Can a Tennessee county apply zoning rules to a farmer's or farmworker's house on a working farm?

Subject

Opinion No. 13-80, County Zoning of Residential Structures on Land Used for Agricultural Purposes, October 22, 2013

Plain-English summary

Sen. Frank Niceley asked whether Tennessee county zoning could regulate buildings used as residences by farmers and farmworkers on a working farm. The AG said no, in most cases. Tenn. Code Ann. § 13-7-114 exempts farm buildings from county zoning if they are "incidental to the agricultural enterprise," subject to one exception: when the farm is "adjacent or in proximity to state federal-aid highways, public airports or public parks."

The key question was whether a farmhouse or farmworker housing qualified as "incidental to the agricultural enterprise." The AG concluded yes. Tennessee courts have given the term a broad reading. In Brunetti v. Williamson County Bd. of Zoning Appeals (Tenn. Ct. App. 1999), the court held grain bins were exempt because storing and treating crops is accessory to cultivation. Other states with similar statutes have specifically held that farmworker housing is incidental to agriculture. Braden Trust v. Yuma County (Ariz. Ct. App. 2003) reasoned that "[o]n-site housing for full-time farm workers can be said to be 'incidental' to farming because housing the workers on the farm is a subordinate accommodation to their primary role as employees and because free, on-site housing arguably benefits both the employer and the workers in terms of safety and productivity." Blauvelt v. Bd. of County Comm'rs of Leavenworth (Kan. 1980) reached the same conclusion for the farmer-owner's own farmhouse.

The practical justification: farmers and farmworkers who live on the farm can respond around the clock to livestock, weather, and crop-cycle demands. Farm operations don't fit a 9-to-5 schedule. On-site housing supports the underlying agricultural use. So county zoning power doesn't reach those residences, unless the farm is near a federal-aid highway, public airport, or public park, in which case zoning may apply.

Important limitation: the opinion noted (in a footnote previously) that § 13-7-114 applies only to county zoning, not to municipal zoning. A farm inside city limits is subject to whatever zoning rules the city's ordinance imposes.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee zoning and agricultural-use statutes have been amended since 2013. The Right to Farm Act and related provisions have also been refined. Anyone evaluating a current dispute should consult current statute text and check whether a particular county has invoked the federal-aid-highway proximity exception.

Background and statutory framework

Statutory text. Tenn. Code Ann. § 13-7-114: "This part shall not be construed as authorizing the requirement of building permits nor providing for any regulation of the erection, construction, or reconstruction of any building or other structure on lands now devoted to agricultural uses or which may hereafter be used for agricultural purposes, except on agricultural lands adjacent or in proximity to state federal-aid highways, public airports or public parks; provided, that such building or structure is incidental to the agricultural enterprise."

Scope. The statute is part of Tennessee's county zoning code (Tenn. Code Ann. §§ 13-7-101 to -119). It does not apply to municipalities. Tenn. Att'y Gen. Op. 10-12 at 2, n. 1 (Jan. 28, 2010).

Broad reading of "agricultural enterprise." Brunetti v. Williamson County Bd. of Zoning Appeals, 1999 WL 802725 at *8 (Tenn. Ct. App. Oct. 7, 1999), held grain bins for storing and treating grain were "incidental to an agricultural enterprise" and thus exempt.

Sister-state authority on farmworker housing. Braden Trust v. Yuma County, 69 P.3d 510, 513 (Ariz. Ct. App. 2003), construed Arizona's similar building-code exemption (Ariz. Rev. Stat. § 11-865(A)(1)) and held on-site dwellings for farm workers were "incidental to farming or agriculture." The court relied on dictionary definitions of "incidental" as "[s]ubordinate to something of greater importance" and reasoned about practical worker-housing benefits. Blauvelt v. Bd. of County Comm'rs of Leavenworth, 605 P.2d 132, 134 (Kan. 1980), applied Kan. Stat. Ann. § 19-2921 to exempt a farmer-owner's farmhouse, citing the legislative purpose to "favor agricultural uses and farmers."

Prior AG opinions. Tenn. Att'y Gen. Op. 99-071 at 2 (Mar. 22, 1999), and Tenn. Att'y Gen. Op. 94-103 at 1-2 (Sept. 9, 1994), recognized the broad definition of "agriculture" and "agricultural use" in Tennessee law.

