Would Virginia's proposed Right to Farm Act amendments adding aquaculture protect aquaculture only in agricultural-district zones or in any zone allowing agricultural activity?

Plain-English summary

The 2011 General Assembly considered Senate Bill 1190, a committee substitute that would have added aquaculture as a protected agricultural use under Virginia's Right to Farm Act (§§ 3.2-300, 3.2-301). Senator Norment asked whether, if enacted, the amendments would apply only to areas zoned as agricultural districts or also to other land not currently zoned that way.

Cuccinelli concluded the amendments would apply broadly, to areas zoned as agricultural districts or classifications, and to other areas in which the zoning provisions allow agricultural activity. Key Code distinctions matter: localities can adopt zoning ordinances that classify territory into districts and regulate uses within each. Separately, the Agricultural and Forestal Districts Act lets landowners apply to create specifically designated "agricultural districts," distinct from zoning districts classified as agricultural. The two concepts are distinct, and agricultural activities are not necessarily restricted to either form.

The bill's proposed amendment to § 3.2-301 said that no county could require special exception or special use permit for production agriculture or silviculture activity "in an area that is zoned as an agricultural district or classification." It also barred unreasonably restrictive zoning of "piers or docks attached to upland property zoned to allow agricultural activity." The AG read the language to cover three groups: areas zoned under an agricultural classification; areas designated as agricultural districts under the Districts Act; and other zoning classifications that allow agriculture.

Currency note

This opinion was issued in 2011. 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.

Common questions

Was this existing law or a proposal?
A proposal. The opinion analyzed committee substitute SB 1190's language as if enacted; it did not opine on whether the bill would pass.

What is the difference between an "agricultural district" and an "agricultural classification"?
Agricultural districts are a creature of the Agricultural and Forestal Districts Act, formed by landowner application. Agricultural classifications are zoning categories adopted under the locality's zoning ordinance. The two systems are independent. Both terms appear in the proposed bill's language.

How would the "piers or docks attached to upland property zoned to allow agricultural activity" language work?
It would have applied to any upland property zoned to allow agricultural activity, whether under an agricultural classification, in an agricultural district, or in a mixed-use zone that permits agriculture. The phrase "zoned to allow agricultural activity" was the broadest scope marker.

Background and statutory framework

Localities have broad zoning authority to classify territory into districts and regulate uses (agricultural, business, industrial, residential, flood plain, etc.) within each district.

The Agricultural and Forestal Districts Act sets up a separate framework where landowners apply to the locality to create specially designated agricultural districts. The opinion notes these districts are distinct from zoning districts classified as agricultural, and nothing in the Code requires that agricultural activities be exclusive to those areas.

The Right to Farm Act (§§ 3.2-300, 3.2-301) restricts the ability of localities to regulate certain agricultural activities. SB 1190 proposed adding aquaculture (defined in § 3.2-2600) to the protected categories.

The AG applied the plain-meaning rule and the principle that every part of a statute is presumed to have some effect.

Citations

• Va. Code § 2.2-505 (authority for official advisory opinions)
• Va. Code §§ 3.2-300, 3.2-301 (Right to Farm Act)
• Va. Code § 3.2-2600 (aquaculture definition)
• 2011 Reg. Sess. SB 1190 (committee substitute)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-083-Norment.pdf

Original opinion text

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

August 19, 2011

Attorney General

The Honorable Thomas K. Norment, Jr.
Member, Senate of Virginia
Post Office Box 6205
Williamsburg, Virginia 23188

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

Dear Senator Norment:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You inquire whether proposed amendments to the Right to Farm Act that were put forward during the 2011 General Assembly session by committee substitute Senate Bill 1190 would apply only to areas currently zoned as agricultural districts or also to other land not currently zoned as an agricultural district.

Response
It is my opinion that the proposed amendments would apply to areas currently zoned as agricultural districts or classifications, as well any other areas in which the zoning provisions allow for agricultural activity.

