In Tennessee, what farm buildings escape county zoning, does a family garden count as a farm, and what happens to the adequate-facilities tax when a county can't require a building permit?

Plain-English summary

Tenn. Code Ann. § 13-7-114 exempts buildings and structures on lands used for agricultural purposes from county zoning when those buildings or structures are "incidental to the agricultural enterprise." The exemption applies only to county governments. In 2014, the General Assembly amended the statute to make explicit that residences used by farmers and farm workers are incidental to the agricultural enterprise.

The AG was asked four questions about how the exemption operates. First, what counts as incidental? The AG read "incidental" to mean subordinate or tangentially related to the enterprise. Anything that meets that definition (and the AG specifically confirmed farmer and farm-worker residences) is exempt from county zoning.

Second, does the 2014 amendment conflict with the agriculture definitions in Tenn. Code Ann. §§ 43-1-113 and 43-26-102? No. Those statutes embed a commercial element in the definition of agriculture, and the AG read § 13-7-114 to import the same commercial element through its reference to "agricultural purposes" and "agricultural enterprise."

Third, what is a "farm"? Title 13 does not define the term, but two other statutes do. The Right to Farm Act defines a farm as the land, buildings, and machinery used in the commercial production of farm products or nursery stock. The voter-registration statute defines a farm as at least 15 acres engaged in commercial agriculture with average gross income of at least $1,500 per year over three years. A family garden does not satisfy either definition.

Fourth, does the zoning exemption affect a county's adequate-facilities tax under the County Powers Relief Act? Yes, in practice. The adequate-facilities tax is collected at the moment a building permit is issued. A building that is exempt from a building permit because of § 13-7-114 can slip out of the collection mechanism, even though the residence itself is not "used primarily for agricultural purposes" and therefore would not be exempt from the tax's substantive coverage. Counties that levy an earlier adequate-facilities tax under a pre-June-2006 private act may face the same problem, depending on the wording of the private act.

Currency note

This opinion was issued in 2014. 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 does "incidental to the agricultural enterprise" mean in plain terms?
A: The AG used the dictionary sense: subordinate to something of greater importance, or tangentially related to the principal activity of the enterprise. The example most directly addressed by the 2014 amendment is housing for farmers and farm workers on a working farm. Braden Trust v. Cnty. of Yuma, 69 P.3d 510 (Ariz. Ct. App. 2003), supplied the linguistic framing the AG borrowed.

Q: Does the zoning exemption apply to cities too?
A: No. The statute applies only to county governments. Tenn. Att'y Gen. Op. 10-12 had already said so, and Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405 (Tenn. 2013), is the Tennessee Supreme Court decision discussing the scope of county zoning over agricultural uses.

Q: How big does a farm have to be?
A: Title 13 does not define "farm," but Title 2 (voter registration) requires at least 15 acres engaged in commercial production of crops, plants, animals, nursery, or floral products, with gross agricultural income averaging at least $1,500 per year over a three-year period. The Right to Farm Act (Title 43) defines a farm functionally as the land, buildings, and machinery used in commercial production. A family garden meets neither test.

Q: If a county can't require a building permit, how does it collect the adequate-facilities tax?
A: The county would have a collection-mechanism problem. The County Powers Relief Act ties adequate-facilities tax collection to the building-permit application under Tenn. Code Ann. § 67-4-2910(a)(1). If no building permit is required because of § 13-7-114, the county loses the trigger. The substantive tax exemption in § 67-4-2903(1) does not match the zoning exemption, so a farm residence remains "tax-due" in theory, but the county may have no practical way to collect.

Q: Does the County Powers Relief Act preempt all other county adequate-facilities taxes?
A: Mostly. Under § 67-4-2913, the Act is the "exclusive authority for local governments to adopt any new or additional adequate facilities taxes on development," but counties may continue to exercise authority granted by any private act in effect prior to June 20, 2006. Whether collection of those older private-act taxes is disrupted by § 13-7-114 depends on the private act's wording. The opinion notes 2003 Tenn. Priv. Acts, ch. 21 (Hickman County) as an example where collection is tied to issuance of a certificate of occupancy rather than a building permit.

Q: Does the exemption help non-residence farm structures like barns and greenhouses?
A: Yes. Barns and outbuildings used for agricultural purposes are exempt from county zoning under § 13-7-114 when they are incidental to the agricultural enterprise. They are also exempt from the adequate-facilities tax substantively under § 67-4-2906 because they are barns or other outbuildings used for agricultural purposes.