Common questions

What about a non-working farm or a "hobby farm"?

The exemption applies only to "lands now devoted to agricultural uses or which may hereafter be used for agricultural purposes." A property that is not actually being farmed (a residential lot with a few chickens, say) would not qualify. The exemption assumes a genuine agricultural enterprise.

Does the farm have to be the primary residence?

The opinion doesn't draw a primary/secondary residence distinction. The key questions are whether the property is devoted to agricultural use and whether the residence is incidental to that use. A secondary residence on a working farm, used by family members helping with operations or by farmworkers, would qualify on the same logic.

Does the exemption protect new construction or only existing buildings?

Both. The statute prohibits requiring building permits and prohibits zoning regulation of "the erection, construction, or reconstruction" of buildings, which covers new construction and modifications.

What's "in proximity to" mean for the federal-aid highway exception?

The statute doesn't define proximity. Courts have looked at the specific factual context. Practical Tennessee experience suggests "in proximity" generally means within sight or within a few hundred feet, but counties' interpretations have varied. The opinion didn't draw a bright line.

Are public health and safety codes also exempted?

The opinion addressed only zoning, not building, plumbing, electrical, or sewage codes. Many counties separately apply health and safety codes even to farm buildings. The exemption in § 13-7-114 is about zoning regulation specifically. A farm residence might still have to meet basic septic-system or electrical-permitting requirements depending on the county.

Citations

Tenn. Code Ann. §§ 13-7-101 to -119, 13-7-114. Cases: Brunetti v. Williamson County Bd. of Zoning Appeals, 1999 WL 802725 (Tenn. Ct. App. Oct. 7, 1999); Braden Trust v. Yuma County, 69 P.3d 510 (Ariz. Ct. App. 2003); Blauvelt v. Bd. of County Comm'rs of Leavenworth, 605 P.2d 132 (Kan. 1980). Prior AG opinions: Op. 10-12 (Jan. 28, 2010); Op. 99-071 (Mar. 22, 1999); Op. 94-103 (Sept. 9, 1994).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-080.pdf

Original opinion text

October 22, 2013

Opinion No. 13-80

County Zoning of Residential Structures on Land Used for Agricultural Purposes

QUESTION

Does Tenn. Code Ann. § 13-7-114 exempt from county zoning regulation buildings used as residences by farmers and farm workers?

OPINION

Because buildings used as residences by farmers and farm workers are "incidental to the agricultural enterprise," the provisions of Tenn. Code Ann. § 13-7-114 exempt such buildings located on farm property from county zoning regulation, unless the buildings are located on farm property "adjacent or in proximity to state federal-aid highways, public airports or public parks."

ANALYSIS

The statute in question, which is part of the Tennessee statutory provisions governing zoning in Tennessee counties codified at Tenn. Code Ann. §§ 13-7-101 to -119, provides that

[t]his part shall not be construed as authorizing the requirement of building permits nor providing for any regulation of the erection, construction, or reconstruction of any building or other structure on lands now devoted to agricultural uses or which may hereafter be used for agricultural purposes, except on agricultural lands adjacent or in proximity to state federal-aid highways, public airports or public parks; provided, that such building or structure is incidental to the agricultural enterprise.

Tenn. Code Ann. § 13-7-114. This provision applies to counties only and has no application to municipalities. See Tenn. Att'y Gen. Op. 10-12, at 2, n. 1 (Jan. 28, 2010).

By its plain language, this statute provides that the general zoning powers given to county legislative bodies generally do not authorize the counties to require building permits or otherwise regulate buildings or other structures on lands devoted to agricultural purposes, provided such buildings or structures are incidental to those agricultural purposes. Thus, in deciding whether buildings or structures are excepted from the county's zoning powers, the question becomes whether those buildings or structures are "incidental to the agricultural enterprise." Tenn. Code Ann. § 13-7-114.

