Does letting agriculture happen 'by right' in a Rural Residential zone turn it into an agricultural zone under Virginia's Right to Farm Act?

Plain-English summary

In June 2013, Delegate Brenda Pogge asked the AG to clarify a tricky point about how Virginia's Right to Farm Act intersects with residential zoning. § 3.2-301 of the Act says "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." Some localities allow farming "by right" inside zones they label Rural Residential. Did that turn those Rural Residential zones into agricultural classifications, triggering the Act's protections?

The AG said no. Two separate legislative actions go into zoning:

1. Creating the zones themselves (defining classifications and districts).
2. Setting the rules that apply within each zone (what uses are allowed by right, what uses need a special permit).

Rural Residential, the AG explained, is a residential classification. Its purpose is to promote rural-character residential uses, not agricultural production. Some agricultural uses might be allowed inside that classification, often the less intensive ones, but allowing them "by right" is a decision about what regulations apply within an already-defined residential zone. It does not transform the zone into an agricultural classification. The two layers of zoning authority remain distinct.

The AG gave the menu of choices a locality has within a residential zone: allow only incidental gardens for home consumption, allow all agricultural uses by right, or prohibit all agricultural uses unless a special exception or conditional use permit is granted. Whatever choice it made, the zone stayed residential and § 3.2-301 did not apply.

The opinion ended with a separate, related point on vested rights. Allowing an activity by right in a zoning ordinance does not by itself vest property rights in a landowner. The AG quoted the three-part test: an owner must (i) obtain or be the beneficiary of a significant affirmative governmental act that remains in effect allowing development of a specific project; (ii) rely in good faith on it; and (iii) incur extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on it. So a landowner farming by right in a Rural Residential zone does not automatically have a vested right, though other conditions may exist that do vest such rights.

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.

Background and statutory framework

Virginia's Right to Farm Act limits localities' ability to regulate agricultural operations through zoning. § 3.2-301 specifically prevents counties from requiring special exceptions or special use permits for production agriculture or silviculture in areas zoned "as an agricultural district or classification."

The AG described zoning as the process of classifying land within a locality into areas and districts and prescribing regulations on building design, placement, and use. He used that description to draw the two-layer distinction: (1) creating classifications/districts, (2) setting use regulations inside them.

The opinion closed with the vested-rights point, quoting a three-part test for when a landowner has a vested right against a zoning change.

Common questions

Q: If a Virginia locality lets me farm 'by right' in a Rural Residential zone, am I protected by the Right to Farm Act?
A: Per this opinion, not by § 3.2-301. The Act's special-use-permit protections apply only to agricultural districts or classifications. A Rural Residential zone is residential, even if it allows agriculture.

Q: Can a county allow agriculture by right in a Rural Residential zone and still revoke that allowance later?
A: Yes, in the AG's view, subject to the usual zoning processes. By-right authorization is a regulatory choice within the zone, not a vested right for the landowner. The opinion's three-part test requires a significant affirmative governmental act, good-faith reliance, and substantial expense for a specific project before vested rights kick in.

Q: Could a locality choose to allow only incidental backyard gardens in a Rural Residential zone?
A: Yes. The locality has wide discretion in deciding which uses are by-right, which require a special exception, and which are prohibited within a residential classification.

Q: What is the difference between a 'classification' and a 'district' in Virginia zoning?
A: The AG drew on dictionary definitions: a "class" is a group of qualities or activities with common attributes; a "district" is a geographic area into which a locality is divided for administrative purposes. So the classification is what the zone is called and what kind of uses it groups; the district is the actual mapped area.

Q: Did the AG say anything about how localities can promote agriculture in residential zones?
A: He noted that allowing less-intensive agricultural uses by right in residential zones is a legislative choice, neither required nor prohibited. The locality can also require special exceptions, prohibit all agriculture, or anything in between, as long as it stays within general zoning authority.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/11-132_Pogge.pdf

Original opinion text

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

June 21, 2013

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

The Honorable Brenda L. Pogge
Member, House of Delegates
Post Office Box 1386
Yorktown, Virginia 23692

Dear Delegate Pogge:

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

Issues Presented

You ask whether allowing agriculture as a "by right" use in areas zoned "Rural Residential" constitutes a zoning classification as used in § 3.2-301, part of the Virginia Right to Farm Act (the "Act"). You are particularly concerned about language in the Act stating that "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."

Response

It is my opinion that allowing agriculture "by right" in areas zoned Rural Residential does not constitute a zoning classification as used in § 3.2-301.

Applicable Law and Discussion

Zoning is a local legislative action for "the process of classifying land within a locality into areas and districts, such areas and districts being generally referred to as 'zones'." It includes "the prescribing and application in each area and district of regulations concerning building and structure designs, building and structure placement and uses to which land, buildings and structures within such designated areas and districts may be put." In other words, the exercise of zoning authority by a locality involves the application of two, distinct aspects of legislative authority.

The first is the creation of "zones." This exercise of authority includes creating classifications and districts. A "class" is defined as "[a] group of . . . qualities or activities that have common characteristics or attributes." A "district" is defined as "[a] territorial area into which a . . . political subdivision is divided for . . . administrative purposes." Accordingly, for these purposes, a classification is a description of an activity or activities with common attributes, while a district denotes a specific geographic area within which such activities may be authorized. As discussed below, allowing agriculture "by right" in a "Rural Residential" zone is not a classification issue.

The second exercise of legislative authority is the creation of certain defined regulations regarding use, appearance and structure, among other things, that will apply within the districts. This second action includes prescribing what activities are authorized by right, i.e., by virtue of fitting within the classification or lying within the boundaries of the district; as opposed to specifying what activities are allowed in the particular district or classification only if additional conditions beyond those routinely applicable to the district or classification are met, i.e., activities that require special or conditional use permits. This aspect of the exercise of legislative authority does not define the zone, but clarifies what may occur within that zone. Your inquiry relates to the legislative authority regarding the regulations that will apply within a district.

For purposes of this opinion I will assume that the zoning classifications to which you refer are those routinely found in local governments in Virginia. In that case, a Rural Residential zoning district would be considered a residential classification. Such a classification does not promote agricultural and silvicultural activities within its geographic boundaries; it promotes residential uses in rural areas. Certain types of agricultural activities might be allowed in such a district. Often, uses that are considered "less intensive" than those authorized by the zoning classification will be authorized as "by right" uses in a district. That does not change the nature of the district or the classification, however. These are merely legislative choices regarding what restrictions to place on or in any particular category. A legislative choice could be made to allow only incidental agricultural uses in residential zones, i.e., gardens for home consumption only. All agricultural uses could be allowed. All agricultural uses could be prohibited unless a special exception or conditional use permit is granted. But in a residential zoning district, § 3.2-301 would not be applicable because it is not "an agricultural district or classification" referred to by the Act.

A final point is that an owner's existing property rights may be vested and therefore unaffected by future zoning changes provided he:

(i) obtains or is the beneficiary of a significant affirmative governmental act which remains in effect allowing development of a specific project, (ii) relies in good faith on the significant affirmative governmental act, and (iii) incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative governmental act[.]

Each of these conditions must be met before a right is vested. Merely authorizing an activity in a zoning ordinance does not, by itself, create a vested right. Consequently, authorizing agriculture as a "by right" use in Rural Residential zones does not, by itself, vest any rights in a property owner, but other conditions may exist that vest such rights in a property owner.

Conclusion

Accordingly, it is my opinion that authorizing agricultural uses in a Rural Residential zoning district does not create an agricultural district or classification as those terms are used in § 3.2-301.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General