Background and statutory framework

Tennessee's county-zoning regime is broad in general but has a hard-coded carve-out for agricultural uses. The General Assembly delegates zoning power to counties in Tenn. Code Ann. §§ 13-7-101 to -119, but § 13-7-114 strips that power for buildings or structures on agricultural land when the buildings are incidental to the agricultural enterprise. The companion statute § 5-1-122 strips the parallel general-police-power authority for buildings used primarily for agricultural purposes.

The 2014 amendment in Public Chapter 524 made the residence question explicit. Before 2014, the AG had already concluded in Tenn. Att'y Gen. Op. 13-80 that farmer and farm-worker residences were incidental to the agricultural enterprise. The 2014 amendment wrote that conclusion into the statute.

The opinion's third holding about "farm" definitions matters because the term gets used outside Title 13 in a way that can affect property tax classification, right-to-farm protection, and (downstream) zoning eligibility. The AG identified the Right to Farm Act definition in § 43-26-102 and the voter-registration definition in § 2-2-122(c)(2) as the most useful reference points. Both share a commercial element. The minimum-acreage and minimum-income thresholds in § 2-2-122(c)(2) are the operative numbers.

The adequate-facilities tax wrinkle in the fourth holding reflects the mismatch between two separate statutory schemes. The zoning exemption is about land-use control; the adequate-facilities tax is a revenue tool meant to make new residential development pay for the public-services capacity it consumes. Both schemes carve out agricultural uses, but they do so on slightly different terms. A farm residence is incidental to the agricultural enterprise (and so exempt from zoning), but it is not "used primarily for agricultural purposes" (and so not substantively exempt from the tax). Because the tax is administratively collected at the time of building-permit application, the zoning exemption removes the trigger event for collection.

Citations and references

Statutes:
- Tenn. Code Ann. § 13-7-114 (agricultural-zoning exemption)
- Tenn. Code Ann. § 5-1-118; § 5-1-122 (county general police powers; agricultural exemption)
- Tenn. Code Ann. § 1-3-105(2)(A); § 43-1-113(b)(1) (agriculture definitions)
- Tenn. Code Ann. § 43-26-102 (Right to Farm Act; farm and farm operation)
- Tenn. Code Ann. § 2-2-122(c)(2) (farm; voter registration)
- Tenn. Code Ann. § 67-4-2901 to -2913 (County Powers Relief Act; adequate-facilities tax)
- 2014 Tenn. Pub. Acts, ch. 524 (residence exemption codified)

Cases:
- Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405 (Tenn. 2013) (Tennessee Supreme Court)
- Braden Trust v. Cnty. of Yuma, 69 P.3d 510 (Ariz. Ct. App. 2003) (Arizona Court of Appeals; persuasive authority on "incidental")

Earlier AG opinions:
- Tenn. Att'y Gen. Op. 13-80 (Oct. 22, 2013)
- Tenn. Att'y Gen. Op. 10-12 (Jan. 28, 2010)

Subject

Opinion No. 14-79, County Zoning of Buildings Used as Residences by Farmers and Farm Workers, September 4, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-079.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 4, 2014
Opinion No. 14-79
County Zoning of Buildings Used as Residences by Farmers and Farm Workers

QUESTIONS

1. What qualifies as a building that would be "incidental to the agricultural enterprise" under Tenn. Code Ann. § 13-7-114? What impact does this provision have on local ordinances regulating the type of construction, cost of construction, placement of construction, etc.?

2. Does Tenn. Code Ann. § 13-7-114, as recently amended, conflict with other laws relative to the definition of "buildings used as residences by farms and farm workers," such as Tenn. Code Ann. § 43-1-113 and § 43-26-102?

3. What is the definition of what constitutes a farm? Will a farm be defined by acreage or by gross or net amount of agricultural product produced, and will a family garden qualify?

4. If a building is deemed "incidental to the agricultural enterprise," what effect will Tenn. Code Ann. § 13-7-114 have on a community's Adequate Facilities Tax program?

OPINIONS

1. A building qualifies as "incidental to the agricultural enterprise" when it is subordinate or tangentially related to the enterprise. Any such building would be exempt from county zoning regulation.

2. No.

3. Tennessee Law defines a "farm" as "a tract of land of at least fifteen (15) acres . . . engaged in the production of growing crops, plants, animals, nursery, or floral products [that] produce[s] gross agricultural income averaging at least one thousand five hundred dollars ($1,500) per year over a three-year period" and "the land, buildings, and machinery used in the commercial production of farm products and nursery stock." Tenn. Code Ann. §§ 2-2-122, 43-26-102.