Courts construing the meaning of "agricultural enterprise" have generally given the term a broad definition. In Brunetti v. Williamson County Bd. of Zoning Appeals, No. 01A01-9803-CV-00120, 1999 WL 802725, at *8 (Tenn. Ct. App. Oct. 7, 1999), the Tennessee Court of Appeals observed that the statute in question prohibited county "zoning regulations and officials from regulating a structure which is incidental to an agricultural enterprise." The issue in that case was whether the county could regulate two grain bins used to treat and store grain grown by the farmer on leased acreage nearby. When a neighboring landowner objected to the operation of the two grain bins, the farmer began cultivating wheat on his own property as well. The court held that the grain bins were not subject to county regulation, reasoning that "[s]ince the storing and treating of crops is accessory to cultivation, the buildings used for such purposes are, within the meaning of the statute, incidental to an agricultural enterprise." Id.

In construing a similar provision, the Arizona Court of Appeals held that on-site dwellings for farm workers were incidental to farming or agriculture and, thus, were exempt from local building codes. Braden Trust v. Yuma County, 69 P.3d 510, 513 (Ariz. Ct. App. 2003). An Arizona statute provided that building codes "shall not be construed to apply to . . . [c]onstruction or operation incidental to . . . farming . . . [or] agriculture." Id. at 513 (citing Ariz. Rev. Stat. § 11-865(A)(1)). The court reasoned as follows:

"Incidental" is generally defined as "[s]ubordinate to something of greater importance; having a minor role," Black's Law Dictionary 765 (7th ed. 1990), "happening in fortuitous or subordinate conjunction with something else," The Random House Dictionary 444 (1980), and "being likely to ensue as a chance or minor consequence," Webster's Ninth New Collegiate Dictionary 609 (1987).

Thus, "construction or operation" that is "incidental" to farming or agriculture does not necessarily involve the primary functions of the farm but, instead, may concern functions that are tangentially related to the principal activity of the farm. On-site housing for full-time farm workers can be said to be "incidental" to farming because housing the workers on the farm is a subordinate accommodation to their primary role as employees and because free, on-site housing arguably benefits both the employer and the workers in terms of safety and productivity.

Id. at 513.

Similarly, in Blauvelt v. Bd. of County Comm'rs of Leavenworth, 605 P.2d 132, 134 (Kan. 1980), the Kansas Supreme Court held that a farmhouse occupied by the farmer-owner was exempt from county zoning regulations. The Kansas statute at issue exempted "the use of land for agricultural purposes" and "the erection or maintenance of buildings thereon for such purposes so long as such land and buildings erected thereon are used for agricultural purposes and not otherwise." Id. at 133 (citing Kan. Stat. Ann. § 19-2921). As the court explained:

The pertinent provisions of the statute have been in effect since 1939. . . . The obvious purpose of the proviso in Kan. Stat. Ann. § 19-2921 was to favor agricultural uses and farmers. Since this state's economy is based largely on the family farm it would appear the intent of the legislature was to spare the farmer from more governmental regulation and not to discourage the development of this state's farm industry.

Id. at 135 (citation omitted).

In previous opinions, this Office has likewise recognized that the terms "agriculture" and "agricultural use" traditionally have been broadly defined. See Tenn. Att'y Gen. Op. 99-071, at 2 (Mar. 22, 1999); Tenn. Att'y Gen. Op. 94-103, at 1-2 (Sept. 9, 1994). In light of the generally expansive definition given agricultural uses in Tennessee, buildings located on farm property that are used as residences by farmers and farm workers would be considered exempt from county zoning regulations, provided that the farm property is not "adjacent or in proximity to state federal-aid highways, public airports or public parks." Tenn. Code Ann. § 13-7-114. On-site housing for farmers and farm workers directly facilitates the operation of the farm itself. Farmers and farm workers who live onsite may be more productive and responsive than other workers who do not live on the premises. The around-the-clock presence of farmers and farm workers may be crucial to tending to livestock or to performing urgent tasks during planting and harvesting seasons. Thus, onsite housing for farmers and farm workers is incidental to the agricultural enterprise, and Tenn. Code Ann. § 13-7-114 prohibits a county from using its zoning power to regulate buildings or structures used as farm housing subject to the limited exceptions set forth in this statute.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

MARY ELLEN KNACK
Senior Counsel

Requested by:

The Honorable Frank Niceley
State Senator
9 Legislative Plaza
Nashville, Tennessee 37243