Exclusive Agricultural Zoning or Exclusive Earm Use Designations

Typical agricultural zoning policies use minimum lot size and development intensity provisions to promote farm uses. Exclusive agricultural zoning programs go one step further and prohibit most non-farm activities in designated zones. This approach is used on a limited basis in places where agriculture is a critical part of the economy and sociocultural context.

In 1963, Oregon allowed local governments to add Exclusive Farm Use (EFU) designations to the existing suite of zoning and assessment tools designed to conserve farmland for agricultural use. Allowable and conditional uses in EFUs are defined by state statute and implemented via local zoning codes. Non-farm uses allowed in EFUs include resorts, schools, golf courses, agritourism, and mining. EFUs automatically qualify for preferential agricultural assessment if there is an active farm on the parcel.

Non-farm uses within EFUs is an emerging political and research issue. In Oregon, the number of allowed non-farm uses has increased from 6 under the original 1963 legislation to more than 50 today. A study of permitted non-farm uses in the northern Willamette Valley from 1993 to 2015 found that utility and communication facilities, including wind and solar farms, make up 20% of permitted non-farm uses in EFUs, raising concerns that these operations may be competing for EFU land (Metroscape, n.d.). Agritourism is a non-farm use challenge because it can add value to farm operations and support community relationships with farmers, but it also generates traffic and can lead to use conflicts. Oregon currently allows wineries as non-farm uses but excludes breweries. A proposal to permit brewpubs in EFUs was floated in 2018 and is expected to be reconsidered by the Oregon legislature again soon (Perkowski, 2018).

New York state’s 1971 Agricultural and Markets Law allows counties to designate agriculture-only districts and prohibits local governments from adopting plans and zoning ordinances that unreasonably restrict or regulate farm operations within these districts. Another famous example of exclusive agricultural zoning comes from Montgomery County, Maryland, which designated an Agricultural Reserve zone in 1980 to protect agriculture. The Agricultural Reserve zone promotes agriculture as the primary use and limits residential development to one dwelling unit per 25 acres. Within the Agricultural Reserve, the Rural Zone and Rural Cluster Zone allow a mix of farmland, open space, and low-density housing with no more than one dwelling unit per 5 acres.

Right-to-Farm Laws

Right-to-farm laws protect rural agricultural operations that follow standard farming practices from nuisance lawsuits and inappropriate regulation. New York’s 1971 Agricultural and Markets Law—which enabled agriculture-only districts—was the progenitor for right-to-farm laws, which are now enacted in all 50 states (Lapping, Penfold, & Macpherson, 1983). Right-to-farm laws were originally designed to protect rural farms in rapidly urbanizing places where encroaching urban and suburban development may be exposed to smells, noise, and other potential nuisance issues related to farm operations. In such situations where development is “coming to the nuisance,” right-to-farm laws provide farmers with a defense against nuisance lawsuits.

In recent years, both the local food movement and the growing presence of industrial agriculture are changing the role and purpose of right-to-farm laws. For example, these laws are now being invoked to protect concentrated animal feeding operations, known as CAFOs. These confined, industrial farms increasingly dominate livestock and poultry production. In addition to raising animal welfare concerns, CAFOs generate unprecedented pollution and environmental health risks, including water contamination, air pollution, and antimicrobial resistance due to practices related to the use of antibiotics. Right-to-farm laws can inhibit government and community action against such CAFO-generated nuisances.

There are also questions about the application of state right-to-farm rules for urban agriculture. In 2019, the City of St. Petersburg, Florida proposed amendments to Florida’s Right to Farm Act that recognized distinctions between new urban agriculture and existing or rural agricultural uses. The proposal would provide local governments greater flexibility in regulating commercial agriculture in urbanized areas. The intent is to expand opportunities for agricultural uses in urbanized areas while preventing conflicts with urban development.

Fee Simple Acquisition and Purchase of Conservation Easements

Because rural areas typically contain farmland, environmental resources, and scenic or historic landscapes, they are often the target of national, state, and local land acquisition programs. Rural land acquisition programs exist at all levels of government and may be public or private, with land trusts playing a critical role in some areas.

