Can a Florida town's driveway-permit ordinance be applied to a property used for bona fide farming, or do agricultural preemptions block enforcement?

Plain-English summary

The Town of Grant-Valkaria asked whether sections 163.3162(3)(a), 604.50, and 823.14(6), Florida Statutes, precluded enforcement of a town ordinance requiring roadway improvements before issuing a driveway permit for property with a farming operation.

The letter says the Attorney General's Office does not interpret a local code or ordinance. It notes that Ordinance 2008-01 appears to apply to driveway permits for single-family and duplex residential structures. To the extent it is applied only to those structures, the letter says there is no conflict with the statutes described in the request.

For agricultural land used for a farming operation without a residential structure, the letter quotes § 163.3162's restriction on a governmental entity adopting or enforcing a policy to "prohibit, restrict, regulate, or otherwise limit" an activity of a bona fide farm operation on land classified as agricultural under s. 193.461. It says a local regulation may be applied to land used for a farm operation to the extent it does not impose one of those restrictions. The letter describes the ordinance's purpose as providing property access through improvements to public rights-of-way.

The letter's footnotes also point to Op. Att'y Gen. Fla. 2009-26 for the proposition that a local regulation may apply when it does not restrict a farm activity, and to Op. Att'y Gen. Fla. 2013-01 concerning s. 604.50.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What rule did the letter quote about regulating farm operations?
A: It quoted subsection (3)(a) as saying: "A governmental entity may not exercise any of its powers to adopt or enforce any ordinance, resolution, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461."

Q: Can a local regulation apply to land used for a farm operation?
A: The letter says it may be applied to such land to the extent it does not "prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation."

Q: What did the letter say about the Grant-Valkaria ordinance?
A: It said the ordinance appears to apply to driveway permits for single-family and duplex residential structures. It also described the ordinance's purpose, based on the requester's letter, as providing access through improvements to public rights-of-way.

Q: What did the letter say about s. 604.50?
A: Footnote 2 cites Op. Att'y Gen. Fla. 2013-01, which concluded that s. 604.50 exempts nonresidential farm buildings, farm fences, and farm signs from municipal land development regulations.

Q: What did the letter say about s. 823.14(6)?
A: The request asked whether sections 163.3162(3)(a), 604.50, and 823.14(6) precluded enforcement. The analysis quotes and applies subsection (3)(a) of § 163.3162 and does not separately analyze s. 823.14(6).

Background and statutory framework

The letter first notes that this office does not interpret local codes or ordinances. It then distinguishes driveway permits for single-family and duplex residential structures from agricultural land used for a farming operation without a residential structure.

For the latter situation, the letter quotes subsection (3)(a) of § 163.3162 and says a local regulation may be applied to land used for a farm operation to the extent it does not prohibit, restrict, regulate, or otherwise limit an activity of that operation. It describes the ordinance's purpose as providing access through improvements to public rights-of-way.

Citations and references

Statutes:

• sections 163.3162(3)(a), 604.50, and 823.14(6), Florida Statutes
• Section 163.3162(1), Fla. Stat.
• s. 193.461
• s. 604.50, Fla. Stat.

Prior AG opinions:

• Op. Att'y Gen. Fla. 2009-26
• Op. Att'y Gen. Fla. 2013-01

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipal-ordinance-applied-to-farm-land
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8036

Original opinion text

July 14, 2017

Mr. Karl W. Bohne, Jr.

Attorney for the Town of Grant-Valkaria

Post Office Box 410818

Melbourne, Florida 32941-0818

Dear Mr. Bohne:

On behalf of the Town of Grant-Valkaria (town), you ask substantially whether sections 163.3162(3)(a), 604.50, and 823.14(6), Florida Statutes, preclude the enforcement of a town ordinance requiring certain improvements to roadways before a permit will be issued for a driveway to access property upon which a farming operation is located.

While this office does not interpret the provisions of a local code or ordinance, I would note that Ordinance 2008-01 for the town appears to apply to granting driveway permits for single-family and duplex residential structures.[1] To the extent the ordinance is applied only when granting driveway permits for single-family and duplex residential structures, there is no conflict between the ordinance and the before-mentioned statutes.[2] As applied to agricultural land used for a farming operation and not containing a residential structure, the following comments are offered.

Section 163.3162, Florida Statutes, has as its stated purpose "to protect reasonable agricultural activities conducted on farm lands from duplicative regulation."[3] More specifically, in subsection (3)(a), the act states:

"A governmental entity may not exercise any of its powers to adopt or enforce any ordinance, resolution, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461. . .[.]"

This office has found that to the extent a local regulation does not "prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation[,]" it may be applied to land which is used for such an operation.[4] You have provided a synopsis of the requirements that were imposed in the town's ordinance 2008-01 regarding unpaved roads. As reflected in your letter, the purpose of the ordinance is to provide a mechanism for property owners to access their property by providing for improvements to public right-of-ways. To the extent there is no prohibition, restriction, or regulation of farming activity in the town's ordinance, it may be applied to lands zoned for agricultural purposes.

I trust these informal comments will be of assistance to you in the enforcement of the town's driveway permitting ordinance consistently with state law.

Sincerely,

Lagran Saunders

Director

Opinions Division

ALS/tsh

________________

[1] Section 1.1(b)

[2] But see Op. Att'y Gen. Fla. 2013-01, in which this office concluded that s. 604.50, Fla. Stat., exempts nonresidential farm buildings, farm fences, and farm signs from municipal land development regulations, consistent with the statutory exemption from any county or municipal code or fee.

[3] Section 163.3162(1), Fla. Stat.

[4] See Op. Att'y Gen. Fla. 2009-26.