Neighbor Law: Favoring Farm Enterprise?

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© Alice Neff Lucan

Problems with the Fauquier County Board of Supervisors have led to statewide legislation that tries to limit local regulation on local farm enterprise throughout the Commonwealth. The law forbids local governments from regulating farm activity related to “agri-tourism” purposes unless there is a substantial impact on neighbors.

If it is true, as news stories report, that Fauquier wanted farmer Martha Boneta to get a special permit for a 10-year-old’s birthday party, then maybe they needed this law in Fauquier. Albemarle County’s Board of Supervisors has already considered what they can and need to do to regulate in support of the new state law with the goal of imposing few restrictions and still allowing neighbors’ concerns to be considered.

According to White Hall Supervisor Ann Mallek, the intent is to let farms, vineyards and breweries continue to develop related enterprises, with minimal local government interference. It has been up to the counties, however, to write ordinances that will define the broadly worded terms in the state law.

For example, the state law forbids local regulations if there is “no substantial impact” on “public welfare.” It was up to the Albemarle Board to decide the main limits that define “substantial impact.” Albemarle decided to:

• limit traffic to 50 vehicle trips a day;

• limit events drawing more than 200 people a day;

• require qualified agri-tourism farms to include at least 21 acres;

and, ultimately, to consider whether agriculture is a legitimate use of the property.

The state law is actually an amendment to the Virginia Right to Farm Law and, essentially, it allows farms to add supplemental commercial endeavors to their farms, “value-added” goods, so long as the revenues from these sales are not more than 50 percent of the total farm revenues.

Protected activities are “the conduct of agri-tourism activities, the sale of [farm or forest] products or related items, the preparation or sale of goods that otherwise comply with state law, and other customary activities.”

The agri-tourism law has to be read alongside many other Virginia laws, but the following examples will sketch in rough outlines.

What enterprise may a farmer add without having to ask for approval, get zoning clearance or a special use permit from the Board of Supervisors?

Would the farmer be permitted to open a race car track?

No, because car racing is not related to the agricultural activities at the farm, though you might be surprised to read this if you drive on White Hall Road. The added activity has to be related to agricultural operation and subordinate to the agricultural products. On the other hand, if you were training horses to race, and you had your own racetrack, you might sell tickets (forget betting), so long as ticket sales did not exceed 50 percent of horse training fees.

Could a framer sell local crafts at an orchard?

Yes. Farms can have some incidental items for sale, but revenues must remain less than 50 percent of produce sales. If a farm is processing apples grown on site into cider, the county may not regulate. If the Ruritans use Henley apples to bake apple pies for fund-raising, those can be sold at “The Shed,” the Henleys’ fruit stand, along with complementary goods like sunbonnets, aprons and whistles made from apple wood.

Could a farmer hold a dance at a vineyard? Maybe. Vineyards are already regulated (and protected) by a state law passed in 2007. Noise restrictions must be the same as those imposed on all enterprises throughout the county, but even an across-the-board noise reduction law might not make all neighboring porch-sitters happy. New farm breweries and new vineyards still have to get a zoning clearance from the county for parties, and so that amounts to indirect noise regulation. That means new party site owners need a conversation with the county staff about where to place the band, how to park traffic, when to close down. This is not regulation of decibels, but disregarding the county staff’s advice “might” result in a denial of the special use permit.

County Senior Planner Amanda Burbage said that this shift in regulatory focus has had little impact so far. People are not aware of the change or are still deciding whether to react to it. She and Zoning Administrator Amelia McCully can give more thorough answers to specific questions about new farm projects. They can be reached at (434) 296-5832, or there is a helpful “FAQ” called Agricultural Operations FAQ’s on Albemarle.org. under Community Development, “hot topics.”

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