Some Ordinances Should Stay Dusty

It’s been busy, and the courts haven’t provided much material for posts in the last two months.  I have a minute now, though, so it’s time to discuss the story on the front page of last Thursday’s Pioneer Press telling us about Lake Elmo’s plans to enforce a ban on “non-local produce, ” apparently including Christmas trees.  The way the news stories present it, Lake Elmo has an ordinance banning the sale of non-Lake Elmo produce, which has been on the books since 1980 but has been overlooked for the last 29 years.  City officials appear in the story making blatantly protectionist statements.  Having been awakened to the issue by a request to expand a parking area, the City plans to put the restriction into play starting Jan. 1.

The news stories don’t mention this, but it’s not even remotely legal for Lake Elmo to establish a trade restriction like that.  The Christmas trees of at least one of the sellers quoted come to his Lake Elmo location from Wisconsin.  Two words: “interstate commerce.”  The State doesn’t have the power to make this sort of regulation, so it’s a safe bet that Lake Elmo also lacks that authority. 

Of course, the “Lake Elmo ordinance” isn’t a blatant standalone trade restriction.  It’s a wrinkle in its zoning code.  In some of its agricultural districts, Lake Elmo allows “Agricultural Sales Businesses” as a permitted use.  Flip back to the beginning of their code book, and you’ll find “Agrigultural Sales Business” defined:

AGRICULTURAL SALES BUSINESS.  The retail sale of fresh fruits, vegetables, flowers, herbs, trees, or other agricultural, floricultural, or horticultural products produced on the premises.  The operation may be indoors or outdoors, include pick-your-own opportunities, and may involve accessory sales of unprocessed foodstuffs; home processed food products such as jams, jellies, pickles, sauces; or baked goods and homemade handicrafts.  The floor area devoted to the sale of accessory items shall not exceed 25% of the total floor area.  No commercially packaged handicrafts or commercially processed or packaged foodstuffs shall be sold as accessory items.  No activities other than the sale of goods as outlined above shall be allowed as part of the AGRICULTURAL SALES BUSINESS.

So the reality is that Lake Elmo has an ordinance on the books preventing importation of product from any source, not just banning “foreign” products while allowing free trade in Lake Elmo-grown produce.  So the problem is not that some of these tree re-sellers are bringing in the wrong product, it’s that they shouldn’t be in business at all.  Given how long some of these businesses appear to have been in place, there will be problems.  First, there’s non-conforming use protections: the farm featured in the article is described as “34-year-old,” pre-dating the ordinance.  If it was perfectly legal to sell imported trees in 1979, and this farm was doing that, it really doesn’t matter what Lake Elmo’s zoning code says today.  Then, there’s what might come up in the name of compromise: at the end of the article, a City official throws out the idea of a new license for selling imported products, or a percentage cap on non-local product.  These proposals are straight trade regulations which the City lack the power to enact.  The commerce issue remains a threat even without a compromise, since the definition really only distinguishes between “legal” ag sales businesses and “illegal” ones on the source of their merchandise.  And since Minnesota farmers already have a state constitutional right to sell the produce of their own farm without a license of any kind, the only places that will require a license are the importers.  There doesn’t appear to be an easy way out of this – either eliminate the requirement, or drive out anyone importing produce.  The title gives away my opinion, of course, but that’s the question facing Lake Elmo officials.


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