Tuesday, September 6, 2016
Agritourism Acts, Zoning Issues and Landowner Liability
The turn of the calendar to September lets us know that fall is just around the corner. For some rural landowners, that means that various activities will occur where members of the public will be invited to the premises to engage in various activities such as hayrides, corn mazes, and similar activities, often for compensation. When others come onto the farm or ranch, that raises the prospect of injury and potential liability.
In recent years, numerous states have enacted agritourism legislation designed to limit landowner liability to those persons engaging in an “agritourism activity.” Typically, such legislation protects the landowner (commonly defined as a “person who is engaged in the business of farming or ranching and [who] provides one or more agritourism activities, whether or not for compensation”) from liability for injuries to participants or spectators associated with the inherent risks of a covered activity. The statutes tend to be written very broadly and can apply to such things as mentioned above - corn mazes, hay rides and even hunting and fishing activities. Under some provisions, the landowner must post warning signs to receive the protection of the statute, and in some states the landowner must register their property with the state.
Generally, the state laws related to agritourism relate to financial incentives via tax credits or cost-sharing, promotion, protecting the ag real property tax classification of the property involved, or liability protection. On the tax classification issue, the Ohio Supreme Court, in Columbia Township Board of Zoning v. Otis, 663 N.E.2d 377, 104 Ohio App. 3d 756 (Ohio 1995), held that haunted hay rides on farm property did not constitute the use of land for agricultural purposes because the addition of a Halloween theme with shrieks and flashing lights was completely inconsistent with traditional agricultural activity. Similarly, in Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405 (Tenn. Sup. Ct. 2013), the Tennessee Supreme Court reversed a determination by the court of appeals that music concerts on a farm were within the definition of farm activities within the scope of the agritourism statute and were exempt from a county zoning provision. The Tennessee Supreme Court said the activity was not “agriculture” as defined by the statute. Likewise, in Forster v. Town of Henniker, 167 N.H. 745 (2015), the court held that the use of a Christmas tree farm for weddings did not meet the definition of agritourism and, as a result, was not “agriculture” for zoning purposes.
On the liability issue, some state laws (such as the Illinois, Kansas, Maine and Oklahoma provisions) limit liability to situations where the landowner acted wantonly or with willful negligence, and exclude liability for injury arising from the inherent risks associated with an active farming operation. In many of the states that have agritourism statutes, the posting of specific signage is required to get the liability protection and, of course, the person claiming the protection of the statute must meet the definition of a covered person and the activity that gave rise to the liability claim must be a statutorily covered activity. Further, in some states (such as Iowa), liability release forms, at least with respect to minors, may be deemed to violate “public policy” (as decided by judges rather than the public).
In any event, it is important for landowners to become familiar with the particulars of state law.