Tuesday, May 20, 2014
This academic year, my Economic Development Clinic at the University of Idaho College of Law's Boise campus worked with several counties at the rural-urban interface of Idaho's growing cities. These counties were trying to find ways to help small farms stay in business despite urbanization's encroachment into country life. After several listening sessions, it became clear that there was substantial interest in agritourism among the small farmers in these counties. In response, the Clinic set about to investigate what kinds of legal structures could be put in place to advance agritourism in these areas.
What we found was a subject of surprising legal complexity and, moreover, a nsacent but rising tide of litigation and legislation in agritourism spurred by entrepreneurial small farmers, the rise of the food movements, and some unexpected consequences of growth in rural areas. The Clinic's 184-page report, Agritourism at the Rural-Urban Interface: A National Overview of Legal Issues with 20 Proposals for Idaho, is now available for free on SSRN. The report covers a lot of legal ground, including a detailed investigation of four existing agritourism ordinances that local governments can use as models.
In the executive summary, the report also provides 20 proposals for growing agritourism in Idaho; in fact, these proposals would apply to most states. I am reproducing them here for those across the country who might find interest in the subject:
Proposal 1. Facilitate compliance with Idaho’s Agritourism Promotion Act by providing statute-compliant signage. Idaho’s Agritourism Promotion Act provides agritourism operators with limited liability for injury or death of a participant resulting from the inherent risks of agritourism activities. However, to obtain this “safe harbor,” the agritourism operator must post a specifically-worded sign with specific visibility requirements. Virginia has a similar statute and, to assist agritourism operators in obtaining the safe harbor, a Virginia agritourism operators’ group offers a statute-compliant sign that agritourism operators can purchase. Idaho, or an agricultural trade group in Idaho, should consider printing and offering, at cost, a similar statute-compliant sign.
Proposal 2. Consider state statutes and regulations that would permit agritourism-promotion signs on at least state highways and, where possible, federal highways. In the Clinic’s discussion with agritourism providers, a recurring request was for the ability to advertise on the state and federal highways. Georgia and North Carolina currently allow signs on highways and provide models for statutes and regulations that would assist adoption with such agritourism-promotion signage in Idaho.
Proposal 3. Consider starting a state-sponsored agritourism fund modeled on the agritourism revolving trust fund of Oklahoma. Oklahoma’s revolving fund receives appropriations from its state department of agriculture and fund expenditures are authorized and approved by a majority vote of the five members appointed to and constituting a board that oversees the fund.
Proposal 4. Consider starting a statewide agritourism operator-funded marketing fund, such as the ones started by Mississippi and Missouri. In Mississippi, the state created a fund within the state treasury for the benefit of agritourism, which is funded by an annual fee (currently $50) required of all agritourism professionals, which is placed in the fund and used to promote and publicize agritourism in the state. Missouri operates a similar state fund to promote agritourism that is funded through registration fees (currently $100).
Proposal 5. Draft an agricultural building and structures code that prioritizes both safety and access to authentic rural experiences. One of the toughest challenges for beginning agritourism operations is re-purposing existing agricultural buildings—most of which are exempted from building code requirements—to meet building code standards for public access. The state should consider drafting a building code that would provide guidance in assisting agricultural buildings being re-purposed for agritourism uses. Such a code might also consider specific provisions for historic agricultural buildings and structures.
Proposal 6. Consider a statute authorizing agricultural promotion districts as Texas has done. A Texas statute permits the creation of special districts called “agricultural promotion districts,” which have the dual purposes of conserving and developing natural resources of the state and also creating economic development opportunities for agricultural enterprises, facilities and services of the district. In Texas, the district permits the assessment of special fees upon those in the district. Such a district permits those who wish to promote agritourism in their rural communities to provide themselves a revenue source for marketing similar to how business improvement districts operate within cities.
Proposal 7. Align definitions of agriculture in state statutes to ensure that they are properly reflecting the state’s intents with regard to agritourism. As this report details, several of Idaho’s agricultural statutes, such as its right-to-farm law, are ambiguous in their application to agritourism activities. The State may wish to consider amending some of these statutes to explicitly include, or exclude, agritourism from the definition of “agriculture” in its state statutes.
