Ag Zoning Potpourri

Overview

Zoning is largely a local issue.  That means that it is usually a matter of counties and towns to set zoning regulations and local ordinances.  Agricultural often receives favorable treatment – either as being exempt from county-level zoning or receiving a break on property tax, or both.

So, a key question is whether a particular activity constitutes “agriculture” such that the preferential treatment applies.  Likewise, there are many ways that owners of agricultural land can become involved in zoning disputes with respect to activities on that land.

Recent court cases on zoning matters involving agricultural land – it’s the topic of today’s post

Agritourism and Agriculture

Numerous states have enacted agritourism legislation designed to limit landowner liability to those persons engaging in an “agritourism activity.” Generally, the state laws related to agritourism use financial incentives via tax credits or cost-sharing to promote the creation of agritourism activities.  In addition, such state laws also are designed to protect 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.  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.

But, is an agritourism activity “agriculture” for zoning purposes?  To answer the zoning question requires an examination of agritourism state agritourism statutes.  Many state statutes contain language designed to protect the ag real property tax classification.  But, agritourism statutes tend to be written very broadly and can apply to such things as corn mazes, hayrides and even hunting and fishing activities.  For example, in Columbia Township Board of Zoning v. Otis, 663 N.E.2d 377, 104 Ohio App. 3d 756 (Ohio 1995), the court held that haunted hayrides 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.

Also, 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. 

In another Ohio case decided last year, the court held that weddings and receptions taking place on agriculturally zoned land did not constitute agritourism.  In Lusardi v. Caesarscreek Township Board of Zoning Appeals, No. 2020-CA-8, 2020 Ohio App. LEXIS 3288 (Ohio Ct. App. Sept. 11, 2020), the plaintiffs owned 13.55 acres of farm property that was zoned as agricultural property. The only agricultural activity that the plaintiffs participated in was growing hay. The plaintiffs filed an application to conduct agritourism activities on their property with the defendant, the township board of zoning appeals. The plaintiffs’ application sought to conduct hayrides, corn mazes, and celebratory events, such as agriculturally themed weddings and receptions.

The zoning board granted the plaintiffs application, except for the proposed celebratory events. The zoning board determined that the plaintiffs’ proposed celebratory events did not meet the statutory definition of agritourism. As a result, the plaintiffs filed an administrative appeal at the trial court level. The trial court held that the zoning board’s decision was not arbitrary or capricious, and that the zoning board properly determined that the plaintiffs’ application for celebratory events did not bear a reasonable relationship to agriculture.

At the appellate court, the plaintiffs argued that the trial court failed to construe the statutory definition of agritourism and failed to analyze whether their proposed celebratory events satisfied the definition. The appellate court noted that the trial court was merely required to determine whether the zoning board’s administrative order was arbitrary or capricious. The appellate court also noted that the statute at issue defined agritourism as “an agriculturally-related educational, entertainment, historical, cultural, or recreational activity” conducted on a farm. The appellate court determined that the zoning board had properly concluded that plaintiffs’ proposal was for an event venue with an incidental agricultural theme, rather than an agricultural activity. The appellate court held that just because an activity is done on agriculturally zoned property does not make the activity agritourism. The appellate court declined to categorically decide whether celebratory events constituted agritourism, and only affirmed the zoning board’s decision that the plaintiffs’ proposed celebratory events were not agritourism.

Confined Livestock Operations

Another situation that can create issues with local zoning officials involves confined livestock operations.  Is a large-scale confinement operation “agriculture” or is it more like a commercial business operation?  The issue sometimes arises in counties that exempt agriculture from county zoning and the county attempts to zone the alleged commercial activity.  This issue came up in a recent case.

In Chambers v. Delaware-Muncie Metro. Board. of Zoning Appeals, 150 N.E.3d 603 (Ind. Ct. App. 2020), the petitioners owned property located in an area that was zoned as “agricultural.”  The petitioners sought and eventually obtained a permit from the county building commissioner to build several hog barns configured as a concentrated animal feeding operation (CAFO) on their property. Neighbors of the petitioners asked the zoning board to review the building commissioner’s decision to issue the permit. The zoning board voided the permit and determined that the farming zone did not recognize industrial agricultural uses, such as the petitioners’ proposed CAFO. The petitioners sought a review of the zoning board’s decision.  The trial court noted that the zoning ordinance specifically permitted animal husbandry, as well as raising and selling hogs and the erection of barns and similar farming building.

The trial court determined that the zoning ordinance clearly indicated that hog raising operations were a permitted use. The trial court noted that the county could have excluded CAFOs or put other restrictions in place to maintain more traditional farming operations. Additionally, the trial court noted that several CAFOs were located and permitted in other agricultural zones in the county. Thus, the trial court held that the zoning board’s decision was reversed and the building commissioner’s decision to issue the permit to the petitioners was reinstated.

On appeal, the neighbors of the petitioners argued that the zoning ordinance was ambiguous because it did not mention CAFOs. The appellate court agreed with the trial court and noted that the zoning ordinance set no limit on the scale of permitted uses in the agricultural zone. The appellate court determined that the plain language of the zoning ordinance was not ambiguous, and the petitioners were permitted to raise any number of hogs, subject to state and federal limitations.

Actual Use of the Property

Sometimes change in use of the property from one type of agriculture activity to another type of agricultural activity can become entangled in a zoning dispute.  That was the issue decided by the Tennessee Court of Appeals earlier this month.

In Jefferson Cty. v. Wilmoth Family Properties, LLC, No. E201902283COAR3CV, 2021 Tenn. App. LEXIS  37 (Tenn. Ct. App. Feb. 1, 2021), the defendants purchased a parcel in 2004.  At the time of purchase, the defendants believed that the property was zoned “agriculture” because its prior use had been as a dairy farm and slaughterhouse.  The defendants. The defendants began using the property for hay and chicken production, as well as hosting third party events and overnight stays.  The defendants later discovered that the property was zoned rural residential. In 2016, the county sent notice to defendants to stop using the property as an event venue, claiming that commercial events were prohibited by the rural residential zoning.  The defendants did not comply and the county sued.  The defendants claimed that their property satisfied the statutory definition of a “farming operation” that was protected by the state (TN) Right-To-Farm (RTF) law. 

The trial court agreed with the defendants that the tracts was being used as a farming operation and that the events were a secondary use.  On appeal, the appellate court affirmed.  The appellate court noted that the defendants had sold hay, cattle and poultry products from the property. 

Conclusion

Zoning issues arise often involving rural land use.  What might seem to be an agricultural activity may not be, and non-agricultural events on rural land might be questioned by zoning officials.  Also, being aware of the present (and perhaps planned) zoning status of land before acquiring it is a good idea.