives. Just because we are in a pandemic, doesn't mean we shouldn't still engage with our state reps! In fact, we should be reaching out to them more than ever.


History

The origin of the bill begins in Elmhurst, Illinois (a suburb of Chicago). A few years ago, one of its citizens erected a hoop house (a temporary green house to extend the growing season), and the city demanded she remove it. With the help of a local gardening store, she fought the "code violation" at the local level. Frustrated by slow moving local government, they decided to take it up to the state level, as they believed that gardening is a fundamental right. You can read more details about the local fight in this Telegraph article.


The dispute become drafted in SB 1675 by the Illinois Environmental Council. On 2/6/2020, HB4704 was filed with the clerk in the state House, and on 2/18/2020 had its first reading. An amendment was filed on 2/24/2020, which changed SOME of the wording, and the bill was sent to the City & Rules Committee this March. It has since been delayed because of COVID-19, but that doesn't mean it is stalled forever. You can follow the history of the bill on the Illinois General Assembly site here.


Right to Garden Act Contents and Language

I will be referring to the most recent amended changes of the HB4704, which you can read on the General Assembly site.


Before I get to the negatives, I want to be clear, that this is, at its heart, a good bill. Its trying to make sure that people have the right to garden on their property. And it includes gardening of " produce, flowers, herbs, fungi, or grains." In a world where gardening has become a subversive act, protecting the rights of gardeners is paramount.


Let's look at some of the issues.


First, let's look at this line:

“when done so for one’s own consumption and enjoyment, should not be infringed upon by the State or any unit of local government.”

Defining a garden's purpose for "one's own consumption and enjoyment" is problematic at its core. What if you intent to share the literal fruits of your labor with your neighbors? What if you sell or give away excess produce/cut flowers at the local farmer's market, a table in front of your yard, or as donations to a food bank; what if you talk about your garden on a blog that is income-generating? Certainly most home gardens will not have such an abundance to create full-time agricultural employment, and while the intent of this line (which appears twice) is to make a distinction from commercial agriculture, it creates a opening to have our gardens regulated in a way they could not be before this bill, should it be made a law.


Next, let's look at these two lines:

"does not include an investment property or residence other than a primary residence”

and

“does not include residential property taken in whole or in part as collateral for a commercial loan.”

The first question that comes to mind is "Why should any of that matter?" If a family decides to rent out its second home for additional income, but they still maintain a garden on a small space of the land they would be subject to regulation. If a local restaurant grows an herb garden to supplement the kitchen in the summer, it would be subject to regulation. If a local dry cleaner takes out a loan against his home to grow his business, his home garden is now subject to governmental regulation? These are all scenarios that I know are happening locally. What protections, then, does this law give them? Why have these lines in the bill at all? They should be removed.


Finally, here is the biggest section with issues in this bill:

“However, this does not preclude the State or a unit of local government from adopting statutes or regulations pertaining to: restrictions on water use during drought conditions; existing or future adoption of property set-backs; maximum lot coverage; utility safety; fertilizer use; control of invasive species; a substance regulated under the Illinois Controlled Substances Act, the Industrial Hemp Act, or the Cannabis Regulation and Tax Act; or any other regulation that does not have the effect of prohibiting gardens.”


Some of these seem reasonable, like not growing cannabis and utility safety, but let's pick the problem language apart, one section at a time.


Water Use

Water-use during drought: this seems like a good idea. We are already familiar with summer suburban lawn watering restrictions. However, this bill does not define "water-use." We are assuming it means municipal-delivered water, but without stating that, it means that the state or local government is free to dictate any watering done on our property from any source, like rain water. Many home gardeners use the collection and storage of rain water to water plants during dry times. This bill opens up a slippery slope of water rights. Think that wouldn't happen? Look at the rain water collection regulations in a number of states, including Illinois. This language should be amended to only include municipal-delivered water. Furthermore, for food gardens only, even municipal-delivered water restrictions have no place as it relates to people growing their own food.


Community food garden, Marie Wilkins Food Pantry, Aurora, IL
Legal Status of Rainwater Collection in the US by State

Property setbacks and maximum lot coverage

This language is problematic because it can be interpreted in so many different ways, and can be used by local governments in very restrictive ways. The language should be restructured so the intent is crystal clear.  In my opinion, my property is my property and as long as I am gardening on “my” property, we don’t need the state or local government telling us where our garden must be, any more than telling us how big the garden can be on our property. Some municipalities have restrictions on how high the vegetation can be in your front lawn - as long as those height restrictions are respected, what difference does it make if you are growing a mono-culture lawn or a herb garden? This might be different if you choose to live an a subdivision with a restrictive HOA, but if you live in one of these areas, it is a choice.


Fertilizer Use

Why are they restricting all fertilizer? They way it is currently written, fertilizer is not defined, and needs to be removed. Composted kitchen scraps are fertilizer! There are all types of natural and safe fertilizers gardeners use. By allowing local government to have a say in that needs to be cleaned up dramatically.  As it stands, that provision needs to be removed or amended for its actual intent.


Invasive Species

I understand that we do not want invasive plants to escape into the wild. Why is it in this bill? We already have a law for this and noxious weeds on property laws. Including this phrase is redundant.


Don't like it? Here is what to do.

As a citizen of Illinois, here is your chance to make your voice heard before the bill is made into a law. Your state representatives are interested in hearing your voice. If you don't let them know what you are thinking about, they will have no way of knowing. SPEAK UP NOW to maintain the rights that this bill initially set up for us. Don't let it get twisted with vague or inaccurate language. Your state representative might NOT be a gardener and not know how this language could effect you should this bill become law.


Here is what you can do:


1. Contact Sonya M. Harper, the bill's original sponsor.

2. Contact any of the other sponsors on the bill, especially if they are your state representative. Don't know who your state representative is? Look it up here.

Kelly M. Burke, Maurice A. West, II, Anne Stava-Murray, Allen Skillicorn, Theresa Mah, Anna Moeller, Justin Slaughter, Marcus C. Evans, Jr., Mary E. Flowers, Rita Mayfield, LaToya Greenwood, Will Guzzardi, Edgar Gonzalez, Jr., Joe Sosnowski, William Davis, Deb Conroy, and Karina Villa.

3. Contact the members City & Village Committee. This committee is currently where the bill is for comment and review.

4. Contact your local state representative, even if they are on a co-sponsor on the bill or on the committee above. You can find who your state rep is here.

5. Share this blog post to others who are interested in our right to garden in Illinois, and encourage them to contact their state representatives.


Please feel free to use ANY of the text on this blog post to help construct your letters, emails, and phone calls. Please share this is friends and family who care about gardening and food security in our state. Let's keep our Right to Garden safeguarded!



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