Can Tennessee cities charge for building permits when the construction is on land used for agriculture?

Plain-English summary

Representative Jim Hackworth asked the AG whether Tennessee Code § 6-54-126, which protects agricultural land from municipal zoning interference, also blocks a city from charging fees for building permits on agricultural land. AG Cooper said no.

The protective statute came out of the 1998 Public Chapter 1101 growth-policy act and applies to "land that is used for agricultural purposes as of May 10, 1998." The text limits a city's "zoning power" so it cannot interfere with using that land for agricultural purposes. The verb "use" is the key. The statute is about what the land is used for, not about what is built on it. Cooper compared this with two other statutes that distinguish between regulating "uses of land" (which the agricultural-land statute touches) and regulating "buildings and structures" (which it does not):

• Tenn. Code Ann. § 13-7-201(a)(1), the general municipal zoning power, separately authorizes cities to regulate location, height, bulk, number of stories, size, lot coverage, yards, and uses of buildings and land. The list pairs "uses" with "buildings and structures" as separate categories.
• Tenn. Code Ann. § 13-7-114 (county zoning) similarly distinguishes building regulation (and explicitly bars building-permit requirements on agricultural land for county zoning) from regulation of agricultural uses (which it equally protects).

Section 6-54-126 only addresses the second category for cities (the use of land), not the first (the buildings on it). So a city retains its authority to regulate construction on agricultural land and to charge a fee for a building permit. The opinion also rejects the argument that the broad definition of "agriculture" in § 1-3-105(2) (which includes land, buildings, and machinery) somehow expands § 6-54-126. The definition tells you what counts as agriculture; it does not enlarge the specific limit set on municipal authority.

A footnote flags an interesting wrinkle: the second sentence of § 13-7-114 (which protects agricultural uses, not building permits) appears to apply to both counties and cities even though the first sentence (the building-permit exemption) appears to apply only to counties. The opinion attributes this to a codification quirk. As originally enacted in 1935, both sentences applied only to counties.

Currency note

This opinion was issued in 2010. 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: I'm building a barn on my farm inside city limits. Can the city require a permit and charge me for it?
A: Under this opinion, yes. The statute that protects agricultural use does not protect the buildings constructed on the land. A city can require a building permit and charge a fee under its general municipal authority.

Q: Could the city zone my farmland out of agricultural use?
A: No, under § 6-54-126, if the land was being used for agricultural purposes as of May 10, 1998, the city cannot use its zoning power to interfere with the continued use of that land for agricultural purposes. The use is protected. The buildings constructed for that use are not.

Q: Why does it matter whether my land was being used for agriculture on May 10, 1998?
A: That is the trigger date in § 6-54-126. The protection applies only to land used for agricultural purposes as of that date. Land that started being farmed later is not within the statute. The cutoff was tied to the 1998 enactment of the growth-policy act.

Q: What about counties? Can a county charge for a building permit on agricultural land?
A: For counties, the answer is more restrictive. Tenn. Code Ann. § 13-7-114 expressly says the county zoning chapter "shall not be construed as authorizing the requirement of building permits" on agricultural land, with limited exceptions for land near state highways, public airports, or public parks. The opinion notes this limit but does not address county fees in detail; the question was about cities.

Q: Does this opinion mean a city can require permits for any structure on a farm?
A: It means the agricultural-land protection does not bar permit requirements. A city must still have authority to regulate the structure under its general zoning and building-code authority, and the city's own ordinance must impose the permit requirement. The opinion only resolves the question of whether § 6-54-126 trumps a permit requirement; it does not answer whether any specific city actually requires the permit.

Q: Does the broad definition of "agriculture" in § 1-3-105(2) (which mentions "land, buildings and machinery") help me argue my building is protected?
A: The opinion explicitly rejects that argument. The definition statute tells you what "agriculture" means in code references. It does not expand the specific protection in § 6-54-126, which is focused on the use of land.

Q: What if my property is still in farm use but I want to build something for non-agricultural use (say, a residence I plan to rent)?
A: That is outside the protective statute either way. The statute protects agricultural use; building a non-agricultural rental is not such a use. The city can apply both zoning rules and building-permit requirements.