Proposal 8. Create a statewide agritourism working group to form regional agritourism-based economic development models based on “bottom up” planning. The State should consider a standing working group on agritourism, such as Virginia’s On-Farm Activities Working Group. Further, the State should consider a “bottom up” plan for using agritourism as a means of economic development in rural communities. A model for such planning could be Colorado’s Blueprint, which in 2011 sought to evaluate the weaknesses of the state’s economy generally. In turn, a state team facilitated an economic development planning session in each of the state’s counties, which were then rolled up into fourteen regional plans that, in turn, were rolled up into a comprehensive, statewide economic development plan. The viability of agritourism is tied to its local character, and it makes sense that agritourism planning should arise from a local source.
Proposal 9. Encourage local governments, and counties in particular, to create permitting systems that rationalize agritourism’s relation to local government regulation. A permitting system does not mean more regulation, necessarily; a good permitting system that assists farmers foresee the types of regulations necessary to change from agricultural to agritourism uses can help private parties better plan for the transition and leads to more transparency and accountability. This report provides four model ordinances from Thurston County, Washington; Weber County, Utah; Tehama County, California; and Lawrence County, South Dakota to provide a range of options for local governments to consider.
Proposal 10. Provide Idaho agritourism operators assistance in seeking federal program dollars that would assist agritourism’s growth in the state. The Agricultural Act of 2014 (the “2014 Farm Bill”) presents new opportunities for economic development through agritourism. First, the 2014 Farm Bill continues USDA Rural Development programs that support investments in the economy through grants, loans and loan guarantees. The 2014 Farm Bill reserves 10% of certain programs for regional, long-term investments to better promote economic development through regional planning. Also, the 2014 Farm Bill provides $30 million annually to the “Farmers Market and Local Food Promotion Program.” In addition to providing funding for rural development and regional food systems, the 2014 Farm Bill also provides significant funding for organic farmers. First, the 2014 Farm Bill provides for $57.5 million to help growers make the transition from conventional to organic farming. In seeking to attract farmers to go organic, USDA is expanding organic price elections so that crop insurance will cover more crops. Additionally, the 2014 Farm Bill provides for mandatory funding, $11.5 million annually, to assist organic producers and handlers with the cost of organic certification. Further, the Bill provides for a $100 million, over the life of the Bill, for the Organic Agriculture Research and Extension Initiative; USDA’s primary organic research and grant program. These are just some of the federal programs that could assist agritourism operators. The State should consider assisting such smaller operators in seeking out funds such as these.
Proposal 11. Provide more opportunities for small farmers to feed institutional communities, such as schools, universities, prisons, and hospitals, which are operated by the state or in which the state has an interest. It was only a generation ago that local farmers routinely provided staples, such as eggs, butter, and meat—to the pantries of state and local institutions, such as the local school. The mid-century federalization of some of these programs, such as school lunches, encouraged institutions to receive supplies from industrial producers. Now, the trend is going the other way. Idaho has already moved in this direction with its Idaho Farm to School program. This is a commendable effort, and it should be built upon and furthered to other institutions throughout the state. Since 2013, USDA has invested nearly $10 million in Farm to School grants nationwide that support schools as they purchase from local or regional sources. Recently, the national Farm to School Program put seven new Farm to School Coordinators on the ground in regional offices to help build relationships between small and mid-sized farmers and ranchers. One of the biggest priorities for this program is to create more opportunities for small and mid-sized livestock and poultry producers. Idaho should further pursue such opportunities.
Proposal 12. Consider approaching agritourism planning through a foodshed approach to funding agritourism. Farm and city used to be separate spheres; no more. The urban environment has invited the country into its midsts: many urbanites want chickens in their back yards and gardens in their front yards. Urbanites flock to farmers’ markets. At the same time, many urbanites also want a closer connection to rural life and, especially, an opportunity to experience how food is made. This concept is increasingly referred to as a city’s “foodshed.” Idaho should embrace this concept—in which there is a continuum of agricultural planning from the urban to the rural, from farmers’ markets in cities and zoning for urban animal production, to agritourism activities that permit urbanites to experience the farm and which also offer up secondary income to small farmers.
