HomeMy WebLinkAboutRogue Ck - Appeal attch 3, AML guideline 2Guidelines for Review of Local Laws
Affectina Direct Farm Marketinq Activities
Typically, "direct farm marketing" encompasses roadside stands, farm markets, farmers'
markets, and "u -pick" or "pick your own operations." However, the Agriculture and Markets Law
(AML) definition of "farm operation" [§301(11)] has been amended in recent years to include
"commercial horse boarding operation," "compost, mulch or other organic biomass crops,"
"commercial equine operation" and "timber operation." Each of these activities may require an
on-farm marketing component that may differ from the typical direct farm market. Additionally,
greenhouse and nursery operations may also market agricultural products produced on their
farms directly to the public.'
Direct farm marketing should be allowed in all areas within a county -adopted, State certified
agricultural district. The degree of regulation of the various forms of direct farm marketing that
is considered unreasonable, however, depends on the nature of the proposed activities and the
size and complexity of the proposed structure. A requirement to apply for a permit is generally
not unreasonable. Depending upon the size and scope of the retail facility or activity, greater
regulation, such as site plan review, may be reasonable.2 The Department urges local
governments to take into account the size and nature of the particular farm market or activity
when setting and administering such requirements. For example, to require a small farm market,
which sells only a minimal amount of off -farm product, to obtain site plan approval may be
unreasonably restrictive.
In some instances, farmers should exhaust their local administrative remedies and seek, for
example, certain permits, exemptions available under a local law or area variances, before the
Department reviews a local law or its administration. However, an administrative
requirement/process may, itself, be unreasonably restrictive. The Department evaluates the
reasonableness of the specific requirement/process, as well as the substantive requirements
imposed on the farm operation. Local laws that the Department has found not to be
unreasonably restrictive include those which regulate the health and safety aspects of the
construction of farm buildings through provisions to meet local building codes or the State
Uniform Fire Prevention and Building Code [("Uniform Code") [unless exempt from the Uniform
Code under Building Code §101.2(2) and Fire Code §102.1(5)] and Health Department
requirements (e.g., for concessions, sanitary facilities, drinking water, etc.). Requirements for
local building permits and certificates of occupancy to ensure that health and safety
requirements are met and a review of a site's ingress and egress as well as parking
requirements are also generally not unreasonably restrictive. Noise may also become an issue.
Farmers need to work with the municipality and neighbors to mitigate noise impacts and/or
place reasonable limits on the hours of operation.
The following are some of the specific matters that the Department considers when reviewing a
local law that affects direct farm marketing:
' Please see Guidelines for Review of Local Laws Affecting Temporary Greenhouses and Review of Local
Laws Affecting Nursery Operations.
2 Please see Guidelines for Review of Local Zoning and Planning Laws for discussion of Site Plan Review
and State Building Code.
Rev. 8/30/16
A. Maximum Dimensions:
Generally the Department will consider whether maximum dimensions imposed by a local law
are sufficient to meet existing and/or future farm needs. For example, many roadside stands are
located within existing garages, barns, and outbuildings that may have dimensions greater than
those set by a local ordinance. Buildings specifically designed and constructed to accommodate
the sale of farm products may also not meet the local requirements. The size and scope of the
farm operation is also considered. Larger farms, for example, cannot effectively market their
produce through a traditional roadside stand
B. Sign Limitations:
Whether or not a limitation on the size and/or number of signs that may be used to advertise a
roadside stand is unreasonable depends upon the location of the stand and the type of produce
sold. A farmer who is located on a principally traveled road probably will not need as many signs
as one who is located on a less traveled road and may need directional signs to direct the public
to their stand. The size of a sign needed may depend on whether the farmer needs to advertise
the availability of several different types of produce or just one or two products.
C. Product Origin:
Some farmers import produce from other farms to sell at their stands to increase the diversity of
products offered or to bridge periods of low supply of commodities produced on-farm. Product
diversity may attract potential customers to a roadside stand or farm market. The Department
believes the sale of some agricultural products grown off the farm should be allowed, but has
not established a percentage of on-farm versus off -farm products for that purpose. The
Department considers the facts of a particular case in making a determination whether a local
law is unreasonably restrictive, but generally would view requiring a "predominance"' of on-farm
products as reasonable. The needs of "start-up" farm operations should also be considered.