The sale of all rights to land is referred to as fee-simple acquisition. While fee-simple acquisition is straightforward, it is often cost-prohibitive to the non-profits or public entities hoping to protect or conserve rural land. Many communities have supported bond or tax referendums to generate funds to support the acquisition of farmland or environmentally sensitive lands. For example, in 2018 Georgia voters supported the Georgia Outdoor

Stewardship Act that dedicates a portion of the sales and use tax on outdoor sporting goods to land purchase and conservation.

A lower-cost alternative to fee-simple acquisition involves the purchase or donation of conservation easements. Conservation easements can be used to protect a variety of resources, including farmland, wetlands, and wildlife habitat. A landowner can voluntarily sell or donate a conservation easement to a government agency or land trust.

A conservation easement places permanent limitations on some land uses in order to protect the property’s conservation value. For example, in the farmland preservation context, a typical conservation easement removes the right to subdivide and develop land but allows a farmer to continue living on and using the land. For private property owners, potential benefits of a conservation easement include an immediate cash flow as well as reduced property, income, and inheritance taxes. Easements typically require stewardship responsibilities of the landowner or easement holder to ensure that conservation goals are upheld. Conservation easements run with the land, meaning they remain attached to a property regardless of changes in ownership. Easements may be granted in perpetuity or may be time-limited.

Zoning is typically not a significant factor in fee simple acquisition of land, nor in the purchase or donation of conservation easements. However, many land acquisition and conservation programs use criteria including zoning classification, proximity to development pressures, and soil quality when evaluating and ranking land for potential purchase or conservation.

Land trusts and land banks can play a key role in rural land conservation. Land trusts are nonprofit organizations that acquire land or conservation easements for conservation purposes such as farming, wildlife habitat, or water quality. The Trust for Public Land and the American Farmland Trust are two leading land trusts in the US. Land banking is the process of acquiring and accumulating land. In the urban context, banked land is typically used for development. In the rural context, agricultural land banking refers to the acquisition or leasing of land for farming when land reforms, the decline of traditional agrarian societies, or the expansion of industrial agriculture result in changing patterns of ownership and use of agricultural property. In some contexts, land banking is associated with the acquisition of rural land by industrial agricultural interests. In Japan, it plays a role in promoting the viability of local agriculture (see Nishi, this volume).

Transfer of Development Rights

Transfer of development right (TDR) programs enable a private market for the sale of development rights, providing a pathway to land conservation when government and land trust funding for land conservation is limited. In a typical TDR program, a sending area is designated for land

Transferable development rights in a rural-to-urban context

Figure 4.4 Transferable development rights in a rural-to-urban context

Source: Adapted from King County TDR and DNRP Visual Communications Unit, Washington, 2012. © King County, Washington. Reproduced by permission of King County, Washington.

conservation and a receiving area is designated for growth. Private landowners in the sending area can sell their right to develop land and place sending area lands under a conservation easement. Developers can purchase the development rights from sending area landowners and transfer these rights into receiving areas to enable additional development capacity (See Sclar, this volume).

Zoning is often used to designate sending and receiving areas for TDR programs (Linkous, 2016). For example, a community’s comprehensive plan might designate an agricultural zone as the sending area and a town center district as the receiving area. TDR is also used in conjunction with downzoning. A community seeking to protect open space, environmental lands, or farmland may elect to downzone rural areas to achieve the larger lot sizes and lower development intensities appropriate for agricultural or environmental zones. When downzoning is used, TDR helps mitigate impacts to property rights and can compensate landowners for the loss of development potential.

Transfer of development rights programs are a leading tool for growth management that can help reinforce zoning and other land use regulations

Rural Zoning 75 that separate rural and urban areas. The leading TDR program in the US is in King County, Washington, and protects land in rural-designated areas for forestry, agriculture, and wildlife habitat. The program has protected 141,392 acres since 2000 (King County, n.d.). Maryland is well known for several successful county-level TDR programs that protect farmland. The highest performing of these is in Montgomery County, where TDR has protected more than 50,000 acres. However, many TDR programs have failed to generate transfers or achieve significant landscape protections, in large part because the programs are not designed to meet real estate market conditions (Linkous & Chapin, 2014).

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