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Key Legal Issues
David W. Owens, Professor, Institute
of Government, The University of North Carolina at Chapel
Hill, CB# 3330, Knapp Building, UNC-CH, Chapel Hill,
N.C. 27599-3330
May 1998
North Carolina cities can regulate agricultural
operations through zoning. [1] There is no agricultural exemption in the city zoning
enabling statute. City zoning can be applied to farm
uses both within a city’s corporate limits and
in any city extraterritorial area. The 1959 legislation
extending extraterritorial authorization to all cities
exempted bona fide farms from zoning coverage because
this exemption existed for county zoning. The farm exemption
in the extraterritorial area of cities was deleted in
1971. By contrast, when the authority to adopt
zoning ordinances was extended to all counties in 1959,
the legislation provided that bona fide farming must
be exempt from zoning regulation. The single exception
to the county zoning exemption for farming operations
concerns hog farms. As the presence of large-scale hog
farms dramatically expanded in North Carolina in the
1990s, steps were taken to provide additional local
regulation of these farms. Several counties adopted
moratoria and health board regulations on large-scale
hog farms in the early and mid-1990’s. A proposal
to allow county regulation of intensive livestock operations
was considered by the Blue Ribbon Study Commission on
Agricultural Waste in 1995-96. However, prior to 1997
the General Assembly elected to enact uniform state
standards for hog lots[2] and to allow no county zoning of hog farms.
In 1997 G.S. 153A-340 was amended to
removed large swine farms from the bona fide farm exemption
from county zoning.[3] All hog farms with 250 or more swine are required to
have an animal waste management system approved by the state.[4] Those hog farms served by an animal waste management
system with a design capacity of 600,000 pounds steady
state live weight or greater can be subjected to county
zoning. A county may subject these large hog farms to
its zoning ordinance, such as by prohibiting their location
in certain zoning districts and establishing conditions
for approval where they are permitted. A county may
not, however, adopt regulations that have the effect
of excluding such farms from the zoned area of the county
nor require the discontinuance of large swine farms
that are in existence at the time county regulations
are adopted. [5]
A critical threshold question related
to the agricultural exemption for all other farming
operations is what constitutes a bona fide farm.
G.S. 153A-340(b)(2) provides that bona fide farm purposes
“include the production and activities relating
or incidental to the production of crops, fruits, vegetables,
ornamental and flowering plants, dairy, livestock, poultry,
and all other forms of agricultural products having
a domestic or foreign market.” Use of farm property
for non-farm purposes can be subject to zoning. Thus
a residence on a farm is generally subject to county
zoning; however, a residential structure occupied exclusively
by temporary farm workers is likely exempt.
Four cases provide additional clarification
on the definition. The first case, Development Associates,
Inc. v. Board of Adjustment, [6] involved a dog-breeding
and kennel facility on a 2.5-acre tract in Wake County.
The county zoning ordinance defined agricultural and
farming purposes to include any area of realty comprising
40 acres or more, or any area smaller than 40 acres
that had an annual gross income of $500 or more from
any agricultural, farming, livestock, or poultry operation,
exclusive of home gardens. The court ruled that G.S.
153A-340 exempted only farming and livestock operations
from zoning. Because G.S. 153A-340 did not define the
terms, the court looked to various agricultural, criminal,
and negligence statutes relating to animals for guidance
on what livestock included. The court concluded that
dogs were not livestock and therefore ruled that the
kennel was subject to county zoning.
The second case, Baucom’s Nursery
Company v. Mecklenburg County,[7] involved a nursery and greenhouse on a 19.6-acre tract
in Mecklenburg County. The county had secured local
legislation in 1967 explicitly authorizing it to define
bona fide farms for the purpose of the G.S. 153A-340
agriculture exemption. The county adopted this definition:
- Farm, Bona Fide. Any tract of land containing
at least three (3) acres which is used for dairying
or for the raising of agricultural products, forest
products, livestock or poultry and including facilities
for the sale of such products from the premises
where produced provided that, a farm shall not be
construed to include commercial poultry and swine
production, cattle feeder lots and furbearing animal
farms.
