Voluntary Ag Districts: Proposed Legislation Refines Implementation and Professional Responsibility

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Legislation has been introduced to the NC General Assembly to refine Voluntary Agricultural District (VAD) administration as part of the 2021 Farm Act (SB 605). (“Farm Acts” have been introduced almost annually since 2017 to make changes to legislation related to agriculture and forestry.) The 2021 Farm Act makes several important changes to the VAD and EVAD statute (N.C.G.S. §106-735). Following are several of the changes:

  1. Use of property for qualification. The proposed language now links the required land use directly to the Bona Fide Farm exemption in N.C.G.S. §160D-903, which offers four objective “safe-harbors” whereby zoning officials determine whether a parcel of land is used for farming.
  2. Simplify Single Parcel as a Voluntary Agricultural District. The new language now qualifies land for establishment of a VAD as a single parcel under conservation agreement, as defined in N.C.G.S. §121-35. This clarifies the vague authorization of the previous statute whereby the county was free to geographically define a VAD, which theoretically could have included land not qualified or enrolled in the VAD program. This change is also important to better implement the “GIS buffer” that warns purchasers of neighboring tracts that a farm is nearby.
  3. Membership of VAD Board. The new language strikes a troublesome requirement that VAD Boards include a member from each district. This proved unwieldy as counties struggled to include a member from each district, when districts in practice were tied to enrollment of individual parcels (meaning: did each owner of each enrolled parcel have to be on the board?). The new language is silent on who must sit on the board, only that it is appointed by the county commissioners. The new language reads: The members of the agricultural advisory board shall be chosen to provide the broadest possible representation of the geographical regions of the local government and to represent, to the extent possible, all segments of agricultural production existing within the local government. A majority of the members of the agricultural advisory board shall be actively engaged in agriculture.
  4. Powers of the VAD Board. Importantly, the proposed statutory language explicitly authorizes the county commissioners to delegate to the VAD Board the power to enroll parcels as a VAD. Previously, there was some confusion as to whether each new enrolled parcel (usually a collection) had to be ratified by a public meeting of the county commissioners. If the language passes, the VAD Board can legally enroll and de-enroll parcels into the program. (In related language, the bill authorizes agencies of the county to administer the program, e.g. Soil & Water and Cooperative Extension, with approval of the county commissioners)
  5. Proximity Notice. The proposed bill clarifies that the required proximity buffer be 1/2 mile (eliminating the 600 foot buffer) from the boundary line of any farm enrolled in a VAD. Previously, the 1/2 mile only applied to “poultry, swine or dairy” farm, the definition of which could prove elusive. This new measure simplifies the buffer calculation.
  6. Professional Liability. Designed to give the VAD program more “teeth in the title”, the new language strikes through the following: In no event shall any cause of action arise out of the failure of a person researching the title of a particular tract to report to any person the proximity of the tract to a qualifying farm or voluntary agricultural district as defined in this Article. While not establishing liability on the part of lawyers searching title who fail to warn in their title opinion of the nearby farm, the striking of the language opens the possibility that “failure to note proximity of a VAD” in a title report may amount to professional error. This may open the door to claims against lawyers (who remain solely responsible in NC for certifying title to real property) by a represented landowner who discovers their proximity to a farm when such notation did not appear in their title opinion (of course, the purchaser will still need to suffer actual damages). As a practical matter, such may provide an easier claim by a landowner irritated by a nearby farm: lawyers carry insurance policies, which in theory could lead to a settlement in compensation for the error (whereas nuisance claim against the farmer is a more challenging civil claim, and not one covered by liability insurance). A similar striking of language opens up the same error to real estate agents and appraisers. (Undoubtedly, organizations representing these groups will oppose this change.)

Changes to the VAD program authorizing legislation are overdue, and those outlined above will result in more defined and easier to manage programs.