Applicable Law and Discussion
To promote the "health, safety or general welfare of the public[,]" localities are authorized to enact zoning ordinances that, first, "classify the territory under its jurisdiction ... into districts of such number, shape and size as it may deem best ..." and then, within each district, "regulate, restrict, permit, prohibit, and determine[,]" among other things,

1. The use of land, buildings, structures and other premises for agricultural, business, industrial, residential, flood plain and other specific uses;
2. The size, height, area, bulk, location, erection, construction, reconstruction, alteration, repair, maintenance, razing, or removal of structures;
3. The areas and dimensions of land, water, and air space to be occupied by buildings, structures and uses, and of courts, yards, and other open spaces to be left unoccupied by uses and structures ...

In addition, "to provide a means for a mutual undertaking by landowners and localities to protect and enhance agricultural and forestal land as a viable segment of the Commonwealth's economy and as an economic and environmental resource of major importance[,]" the General Assembly has established a statutory scheme by which landowners may submit to the locality an application for the creation of specially designated "agricultural districts." These districts are distinct from zoning districts that have been classified as agricultural.

I further note, however, that while land may be classified as agricultural for zoning purposes or encompassed within specially created agricultural districts, nothing in the Code provides that agricultural activities must be exclusive to those specified areas. Rather, localities are free to permit agricultural uses in areas otherwise zoned or designated.

Notwithstanding the broad control local governing bodies have over land use, The Right to Farm Act restricts the ability of localities to regulate certain activities within particular areas. Senate Bill 1190 proposes to amend these statutes to add aquaculture as a protected agricultural activity.

Specifically, key definitions would be expanded to include aquaculture references. Section 3.2-300 would be amended as follows:

As used in this chapter, unless the context requires a different meaning:

"Agricultural operation" means any operation devoted to the bona fide production of crops, or animals, or fowl including the production of fruits and vegetables of all kinds; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; the production and harvest of products from the practice of aquaculture, as defined in § 3.2-2600; and the production and harvest of products from silviculture activity.

"Production agriculture and silviculture" means the bona fide production or harvesting of agricultural, aquacultural, or silvicultural products but shall not include the processing of agricultural, aquacultural, or silvicultural products or the aboveground application or storage of sewage sludge.

In addition, § 3.2-301, would provide, as amended, in relevant part, that

In order to limit the circumstances under which agricultural operations may be deemed to be a nuisance, especially when nonagricultural land uses are initiated near existing agricultural operations, no county shall adopt any ordinance that requires that a special exception or special use permit be obtained for any production agriculture or silviculture activity in an area that is zoned as an agricultural district or classification. Counties may adopt setback requirements, minimum area requirements, and other requirements that apply to land on which agriculture and silviculture activity is occurring within the locality that is zoned as an agricultural district or classification. No locality shall enact zoning ordinances that would unreasonably restrict or regulate farm structures, piers or docks attached to upland property zoned to allow agricultural activity, or farming and forestry practices in an agricultural district or classification unless such restrictions bear a relationship to the health, safety, and general welfare of its citizens.

When statutory language is clear and unambiguous, the plain meaning of the language used should determine the legislative intent, unless such a literal construction would lead to a manifest absurdity. Moreover, "'[a] statute is not to be construed by singling out a particular phrase; every part is presumed to have some effect and is not to be disregarded unless absolutely necessary.'"

The proposed amendment to § 3.2-301 would have added aquaculture to the definition of "agricultural operation." Concretely, this means that a locality could not require a special exception or a special use permit for aquaculture that occurs "in an area that is zoned as an agricultural district or classification." The plain language of the statute is not limited to an "agricultural district." It also includes an "agricultural ... classification."

Furthermore, under this proposal, localities could not unreasonably restrict or regulate "piers or docks attached to upland property zoned to allow agricultural activity." Because property "zoned to allow agricultural activity" may include areas zoned under an agricultural classification, areas designated as agricultural districts, and areas zoned as other classifications that may allow agriculture, each of these areas would be included in the areas afforded protection under the proposed amendment.

Conclusion

Accordingly, it is my opinion that the proposed amendments would apply to areas currently zoned as agricultural districts or classifications, as well any other areas in which the zoning provisions allow for agricultural activity.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General