Background and statutory framework

The 1998 General Assembly passed Public Chapter 1101, the "Tennessee Growth Policy Act" (now codified at Tenn. Code Ann. § 6-58-101 et seq.), to create a structured approach to municipal annexation, county growth planning, and urban-versus-rural land allocation. Section 22 of that Act, codified at Tenn. Code Ann. § 6-54-126, added a specific protection for agricultural land:

"For any land that is used for agricultural purposes as of May 10, 1998, a municipality may not use its zoning power to interfere in any way with the use of such land for agricultural purposes as long as the land is used for agricultural purposes."

The statute is a limit on the general municipal zoning grant in Tenn. Code Ann. § 13-7-201(a)(1), which gives cities authority over "the location, height, bulk, number of stories and size of buildings and other structures, the percentage of the lot which may be occupied, the sizes of yards, courts and other open spaces, the density of population, and the uses of buildings, structures and land for trade, industry, residence, recreation, public activities and other purposes." The list itself draws a distinction between regulating "buildings and structures" and regulating "uses of land." Section 6-54-126 only addresses the second of those categories.

Tenn. Code Ann. § 13-7-114 (the county zoning chapter, but also relevant background) does the same thing more explicitly. Its first sentence forbids the county zoning chapter from being construed to authorize building permits on agricultural land (with exceptions for highway, airport, and park proximity). Its second sentence similarly forbids the chapter from being construed to limit or affect agricultural uses of land. The statute paired the two protections (building permits and use) for counties. The opinion notes a codification puzzle: the second sentence is now read to apply to both counties and cities, although both sentences applied only to counties when originally enacted in 1935.

The textual takeaway: the protective statute for cities (§ 6-54-126) is a use-of-land protection, parallel only to the second sentence of § 13-7-114, and not to the first sentence's building-permit exemption. The legislature could have written a building-permit exemption for cities, paralleling the county exemption, but did not. Cooper's analysis respects that drafting choice.

The broad agriculture definition in Tenn. Code Ann. § 1-3-105(2) (covering land, buildings used in commercial production of farm products, activities carried on in connection with such production, and recreational and educational activities on such land) is also discussed. The opinion treats this as a definition of what "agriculture" means in code references, not as an expander of substantive protections elsewhere in the code. Reading § 1-3-105(2) into § 6-54-126 would convert a narrow use-of-land protection into a sweeping protection of all agricultural buildings and machinery from any city regulation, an outcome inconsistent with the structure of § 13-7-201(a)(1) and § 13-7-114.

Citations and references

Statutes:

• Tenn. Code Ann. § 1-3-105(2) (definition of "agriculture")
• Tenn. Code Ann. § 6-54-126 (municipal zoning may not interfere with agricultural use)
• Tenn. Code Ann. § 6-58-102 (Public Chapter 1101, growth policy purpose)
• Tenn. Code Ann. § 6-58-107 (county growth plans)
• Tenn. Code Ann. § 6-58-111 (annexation under growth plan)
• Tenn. Code Ann. § 13-7-114 (county zoning agricultural exemption, including building-permit exemption)
• Tenn. Code Ann. § 13-7-201(a)(1) (municipal zoning powers)

Legislative history:

• Public Chapter 1101 of the Public Acts of 1998 ("Tennessee Growth Policy Act")
• Public Chapter 33, § 11, 1935 Tenn. Pub. Acts (origin of § 13-7-114 protections, originally counties only)
• Public Chapter 86, § 1, 1941 Tenn. Pub. Acts (amendment to § 13-7-114)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-012.pdf

Original opinion text

Ability of Municipalities to Charge a Fee for Building Permits for Agricultural Land

QUESTION

Does Tenn. Code Ann. § 6-54-126 prohibit a municipality from charging for a building permit for land being used for agricultural purposes?

OPINION

No. Tenn. Code Ann. § 6-54-126 is concerned only with a municipality's power to regulate the use of land and not with that municipality's ability to require building permits. Accordingly, a municipality has the power to charge a fee for a building permit on agricultural land. Furthermore, the definition of "agriculture" in Tenn. Code Ann. § 1-3-105(2) does not broaden Tenn. Code Ann. § 6-54-126 so that a municipality is prohibited from charging a fee for a building permit on agricultural land.