These farms often start out selling a large percentage of agricultural products grown off the farm
in order to develop a customer base and maintain income while their farms are growing. If a
percentage of on-farm products were required by a locality, allowing such farms a reasonable
period of time to meet the percentage would be reasonable (see the Department's Guideline for
Review of Local Laws Affecting Preparation and Marketing Activities by Start -Up Farm
Operations).
The Department considers agricultural commodities produced "on-farm" to include any products
that may have been produced by a farmer on their "farm operation," which could include a
number of parcels owned or leased by that farmer throughout a town, county, or the State. The
Department considers all such land, when it is located in a State certified agricultural district, as
part of the farm operation.
D. On-farm preparation of processed foods:
" At least 51% of the agricultural crops, livestock and livestock products sold, on an annual basis, must
be from the farm's own production. Crops, livestock and livestock products that are imported from other
farms must be representative of the crops, livestock and livestock products that the farm grows/raises and
sells. See Guideline for Review of Local Laws Affecting Preparation and Marketing Activities by Start -Up
Farm Operations).
Rev. 8/30/16
Some of the larger farm markets may have facilities for the on-site preparation of processed
foods (e.g. a kitchen, bakeshop, etc.), as well as facilities for consumption of foods (e.g., a
cafe). The Department considers these practices as part of the farm operation as long as the
products that are prepared are predominantly composed of ingredients produced on the farm. It
would not be unreasonable to have a farmer provide the municipality with proof that their
facilities are in compliance with local Health Department and/or Federal, State or local law
requirements.
E. Ag-tourism/recreational activities:
Many farm markets offer some form of on-farm recreational activity such as hayrides, a petting
zoo, or a cornfield maze. These activities are often an important component of farm markets
since they are a useful tool to attract customers. If it can be shown, on a case by case basis,
that an activity will "...contribute to the production, preparation and marketing of crops, livestock,
or livestock products..." [AML §301(11), emphasis added] it may be considered by the
Department to be part of the farm operation. However, the activity, e.g., hayrides, a petting zoo,
or a cornfield maze, must be used as part of the direct marketing strategy of the farm operation
and the primary purpose of the activity must be to sell the farm's products/services, not to serve
as a recreational use of the land. Crops, livestock or livestock products must be grown or raised
and sold through direct marketing to the public at the time the activity is in use since these
activities are designed to attract potential customers to the property so they may purchase
crops, livestock or livestock products. 4
Similarly, the Department has concluded that on-farm special events, such as harvest festivals,
help market the farm operation's crops, livestock and livestock products. These activities, as
well as on-farm recreational activities, are evaluated on a case-by-case basis to determine
whether they are protected as part of the farm operation. The Department interprets AML
§301(11) to include such activities as part of a farm operation under certain conditions. The
events and activities must be: 1) directly related to the sale and promotion of the crops, livestock
and livestock products produced at the farms; 2) incidental and subordinate to the retail sale of
the farm's crops, livestock and livestock products; 3) hosted by the farm; and 4) feature the
farm's crops, livestock and livestock products.
The Department considers events/activities to be "incidental" only when the gross annual
receipts from facility rental/vendor fees, admission fees, sale of non-agricultural products6, etc.
at such events/activities does not exceed 30% of total gross sales from the retail sale on-site of
crops, livestock and livestock products at such events. All products must be sold at a cost no
higher than the current retail price of such products sold at the farm. The primary purpose of
the event/activity is to sell the farm's agricultural commodities and not to gain admission fees or
4 Horse boarding services would be marketed for a "commercial horse boarding operation"; commercial
equine services for a "commercial equine operation"; woodland products for a "timber operation"; and
"compost, mulch or other biomass crops" for farms removing excess agricultural waste. This guidance
document applies to these services/products as well as to "crops, livestock and livestock products."
5 Crops, livestock and livestock products from other farms may be sold at events/activities when they are
representative of the crops, livestock and livestock products that the farm grows/raises and sells and the
annual sales of these "off -farm" produced agricultural products does not exceed 49% of total gross sales
of all crops, livestock and livestock products.