The court held that the nursery and greenhouse
was a bona fide farm because agricultural operations
included the growing of vegetables, flowers, and shrubs.
The third case, Sedman v. Rijdes,[8] involved a plant and vegetable greenhouse operation
on a forty-one acre tract adjacent to the plaintiff’s
property in Orange County. The operation included four
greenhouses, fans, a loading dock, and some sales of
the plants on the premises. The court dismissed the
contention that the operation was in violation of the
zoning ordinance, ruling the entire horticultural operation
was exempt from zoning as a bona fide farm.
The fourth case, Ball v. Randolph
County Board of Adjustment,[9] held that treatment of petroleum contaminated soil through
a process known as “land farming” can not
be considered an agricultural use. This process of soil
remediation involves transportation of contaminated
soil to the site and treating the soil chemically with
nutrients to stimulate microbial consumption of the
contaminants. The process requires tilling the soil
to stimulate the process. The Randolph County zoning
ordinance did not specifically address this use. The
staff ruled that this was a permitted use in the Residential-Agricultural
district because of its similarity to common farming
practices, a determination upheld by the board of adjustment.
However, on appeal the courts held since no crops, plants,
or other agricultural products were involved, this was,
as a matter of law, a waste treatment process and not
an agricultural use of the land.
G.S. 106-701, limiting local governments’
ability to adopt ordinance making agricultural operation
a nuisance, does apply within cities. However, a substantial
change in an agricultural operation may limit the applicability
of this protection. In Durham v. Britt, 117 N.C. App.
250, 451 S.E.2d 1 (1994), rev. denied, 340 N.C.
260, 456 S.E.2d 829 (1995), the court held that conversion
of three turkey houses to a hog production facility
(consisting of two buildings and a waste treatment lagoon)
is not protected by G.S. 106-701. The court held if
there is a fundamental change in the nature of the agricultural
activity, there is no liability shield.
2. G.S. 106-800 to 106-805.
3. S.L 1997-458.
4. G.S. 143-215.10C.
5. S.L. 1997-458, § 2.2.
6. 48 N.C. App. 541, 269 S.E.2d 700, rev. denied,
301 N.C. 719, 274 S.E.2d. 227 (1980).
7. 62 N.C. App. 396, 303 S.E.2d 236 (1983). Cases decided
in other contexts may also be useful in defining bona
fide farm. In a workers’ compensation case that
also involved an agricultural exemption, the court ruled:
- Traditionally, agriculture has been defined as
“the science or art of cultivating the soil
and its fruits, especially in large areas or fields,
and the rearing, feeding, and management of livestock
thereon, including every process and step necessary
and incident to the completion of products therefrom
for consumption or market and the incidental turning
of them to account.” This traditional definition
has been extended to encompass the storage and marketing
of agricultural products.
Hinson v. Creech, 286 N.C. 156, 159-169,
209 S.E.2d 471, 474 (1974) (citations omitted).
Also, G.S. 105-277.2 defines agricultural
land as being a part of a farm unit that is actively
engaged in the commercial production or growing of crops,
plants, or animals. Similarly, forestland and horticultural
land are defined as areas actively engaged in the
commercial growing of trees, or of fruits, vegetables,
or nursery or floral products, respectively. In all
three instances the activity must be carried out under
a sound management program and must meet size and income
standards set by G.S. 105-277.3. These size and income
standards are as follows: (1) for agricultural lands,
10 acres in actual production with an annual average
gross income in the preceding three years of at least
$1,000; (2) for horticultural lands, at least 5 acres
either in Christmas tree production or with an annual
average gross income in the preceding three years of
$1,000; and (3) for forestland, at least 20 acres in
actual production.
8. __ N.C. App. ___, _492 S.E.2d 620 (1997).
9. ___ N.C. App. ___, ___ S.E.2d ___ (1998). |