ANALYSIS

The General Assembly enacted Chapter 1101 of the Public Acts of 1998 (the "Act") "to establish a comprehensive growth policy for" municipalities and counties in Tennessee. Ch. 1101, § 3, 1998 Tenn. Pub. Acts (codified as amended at Tenn. Code Ann. § 6-58-102 (2005)). The Act required the establishment of a growth plan within each county that sets forth, among other things, "urban growth boundaries, planned growth areas, and rural areas" within that county. Ch. 1101, § 8, 1998 Tenn. Pub. Acts (codified as amended at Tenn. Code Ann. § 6-58-107 (2005)). The Act affected the manner in which a municipality annexes territory located inside or outside of the "urban growth boundary" of that municipality. Ch. 1101, § 12, 1998 Tenn. Pub. Acts (codified as amended at Tenn. Code Ann. § 6-58-111 (Supp. 2009)). Section 22 of the Act also placed a limitation on the zoning power of a municipality with regard to the use of agricultural land. Ch. 1101, § 22, 1998 Tenn. Pub. Acts (codified as amended at Tenn. Code Ann. § 6-54-126 (2005)). Tenn. Code Ann. § 6-54-126 (2005) provides that

[f]or any land that is used for agricultural purposes as of May 10, 1998, a municipality may not use its zoning power to interfere in any way with the use of such land for agricultural purposes as long as the land is used for agricultural purposes.

(emphasis added). This statute is a limitation on Tenn. Code Ann. § 13-7-201(a)(1) (Supp. 2009), which empowers municipalities

to regulate the location, height, bulk, number of stories and size of buildings and other structures, the percentage of the lot which may be occupied, the sizes of yards, courts and other open spaces, the density of population, and the uses of buildings, structures and land for trade, industry, residence, recreation, public activities and other purposes.

(emphasis added). The language of Tenn. Code Ann. § 13-7-201(a)(1) (Supp. 2009) indicates that there is a difference between regulating "the location, height, bulk, number of stories and size of buildings" and regulating "the uses ... of land." This distinction also is present in Tenn. Code Ann. § 13-7-114 (1999).

This part shall not be construed as authorizing the requirement of building permits nor providing for any regulation of the erection, construction, or reconstruction of any building or other structure on lands now devoted to agricultural uses or which may hereafter be used for agricultural purposes, except on agricultural lands adjacent or in proximity to state federal-aid highways, public airports or public parks; provided, that such building or structure is incidental to the agricultural enterprise. Nor shall this chapter be construed as limiting or affecting in any way or controlling the agricultural uses of land.

(emphasis added).

By focusing on "the use of [the] land for agricultural purposes," Tenn. Code Ann. § 6-54-126 (2005) is concerned only with a municipality's power to regulate the use of land and not with that municipality's ability to regulate the location, height, bulk, number of stories and size of buildings or to require building permits. Accordingly, because Tenn. Code Ann. § 6-54-126 (2005) does not prohibit the regulation of buildings or the requirement of building permits, the statute cannot be read as prohibiting a municipality from charging a fee for a building permit for agricultural land.

Finally, the definition of "agriculture" in Tenn. Code Ann. § 1-3-105(2) (Supp. 2009), does not broaden Tenn. Code Ann. § 6-54-126 (2005) so that a municipality is prohibited from requiring or charging for building permits on agricultural land.

1-3-105. Definition of terms used in code. As used in this code, unless the context otherwise requires:
(1) ...
(2)(A) "Agriculture" means:
(i) The land, buildings and machinery used in the commercial production of farm products and nursery stock;
(ii) The activity carried on in connection with the commercial production of farm products and nursery stock; and
(iii) Recreational and educational activities on land used for the commercial production of farm products and nursery stock[.]

Tenn. Code Ann. § 1-3-105(2) (Supp. 2009) (emphasis added). While the term "agriculture" includes "land, buildings and machinery," the language of Tenn. Code Ann. § 6-54-126 (2005) limits municipalities only with regard to the use of land. Furthermore, the context of Tenn. Code Ann. § 6-54-126 (2005) requires that the statute be read as a limitation on a municipality's power to regulate the use of agricultural land and not on its power to require or charge for building permits. As discussed above, other statutes evidence a distinction between such powers, and Tenn. Code Ann. § 6-54-126 (2005) focuses solely on the former.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

NICHOLAS G. BARCA
Assistant Attorney General

Requested by:
The Honorable Jim Hackworth
State Representative
37 Legislative Plaza
Nashville, Tennessee 37243-0133