What is “Agriculture” For Purposes of Agritourism?

Overview

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 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.  There’s a lot packed into that definition, and unpacking it is not the purpose of today’s post. 

What today’s post takes a brief look at is one aspect of agritourism statutes – the extent to which the statutes can be used to exempt activities from county zoning.  Indeed, that was the focus of a recent court decision in North Carolina.

In General

State agritourism statues tend to be written very broadly and can apply to such things as corn mazes, hay rides and even hunting and fishing activities.  Under the Maine statute, for example, inherent risks associated with being on an active farm include hazards from the natural surface and subsurface conditions of land, vegetation, and waters; the behavior of wild and domestic animals; ordinary dangers of structures and equipment used in farming and ranching; and potential injuries caused by the participant’s or others’ failure to follow instructions given or in failing to exercise reasonable caution while engaging in activities.  Maine Rev. Stat. Title 7, Part 1, Chapter 8-E, Section 251, Subsection 5.

Quite often, 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.  But, to get the protection of the statute the use of the land must be for agricultural purposes.  That’s particularly the case when county zoning rules are implicated – as they were in a recent North Carolina case. 

Recent Case

In Jeffries v. Harnett County, No. COA17-729, 2018 N.C. App. LEXIS 494 (N.C. Ct. App. May 15, 2018),  a property owner operated a sport hunting business on the their 12-acre parcel.  The business activities included shooting ranges, 3-D archery courses, clay targets and pistol pits. Initially, the defendant raised fowl on the property for controlled hunting. Over time, however, the business evolved into a multi-function facility.

Adjacent landowners wrote to the county to inquire if the defendant was exempt from zoning as an “agritourism” business. The county zoning board responded that the ranges and controlled hunting were agritourism and, as such, were exempt from county zoning. The neighbors appealed to the County Board of Adjustment which upheld the zoning authority’s decision. Over the next several years, litigation ensued involving the issue of which activities on the land constituted agritourism that were exempt from county zoning. Ultimately, the matter came before the appellate court which determined that the various activities on the farm did not constitute “agriculture” and, therefore, were subject to county zoning. Being “agriculture” was a precondition to being an agritourism activity.

Specifically, the appellate court determined that the hunting-associated activities were not agritourism and were, therefore, not exempt from county zoning.  The mere fact that the activities occurred on agricultural land was not enough for the appellate court to conclude that the hunting business qualified as agritourism. The governing statute (N.C. Gen. Stat. § 153A-340(b)(2a)), set forth the definition of agritourism, mentioning “rural activities” but it did not list hunting per se. The appellate court turned to other precedents to determine if rural activities included hunting.

Prior case law held that domestically raised animals for controlled hunting qualified as a rural activity, but that is as far as they went.  The cases did not extend that rationale to other types of shooting sports. The appellate court determined that activities that are based in agriculture and the natural use of the land qualify as agritourism.  Because shooting ranges did not produce anything “natural” from the land, they didn’t count.  Furthermore, the part of the statute explaining the inherent risk of agritourism provided only “farming and ranching” but did not include hunting in the list of dangers. The appellate court believed it was critical that the legislature left out any mention of hunting activities in the statute. Thus, shooting ranges and other hunting sports that do not include the harvesting of animals, did not fit squarely within the statute as a rural activity or a natural activity even if operated on farm ground.  That meant that county zoning applied – it wasn’t an agricultural activity and, therefore, was not agritourism.

Conclusion

Agritourism statutes are important to farmers, ranchers and rural landowners.  They do provide liability protection to activities on farm and ranch land that can generate additional income sources to farming and ranching operations.  However, the particulars of the state statue must be closely followed.  Failure to conform to the statutory requirements can result in liability exposure and having the activity subjected to county zoning because it is not “agriculture.”