Agricultural Land Use: Zoning Compliance and Property Rights Defense

Agricultural zoning classifications determine which land uses are permitted by right on a given parcel and which require conditional use approval from the local planning commission or zoning board of appeals, and land use and zoning counsel advising on agricultural land use compliance must evaluate whether the proposed farming activities fall within the permitted uses allowed by right under the applicable agricultural zoning district or require a special exception or conditional use permit before operations can lawfully begin.

Many states have enacted agricultural preservation programs, farmland protection acts, and agricultural district laws that restrict non-agricultural use or subdivision of land enrolled in designated programs in exchange for preferential property tax treatment or conservation easements, and land use and real estate counsel advising property owners on agricultural land use restrictions must evaluate whether the property is enrolled in a state agricultural preservation program that limits future land use options and whether any conservation easement recorded against the property restricts specific uses or improvements.

Agricultural land use zoning violations typically arise when a landowner converts previously farmed acreage to residential or commercial use without obtaining zoning reclassification approval, expands a permitted farming activity into a category requiring separate conditional use approval, or operates a facility at a scale exceeding the thresholds permitted in the applicable agricultural zoning district, and environmental liability counsel advising property owners in agricultural land use enforcement proceedings must evaluate whether the violation is subject to a cure period under the applicable zoning ordinance and whether any prior nonconforming use protection applies to activities that predated the current zoning restriction.

Conflicts between agricultural and development interests are among the most common sources of agricultural land use litigation in jurisdictions where residential and commercial development is expanding into traditionally agricultural areas, and real estate dispute resolution practitioners handling agricultural land use conflicts must evaluate whether a developer's proposed project infringes on an established agricultural operation's right to farm under the applicable state right-to-farm law and whether any agricultural preservation easement recorded against an adjacent parcel restricts the developer's ability to use the property in ways incompatible with continued farming.

The permit and approval process for agricultural land use activities varies significantly by jurisdiction, but most counties require at minimum a zoning compliance determination confirming that the proposed use is permitted in the applicable district before any new farming activity begins on a parcel that has not previously been used for that specific type of agriculture, and administrative hearings counsel assisting property owners through agricultural land use approval processes must evaluate whether the proposed use qualifies as a permitted use by right, a conditional use requiring board approval, or a variance requiring demonstration of undue hardship under the applicable zoning ordinance standards.

Agricultural land use activities that involve wetland disturbance, floodplain modification, stream corridor alteration, or groundwater withdrawal are subject to federal and state environmental permitting requirements that operate independently of local zoning approvals, and environmental compliance and litigation counsel advising on agricultural land use environmental requirements must evaluate whether the proposed farming activity requires a Clean Water Act Section 404 permit for any wetland fill or drainage activity and whether any groundwater withdrawal for irrigation purposes exceeds the quantity that can be withdrawn without a state water rights permit.

Zoning variances, conditional use permits, and agricultural land use reclassification applications each require a specific evidentiary showing before the applicable local board or planning commission, and a deficient application that fails to address the board's required findings is routinely denied without recourse, requiring the property owner to wait for the next application cycle while the farming opportunity is delayed. Administrative law counsel preparing agricultural land use permit applications must evaluate whether the application addresses all of the specific criteria the local board is required to consider and whether any neighboring property owner opposition is likely and how it can be anticipated and addressed in the application materials.

When a local zoning authority issues an agricultural land use enforcement notice or a neighboring property owner initiates litigation over the compatibility of a farming activity with adjacent uses, the property owner's initial response determines whether the matter can be resolved administratively or will require judicial intervention that is significantly more costly and time-consuming. Civil litigation and agricultural land use enforcement counsel representing property owners in zoning disputes must evaluate whether any procedural defect in the enforcement notice provides a defense independent of the underlying land use question and whether a negotiated compliance agreement with the zoning authority is available as an alternative to formal adjudication.