Bona Fide Farm Zoning: NC Appeals Court Limits Agritourism Definition

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The North Carolina Court of Appeals on May 15 placed a check on the expanding list of activities operated in rural North Carolina under the definition of “agritourism.”  In the Harnett County case of Jeffries et al v. Harnett County, COA17-729 (N.C.App. 2018) the NC Appeals Court held that while a hunting refuge may be considered a traditional rural enterprise, the operation of a gun range (and certain other shooting activities listed below) is not sufficiently related to the act of hunting to warrant zoning exemption under NC General Statutes §153A-340[b]. The Court likewise found the activities in this particular case to be outside the definition of “agritourism” under  NCGS §106-581.1. The case, dating back to 2010, pitted a long-time farming family – exploring expanded use of their farm – against neighbors opposed to the noise and perceived hazards attendant to operation of a gun range in their rural neighborhood. The Jeffries opinion provides a window into the legal reasoning lawyers representing agritourism operators in county zoning disputes might expect from a court adjudicating whether a client’s activities fall under the bona fide farm exemption codified in NCGS §153A-340(b) (the “Bona Fide Farm Law”).

The Bona Fide Farm Law. In response to the ever-expanding urban-rural interface, the North Carolina General Assembly created the “Bona Fide Farm” exemption to countywide zoning authority, whereby certain rural activities and supporting infrastructure on a qualifying farm are exempt from a county’s authority to prohibit them under its zoning authority as granted by state law. The statute identifies four safe harbor attributes to qualify land as a bona fide farm.*  In 2017, the NC General Assembly further defined the term “agritourism” in a law titled “An Act to Amend Certain Laws Governing Agricultural Matters” (the “2017 Act”), ch. 108, 2017 N.C. Sess. Laws __, __. The 2017 Act amended the Bona Fide Farm Law to further define agritourism in respect to which buildings related to same are exempt from county zoning (NCGS § 153A-340[b][2a]). The 2017 Act clarified that buildings used for “weddings, receptions, meetings, demonstrations of farm activities, meals, and other events that are taking place on the farm because of its farm or rural setting” qualified as agritourism.

Case History. The Andrews family owns and operates farmland in the north Harnett County area. In the 1990s, the family registered part of their farm as a hunting preserve with the NC Wildlife Resources Commission, and in 2005 members of the family organized Drake Landing LLC (“Drake Landing”) to manage the hunting preserve and additional activities related to sport shooting and firearms training. In 2010, neighbors to the farm – organized as the North Harnett Property Rights Association, Inc. (“Petitioners”) – approached the Harnett County zoning department requesting a determination whether the hunting preserve and the shooting activities – which included rifle and pistol ranges, 3D archery, skeet shooting, concealed carry handgun training, and various sport shooting competitions – qualified as “agritourism” exempt from county zoning. Following the county’s determination that most of the activities were zoning-exempt (pistol training and competitions failing to qualify), the Petitioners requested the county superior court to review the zoning decision.

The superior court ordered the county to re-examine the issue, and the county determined the shooting activities were “used in preparation” for hunting and were thus exempt. This zoning decision again came before the superior court, whereby the judge rejected the position that the shooting activities in question qualified as “agriculture” under the definitions provided by N.C.G.S. §106-581.1, even though the activities occurred on a qualified bona fide farm. The court then ordered the county to conduct another hearing on the matter, whereby the county concluded that because hunting preserves are operated on a bona fide farm, the preserve and all activities thereon were “categorically exempt” from zoning regulation. Following further appeal to the superior court, that court’s unwillingness to further adjudicate its last order resulted in the appeal to the NC Court of Appeals in Raleigh.

The Court’s Analysis.   The Court in its opinion came to the issue that brought the parties there:  do the shooting activities in this case as a matter of law qualify for bona fide farm zoning exemption? As a baseline matter, the Court, citing the recent case of Hampton v. Cumberland County, 808 S.E.2d 763 (2017), stated that “non-farm uses, even on bona fide farms, are not exempt from zoning regulation.” Hampton at 775. The Court opened its analysis by zeroing in on the definition of “agritourism,” stating that “[s]tatutory analysis properly begins with an examination of the plain words of the statute,” with a declaration that only when statutory language is unclear and ambiguous will a court apply established judicial canons (aka rules) of interpretation. (Jeffries at 24). The court first looked to NCGS §99E-30(1) (the “Agritourism Liability Law”) definition of “agritourism,” conceding that though related the purpose of the Agritourism Liability Statute statute is to limit liability of agritourism operators, not define activities that count as agritourism for zoning purposes. That statute reads in pertinent part:  [a]ny activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, harvest-you-own activities, or natural activities and attractions.”  NCGS §99E-30(1) (2013). The Court then noted that the 2017 Act added further language to the concept of agritourism. Although the 2017 Act was passed after the commencement of the case, the Court found that the amendment to the agritourism definition clarified rather than altered the applicable law, so the Court proceeded to analyze the present facts in light of the latest definition.

