HomeMy WebLinkAbout305-aFarmMarketSept30-2019
Rev. 9/30/19 Page 1 of 5
Guidelines for Review of Local Laws
Affecting Direct Farm Marketing Activities
Agriculture and Markets Law (AML) §300 provides that it is the policy of the State to
conserve, protect and encourage the development and improvement of agricultural land for t he
production of food and other agricultural products. The promotion of on-farm marketing of crops,
livestock and livestock products supports and promotes the viability of farm operations, as well
as, preserves the land base. The definition of “farm operation” [AML §301(11)] specifically
includes the land, buildings, equipment and practices that contribute to the production,
preparation, and marketing of crops, livestock and livestock products as a commercial
enterprise. The primary purpose of a farm operation’s marketing events or activities must be to
sell the farm’s crops, livestock and livestock products. Further, the events or activities must be
sufficiently related to the farm operation and the farm must produce enough of its own crops or
livestock products to substantiate the need for a particular type of marketing tool.
Typically, “direct farm marketing” encompasses roadside stands, farm markets, farmers’
markets, “u-pick” or “pick your own operations” and to a limited extent, cafes. 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 t he typical direct
farm market. Additionally, greenhouse and nursery operations may also market agricultural
products produced on their farms directly to the public.1
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
1 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. 9/30/19 Page 2 of 5
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:
A. Maximum Dimensions:
Generally, the Department considers 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
“predominance3” 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
3 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).
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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 and sale of processed foods:
Some 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 the consumption of foods (e.g., a
café). The Department considers these practices to be part of the farm operation as long as the
products that are prepared are predominantly composed of ingredients produced on the farm.
100% of products sold from the on-farm kitchen/cafe must be predominantly composed of
ingredients produced on the farm.4 Crops, livestock and livestock products that are imported
from other farms to be used to prepare the farm’s processed foods must be representative of
the crops, livestock and livestock products that the farm raises. The Department recognizes,
however, that a de minimus percentage of the overall composition of the food product(s)
prepared on-site may include some ancillary ingredients, such as condiments, veggies and
bread or rolls (e.g. the farm sells burgers, sandwiches, wraps, tacos/tortillas, soups, etc. using
the farm’s own meats or vegetables.)
The primary purpose of on-site preparation and sale of processed foods must be to
market the farm’s crops, livestock and livestock products and the farm must demonstrate that
there is a clear connection to the on-farm produced crops, livestock and livestock products. The
farm’s products must be prominently featured at the point of sale. Marketing materials (e.g.
signage noting that the value-added product is composed of on-farm products; brochures,
pamphlets, presentations, photos, branded items, etc.) must be prominently displayed.
In all cases, it would not be unreasonable for the municipality to require that the farmer
provide proof that their facilities comply with local Health Department and/or Federal, State or
reasonable 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 strat egy 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
4 The Department does not protect the sales of pre-packaged, processed products that are customarily
sold at retail outlets. However, some municipalities may allow the sale of a certain percentage of these
products that are locally produced.
Rev. 9/30/19 Page 4 of 5
activities are designed to attract potential customers to the property so they may purchase
crops, livestock or livestock products. 5
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 farm6; 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 products7, 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
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
showing 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 fees8 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 Approvals for Marketing 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
5 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.”
6 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.
7 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.
8 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. 9/30/19 Page 5 of 5
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
(http://www.agriculture.ny.gov/AP/agservices/guidancedocuments/305-aZoningGuidelines.pdf).
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 produce 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 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.