6 If a farm offers food and beverages for sale at such events/activities through vendors, as a convenience
to its customers, and the farm is not charging the vendor or sharing in the profits from the sale of these
non-agricultural products, these sales would not, of course, be counted as gross sales to the farm.
Rev. 8/30/16
rental income. Farmers must keep sufficient records to prove that this requirement is
met. Further. local governments can require the farm to submit an annual report to the
locality showina that these conditions have been met.
In cases where the farm operation offers a recreational activity or holds a special event,
including charitable events, as part of its overall marketing strategy, the event is open to the
general public, the farm's agricultural products/services are sold at the event and no admission,
facility rental and/or vendor fees' are involved, these activities are part of the farm operation and
an evaluation of fees versus farm product sales would be unnecessary. The primary purpose of
the events must still be to market the farm's agricultural commodities and the events must be
sufficiently related to the farm operation.
F. Local Permits and ADprovals for Marketina Activities
In regulating these activities, local governments may require farm landowners that hold such
events to undergo an expedited site plan review process and/or obtain an event permit from the
regulating municipality. The Department discusses an expedited site plan review process in its
Guideline for the Review of Local Zoning and Planning Laws
(httr)://www.agriculture.nv.qov/AP/aaservices/auidancedocuments/305-aZoninaGuidelines.Ddf).
If the municipality requires the farm landowner to obtain an event permit, the permit should be
issued on an expedited basis and not be excessively costly to obtain. For example, an event
permit application meeting these standards might request information on such things as the
date(s) of the event, type of event being held, the anticipated number of people in attendance,
parking, whether catered food or food prepared on-site, the fee charged to rent the facility or the
cost of admission and a description of the buildings to be used during the event. The permit
could also make provisions for any inspections that must be made by the Code Enforcement
Officer/Building Inspector, Fire Marshall and/or Health Department, and other reasonable
requirements that may be pertinent to the holding of such events.
While special use permits should not generally be required for a farm that markets through a
limited number of small scale events; farms which market their through multiple, large-scale
events on a regular basis could be required to obtain a special use permit. The Department
supports such an approach, in certain cases, when the permit process is streamlined, since it
allows local governments to comprehensively address specific facts and circumstances
presented by the farm's events. If a farm claims that the process to obtain a permit, or the
conditions imposed, are unreasonably restrictive, the Department could review the matter under
AML §305-a.
The Department reviews all matters under AML §305-a on a case-by-case basis. A Department
determination that a farm's marketing activities are part of a farm operation and, therefore,
eligible for protection under AML §305-a; does not extend to the sale of products or the use of
marketing activities that were not reviewed by the Department. Therefore, a local approval
Admission fees or minimum donations which are donated to a charity are, of course, not subject to this
condition. Further, the fact that admission fees or all, or a portion of sales, from the event are donated to
a charity does not mean that the primary purpose is not to market the farm's agricultural products. The
Department evaluates all AML §305-a matters on a case-by-case basis. Therefore, if necessary, the
Department would examine the specific event(s) to determine whether it is part of the farm operation.
Rev. 8/30/16
based upon the Department's enforcement of AML §305-a could be revoked if the farm changes
the products that it sells or the marketing activities used.
G. What Types of Activities Can Be Offered at a Farm's Marketing Events?
While events held at a farm which markets its crops, livestock and livestock products may be
considered part of a farm operation; not all activities which may be offered at such events are
part of a farm operation. Specific marketing activities, and the components of those activities,
are evaluated on a case-by-case basis. For example, the Department previously found that the
following activities/uses at a certain farm's festival were not part of the farm operation: hot air
balloon rides, fireworks, pedal karts, cow train and activities such as a jumping pillow and
gemstone mining. The town involved in that matter explored a site plan review law to examine
public events/venues and gatherings at farms.
The Department carefully evaluates farm marketing activities to ensure that the primary purpose
of the events is to sell the farm's products; and that the activities are sufficiently related to the
farm. For example, a corn cannon and pumpkin launcher were found to be part of the
referenced farm's protected marketing activities since the farm's products were sold and directly
used for the activity.
Rev. 8/30/16