Proposal 13. Consider how agritourism could be used to preserve the best farmland. Most cities were built adjacent to the best farmland in a region. As cities grow, their development consumes that farmland. Many of Idaho’s cities, especially in the Treasure Valley, are exploding with growth and, at the same time, paving over much of the State’s best farmland. The COMPASS 2040 Communities in Motion vision map illustrates how, in just a few short decades, the drive from Boise to Caldwell will likely be completely paved over. If Idaho wants to save any of the best farmland in the Treasure Valley, the time to act is now. Promoting agritourism activities on the best farmland can be one way of helping retain farmland uses, both for purposes of maintaining food security for the region, but also as a way to provide a rural cultural resource for the new development of the valley.
Proposal 14. Consider a tax credit, similar to Kansas' five-year tax credit for 20% of the liability insurance paid by an agritourism operator, to encourage agritourism operations. Many states, such as Idaho, already provide some liability protection to agritourism operators. Kansas’ tax credit further incentivizes agritourism by assisting with insurance premiums during the beginning years of an agritourism operation.
Proposal 15. Consider a statewide registration of agritourism operations, such as required by Louisiana, to permit more coherent and knowledgeable marketing of the State’s agritourism operators. Registration would permit the state to then better assist the growth of an agritourism industry. For instance, it could assist with the development of marketing, such as “apps” or other social media that could facilitate customers visiting agricultural areas.
Proposal 16. Consider starting an unclaimed property agritourism promotion trust fund. Such a fund could be modeled on Colorado’s Unclaimed Property Act, which creates an unclaimed property tourism promotion trust fund from which 10% of the interest earned is used to promote agritourism.
Proposal 17. Consider adding “culinary interests” to the existing Idaho Agritourism Promotion Act, as well as future agritourism legislation, as Colorado has done. Agritourism aligns well with the “food movement,” which prioritizes locally grown and organic fruits, vegetables, and meats, as well as artisanal food products. Agritourism capitalizes on this movement through events such as farm-to-fork dinners, wine tasting rooms, and cooking classes in inspiring rural settings.
Proposal 18. Consider creating an agritourism division within a state agency, or as a working group between state agencies. Kentucky created a Division of Agritourism in its Office for Agricultural Marketing and Product Promotion to develop a “statewide master plan” for agritourism. As a result, Kentucky has one of the country’s most aggressive agritourism strategies, which is guided by these institutionalized state planning efforts. Such a division could be located within the Department of Agriculture; however, other state departments, such as Commerce and Labor, might also contribute substantial knowledge. It makes sense for the division to have inter-departmental reach, even if reporting only to one agency.
Proposal 19. Consider clearly permitting agritourism as a permitted use for cooperative marketing associations. Currently, cooperative marketing associations are permitted for “the production, marketing or selling of the agricultural products of its members,” a phrase which may include marketing agritourism activities. The State may wish to consider explicitly permitting the use of cooperative marketing associations for agritourism.
Proposal 20. Consider planning for agritourism as part of local governments’ agriculture component in the comprehensive planning process. Beginning in 2011, Idaho Code section 67-6508(n) required local governments to include an agriculture component in their comprehensive plans. Integrating agritourism into those agriculture components would ensure that local governments are planning strategically not only for the growth of their communities, but also for the retention of farms and growing rural amenities, such as agritourism, that so many urban residents seek.
Each proposal is more thoroughly investigated throughout the report. Appendix C in the report may also prove useful, as it provides a list of numerous agritourism resources identified by the Clinic, each typically focused on a specific region, across the country.
Many thanks for the great work of my three year-long students--Alexandra Grande, Caitlin Fuller, and Tyler Beck--who did a great deal of research for both this public report and our client-specific projects.
I welcome feedback at millers at uidaho dot edu.
Stephen R. Miller
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