San Diego Killed Roadside Gardening Before it Began

• By Claude Thompson
• April 9, 2024

Despite San Diego’s impeccable climate for growing food, there aren’t a lot of places to do it.  

The lucky ones have yards or a sunny balcony, maybe a forgiving or apathetic landlord or homeowner’s association that permits planting around their properties. The few community gardens in San Diego take root in parks or on scarce vacant plots of private land. 

There is some overlooked fertile ground left: Strips of soil that run along sidewalks, roads, medians and underneath power lines – otherwise known as the public right of way. But the San Diego City Attorney — perhaps inadvertently — just invalidated that land for public gardening.  

“A community farm is not an allowed use of a public right of way,” wrote City Attorney Mara Elliott in a Feb. 12 letter.  

How we got here: Elliott was responding to tenants’ rights advocates protesting a recent incident where refugee farmers were kicked out of their community garden for refusing to pay dues to a nonprofit that claimed management of the property.  

Philip Salata at inewsource covered the emerging fight between the City Heights Community Development Corporation and some farmers at New Roots Community Farm, which sits atop a channelized creek bed in the Chollas Creek neighborhood. The International Refugee Committee started the garden 17 years ago. Michelle Obama paid it a visit when she was first lady. 

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The courts are now deciding whether the nonprofit illegally evicted farmers off land which neither may have a right to. The fight between the parties got so heated, the nonprofit hired a security guard to stand watch at the farm. Eventually, Elliott weighed in after several letters from lawyers and tenants’ activists argued the city could be held liable for gardeners being thrown off the land.  

But the broader issue of whether New Roots will have to shut down completely and move off that public right-of-way is still up in the air.  

Quick land use lesson: The public right-of-way is space reserved for public travel, like roads and sidewalks. Later the definition expanded to include the right of goods and services for the public benefit – like water and gas lines, power lines and sewage pipes – to be transported across private land. 

The city of San Diego manages thousands of miles of rights-of-way in the form of streets, sidewalks and alleyways. As the effects of human-caused global warming have crystallized, many progressive urban cities are reimagining their rights-of-way, prioritizing food access and re-greening paved surfaces to combat heat. San Diego doesn’t seem to be following suit.  

Omar Brownson of the Los Angeles Community Garden Council told Voice of San Diego most of the 47 community gardens they help manage exist on public easements, including gardens built on strips of land running below power lines.  

The city of Chula Vista is converting an entire city street into playgrounds, a community garden and picnic area. The city of Saint Paul, Minnesota recently passed an ordinance allowing property owners to plant gardens along boulevards in the public right-of-way between their property line and the sidewalk.  

In her letter to farmers, Elliott refers to a 2014 memo written by a former San Diego City attorney distilling what existing law said about what can or can’t be done on these publicly-managed lands. 

“Although there is no clear statutory scheme that governs lawful uses of the public right-of-way, courts have moved over time towards a flexible approach to allow for developments in technology and transportation,” wrote then city attorney Jan Goldsmith.  

In other words, we’re not totally sure what’s allowed and what’s not. So we’re going to rely on whatever the courts have said during past lawsuits on the issue. Except, none of those lawsuits had anything to do with gardening. The cases that define what’s allowed involve suits between railroad or energy companies trying to expand across the developing West, sometimes building tracks or gas lines without prior consent from the landowner.  

As far back as 1894, the courts said streets and highways should be subject to “all the varied wants of the public and essential to its health, enjoyment and progress.” Later that thinking narrowed to a three-part test, called the Bello test, to determine what a right-of-way could be used for: Does it transport something? Does it serve the public interest? Does it endanger a nearby property?  

Elliott’s office declined to elaborate further on how community gardens fail the test in response to questions from Voice of San Diego. The office also declined to say whether the City Council had the authority to add or remove uses to public rights-of-way. A statement from Elliott’s Office suggested the farmers hire an attorney to explore whether they have additional rights to the property they’ve farmed for so many years. But that doesn’t answer whether future community gardens could be built along city streets, alleyways and the like. And whether current ones, like New Roots, is safe.

San Diego passed some laws along with its plans to combat climate change that challenge traditional uses on rights-of-way. In 2022, the city added a land use called “placemaking” – projects that “enhance the pedestrian or bicycle travel experience.” Those placemaking projects must, again, constitute as a lawful use of the public right-of-way, which according to Elliott doesn’t include community gardens.  

“To me, the idea of placemaking is innovation, the idea that you’re trying to use spaces to make a sense of community,” said Julie Ralston Aoki, director of healthy eating and active living at Mitchell Hamline Public Health Law Center in Minneapolis.  “To me that means the city’s contemplating creative uses of their rights-of-way.”

It’s clear that for the Chollas Creek community adjacent to the farm, the New Roots property acts much like a park – a quite space for neighborhood gathering.  

One Friday in March, neighbor children played a game of soccer in the dusty garden yard in front of a sign that read New Roots Welcomes First Lady Michelle Obama, who visited the farm while campaigning against childhood obesity in 2010. Chickens clucked against the din of traffic along adjacent Chollas Creek Boulevard, the sounds and smells of the road dampened by the thick green of garden plots lined with bamboo and other trees.  

The farmer fighting her alleged eviction, Fatima Abdelrahman, a Sudanese refugee, told me she lost one of her sons to a shooting in 2020. His gardening glove still hangs where he left it the day he was killed, she said. 

“My heart is always here. I’m 24 hours on this farm because if I didn’t come to the farm, and see his glove, I feel really sick,” she said. “He is inside (the garden).”  

She got a restraining order against the City Heights Community Development Corporation in order to re-enter her garden plots as her allegations that she was illegally evicted work its way through the courts. The nonprofit corporation didn’t return a request for comment.  

In another letter to activists, Elliott recommended the farmers contact their city council representative or the mayor’s office to explore rezoning the land, another way of designating for what purpose land can be used. City maps show the New Roots fertile crescent is zoned for residential use, though there are no houses on the property.  Or, the city could give up their claim on the land as a right-of-way. But, that’s a policy call which the mayor or City Council would have to pursue, Elliott’s Office wrote me.

Council President Sean Elo-Rivera’s office sent me a written statement saying he supports community gardens and that he’ll work “to support efforts to ensure these beneficial spaces continue to exist in and around (District 9) and create more of them whenever possible.” 

So, TBD, on the fate of New Roots and other streetside gardens.  

Source: voiceofsandiego.org