Does an occasional concert, wedding reception, or dance at a Virginia barn or other 'farm building' trigger Building Code requirements for an occupancy permit?

Plain-English summary

Fauquier County asked the AG about farm buildings. Under Virginia law, "farm buildings and structures" are exempt from the Uniform Statewide Building Code. The county wanted to know: if a farmer occasionally rents the barn out for a wedding reception or a dance, does that flip the building into "assembly" use and trigger Building Code requirements, including the need for an occupancy permit?

The AG said no for infrequent use. The Building Code generally requires an occupancy permit when a building undergoes a "change of occupancy." Section 36-97 defines "farm building or structure" as a building (1) not used for residential purposes, (2) located on property where farming operations take place, and (3) "used primarily" for specified agricultural purposes (storage of products, sheltering animals, farm business, farm equipment maintenance, supplies, best management practices).

The word "primarily" is the key. The General Assembly knew when it chose that word that some non-specified uses would occur. A permanent change (remodeling a barn into a residence) would trigger a new permit. But occasional non-agricultural use, like several wedding receptions per year, does not destroy the building's "primarily" agricultural status. So an occupancy permit isn't required for the new use.

The opinion does not approve every event scenario. A barn that holds weddings every weekend for ten months a year is probably no longer "primarily" agricultural. The line between occasional and primary depends on the facts of each case.

Currency note

This opinion was issued in 2010. 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.

The Virginia legislature has revisited farm buildings and agritourism multiple times since 2010, including the Right to Farm Act and various agritourism legislation. The Uniform Statewide Building Code has been updated. The line between farm and event-venue use has been the subject of substantial litigation in Virginia and elsewhere. Anyone planning to host events on farm property today should look at current state and local rules and recent AG and court guidance.

Common questions

What counts as a "farm building or structure"?
At the time, a building or structure (1) not used for residential purposes, (2) located on property where farming operations take place, and (3) used primarily for one of six listed purposes: storage of agricultural products, sheltering or processing of farm animals, farm-related business or office, farm machinery storage or maintenance, storage of farm supplies, or implementation of best management practices.

What's a "change of occupancy"?
Under the Building Code, a building's "occupancy" classification reflects how it's used (residential, business, assembly, etc.). When a building changes from one classification to another, it has to comply with the Code's requirements for the new use, including obtaining an occupancy permit.

Why does "primarily" matter?
Because it tells the reader the exemption tolerates secondary, occasional uses. If the General Assembly had said "exclusively" or "only," the answer would be different. "Primarily" means most of the use must be agricultural; the rest can be other things without losing the exemption.

How often is too often?
The opinion does not draw a precise line. Several events per year would be fine. Hosting events every weekend would probably push the building out of "primarily" agricultural use. The analysis is fact-specific, and a local building official would have to look at the actual pattern of use.

What if the building has been remodeled to better serve events (climate control, restrooms, dance floor)?
Permanent remodeling that converts a structure to event hosting is a different question. The AG specifically said permanent changes call for a new occupancy permit. The exemption protects buildings still serving farm purposes.

Background and statutory framework

The Virginia Uniform Statewide Building Code (USBC) applies to most construction in Virginia. Farm buildings are an explicit exception. Section 36-97 defines what counts:

[B]uilding or structure not used for residential purposes, located on property where farming operations take place, and used primarily for any of the following uses or combination thereof:

1. Storage, handling, production, display, sampling or sale of agricultural, horticultural, floricultural or silvicultural products produced in the farm;
2. Sheltering, raising, handling, processing or sale of agricultural animals or agricultural animal products;
3. Business or office uses relating to the farm operations;
4. Use of farm machinery or equipment or maintenance or storage of vehicles, machinery or equipment on the farm;
5. Storage or use of supplies and materials used on the farm; or
6. Implementation of best management practices associated with farm operations.

When a farm building falls outside the exemption (no longer primarily used for these purposes, used residentially, or no longer on farming property), the regular Building Code rules require obtaining an occupancy permit.

The opinion's interpretive method: read "primarily" naturally, with the understanding that the legislature meant to permit some incidental non-farm use. Anything else would render "primarily" meaningless.

Citations

• Va. Code Ann. § 36-97 (2010)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-071-Burke.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

August 23, 2010

Kevin J. Burke, Esquire
Fauquier County Attorney
10 Hotel Street, Suite 206
Warrenton, Virginia 20186

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Burke:

I am responding to your request for an official advisory opinion in accordance with section 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the use of a "farm building or structure" for the purposes of hosting events like concerts, dances and wedding receptions constitutes a change in the occupancy classification of the structure sufficient to require the structure's compliance with the Uniform Statewide Building Code ("building code") and to require the owner of such a structure to obtain an occupancy permit for such events.

Response

It is my opinion that the infrequent use of a "farm building or structure" to host a concert, dance or other social gathering does not constitute a change in occupancy classification and, therefore, does not require the owner to obtain an occupancy permit for the new uses.

Background

You note that owners of farm buildings or structures, which are exempt from the building code, periodically use those buildings for non-agricultural uses. You relate that examples of the new, non-agricultural uses include the hosting of concerts, wedding receptions and dances. You request advice on the issue of whether the owner of a structure defined as a "farm building or structure" who wishes to occasionally use his property for non-agricultural uses must obtain an occupancy permit for the new use.

Applicable Law and Discussion

The building code generally requires the owner of a building to obtain an occupancy permit when a building undergoes a "change of occupancy." Farm buildings and structures are exempt from the requirements and standards embodied in the building code. For the purposes of the building code, "farm building or structure" is defined as a:

[B]uilding or structure not used for residential purposes, located on property where farming operations take place, and used primarily for any of the following uses or combination thereof:

1. Storage, handling, production, display, sampling or sale of agricultural, horticultural, floricultural or silvicultural products produced in the farm;

2. Sheltering, raising, handling, processing or sale of agricultural animals or agricultural animal products;

3. Business or office uses relating to the farm operations;

4. Use of farm machinery or equipment or maintenance or storage of vehicles, machinery or equipment on the farm;

5. Storage or use of supplies and materials used on the farm; or

6. Implementation of best management practices associated with farm operations.

So long as a building (1) is not used for residential purposes, (2) is located on property where farming operations take place and (3) is used primarily in one of the uses provided, the requirements of the building code do not apply.

The General Assembly's reliance on the term "primarily" indicates that the General Assembly contemplated that some non-specified uses would be made of these buildings. The answer to your question thus ultimately turns on the circumstances of each individual case. Permanent changes in the use of a structure (for example, the remodeling of a barn into a residence) would call for a new occupancy permit for the structure. An occasional use, such as using a barn several times per year for a wedding reception, would not alter the fact that the barn remains "primarily" devoted to a specified farm use and, therefore, would not destroy the exempt status of the barn as a "farm building or structure."

Conclusion

Accordingly, it is my opinion that the occasional use of a "farm building or structure" to host a concert, dance or other social gathering does not constitute a change in occupancy classification and, therefore, does not require the owner to obtain an occupancy permit for the new use.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General