With all parties having conceded in the record that hunting is a traditional “rural activity,” the court allowed that a controlled hunting preserve supporting a bona fide farm may qualify as recreational entertainment in a rural setting [emphasis added]. First, the Court accepted the New American Oxford Dictionary’s definition of rural as “in, relating to, or characteristic of the countryside rather than the town” [citation omitted]. Then, as to the shooting activities, considering the fact that the Bona Fide Farm law lists examples of rural and farming activities, the Court employed legal canons of construction and threw Latin at the question in order:  1) noscitur a sociis, meaning that “associated words explain and limit each other;” 2) expressio unius est exclusio alterius, meaning “the expression of one thing implies the exclusion of another;” and 3) in pari materia, employed to discern legislative intent by analyzing other statutes “of the same matter” tied together by one specific term.

Under the first canon noscitur a sociis, the Court noted the example words used in the Bona Fide Farm statute, “farming, ranching, historic, cultural, harvest your own activities, or other natural activities and attractions.”  The Court said such words are together in a category as they “allow members of the non-rural public to view or enjoy traditional rural activities or attractions relating to agriculture that typically occur in a rural setting.” (Id. at 33) . The Court also noted that such activities are natural in that each listed activity “preserves the land and does not require its alternation other than by public consumption of the natural items on the land.” (Id. at 33) . The Court appeared to believe that operation of a hunting preserve fit into this category, as it required no alteration of the land. Applying the second canon expressio unius est exclusio alterius, the Court took the position that because the statute explicitly says “farming” and “ranching” but does not mention “hunting”, that activities related to the former were permissible, but not so to the later.

[The Court looked further at the NCGS § 153A-340[b][2a] listing examples of agritourism use of buildings and structures, which lists “weddings, receptions, meetings, demonstrations of farm activities, meals, and other events that are taking place on the farm because of its farm or rural setting.” (Id. at 34) . The Court declared that the grouping of listed activities count as agritourism because participants are enjoying the farm or rural setting, whereas shooting activities, though amenable to rural areas because of the open space provided, do not rely on the aesthetics of farm and rural landscapes as do the examples in the statute. Id.]

And finally, using  in pari materia to discern legislative intent by linking two different statutes tied together by one specific term, the Court relied heavily on the intent and language of NCGS §99E-30(3)’s description of dangers inherent in farming as a liability limitation warning. The Court noted the Agritourism Statute outlines “[t]hose dangers or conditions that are an integral part of an agritourism activity including certain hazards, including surface and subsurface conditions, natural conditions of land, vegetation, and waters, the behavior of wild or domestic animals, and ordinary dangers of structures or equipment ordinarily used in farming and ranching operations.” Id at 35 [emphasis in original]. The Court felt that agritourism used here described dangers attendant to farming and ranching, not hunting.

In its final holding, the Court stated:  “[W]e conclude that the particular outdoor shooting activities at issue here do not constitute ‘agritourism’ as a matter of law and are thus subject to zoning.” Id at 41.

The Takeaway. Note this case applies to the specific activities (listed earlier) found in the case fact pattern, and the result might be different should someone employ shooting activities in a different manner. Note also that the Court did not declare as a matter of law that hunting preserves qualify as agritourism, only that they might because they do not alter the natural landscape. We can also infer that the Court does not believe in the concept that all activities and related structures as “categorically exempt” because they happen on land otherwise qualified Bona Fide Farm. That said, it appears pretty clear the court believes that outdoor shooting activities, though rural, do not include aesthetics as the reason for the location of the activity (though many might disagree). Unless accepted for review and reversed by the NC Supreme Court, this case should be pretty clear guidance to county zoning officials, commissioners and county attorneys in their position that shooting ranges are not exempt uses on a bona fide farm.

Regardless whether one agrees with the Court’s reasoning, it nonetheless provides a framework for parties on both sides of an agritourism zoning definition dispute to better understand how a superior court might rule on a Bona Fide Farm agriculture definition dispute.

* The safe harbors are 1) A farm sales tax exemption certificate issued by the Department of Revenue, or 2) A copy of the property tax listing showing that the property is eligible for participation in the present use value program pursuant to G.S. 105-277.3, or 3) A copy of the farm owner’s or operator’s Schedule F from the owner’s or operator’s most recent federal income tax return, or 4) A forest management plan. Note that simply having a Farm Service Agency farm number does not in and of itself qualify land as a bona fide farm.