4. Tenn. Code Ann. § 13-7-114 could impact upon a county's collection of its adequate-facilities tax.

ANALYSIS

1. The General Assembly has delegated zoning authority to the county governments. See Tenn. Code Ann. §§ 13-7-101 to -119. But counties may not apply their zoning laws to buildings or structures on lands used for agricultural purposes if the buildings or structures are "incidental to the agricultural enterprise." Tenn. Code Ann. § 13-7-114. Similarly, while counties have been delegated general police powers under Tenn. Code Ann. § 5-1-118, that authority does not include the regulation of "buildings used primarily for agricultural purposes," id. § 5-1-122.

The term "agricultural enterprise" as used in Tenn. Code Ann. § 13-7-114 is not defined within Title 13, but this Office has previously observed that the terms "agriculture" and "agricultural use" have traditionally been broadly defined and that "[c]ourts construing the meaning of 'agricultural enterprise' have generally given the term a broad definition." Tenn. Att'y Gen. Op. 13-80, at 2, 3 (Oct. 22, 2013). Title 1 of the Tennessee Code defines the term "agriculture" to mean:

(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;

(iii) Recreational and educational activities on land used for the commercial production of farm products and nursery stock; and

(iv) Entertainment activities conducted in conjunction with, but secondary to, commercial production of farm products and nursery stock, when such activities occur on land used for the commercial production of farm products and nursery stock.

Tenn. Code Ann. § 1-3-105(2)(A); see also id. § 43-1-113(b)(1) (same). The ordinary meaning of "incidental" includes "'subordinate to something of greater importance'" and "'functions that are tangentially related to the principal activity'" of the enterprise. Tenn. Att'y Gen. Op. 13-80, at 2 (quoting Braden Trust v. Cnty. of Yuma, 69 P.3d 510, 513 (Ariz. Ct. App. 2003)).

This Office cannot of course identify every possible building or structure that would qualify as "incidental to the agricultural enterprise," but in Tenn. Att'y Gen. Op. 13-80, this Office opined that buildings used as residences by farmers and farm workers are incidental to the agricultural enterprise under Tenn. Code Ann. § 13-7-114. In 2014 Tenn. Pub. Acts, ch. 524, the statute was amended to expressly so provide. Such a building or structure would be exempt from county zoning regulation.

2. Tenn. Code Ann. § 13-7-114, as amended, does not create a conflict with other statutes; it stands merely as a narrow exception to a county's broad zoning authority. See Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 425-26 (Tenn. 2013). Tenn. Code Ann. § 43-1-113, which defines the term "agriculture," makes commerce an essential element. See, e.g., id. § 43-1-113(b)(1)(A) ("land, buildings and machinery used in the commercial production of farm products and nursery stock") (emphasis added). The same is true of Tenn. Code Ann. § 43-26-102's definitions of "farm" and "farm operation." See id. § 43-26-102(1), (2). But this commerce element is necessarily also part of Tenn. Code Ann. § 13-7-114, since it applies to buildings and structures on lands used for agricultural purposes, so long as the building or structure is incidental to the agricultural enterprise.

3. While Title 13 does not expressly define a "farm," the Tennessee Code defines "farm" in two other titles. Tenn. Code Ann. § 43-26-102(1) defines a "farm" under the Right to Farm Act as "the land, buildings, and machinery used in the commercial production of farm products or nursery stock." Tenn. Code Ann. § 2-2-122(c)(2) defines a "farm" for voter-registration purposes as "a tract of land of at least fifteen (15) acres constituting a farm unit engaged in the production of growing crops, plants, animals, nursery or floral products. Such farm shall produce gross agricultural income averaging at least one thousand five hundred dollars ($1,500) per year over a three-year period." A family garden is unlikely to qualify as a "farm" under either definition.

4. The County Powers Relief Act, Tenn. Code Ann. §§ 67-4-2901 to -2913, "authorize[s] counties to levy a privilege tax on persons and entities engaged in the residential development of property." Tenn. Code Ann. § 67-4-2902. Except as discussed below, it is the "exclusive authority for local governments to adopt any new or additional adequate facilities taxes on development." Id. § 67-4-2913. "Development" under this statute means "the construction, building, erection, or improvement to land by providing a new building or structure that provides floor area for residential use," and "residential development" means "the development of any property for a dwelling unit or units." Id. § 67-4-2903(6), (13). The term "building" expressly does not mean "any structures used primarily for agricultural purposes." Id. § 67-4-2903(1). See also id. § 67-4-2906 ("This part shall not apply to development of: . . . [b]arns or other outbuildings used for agricultural purposes.").

Tenn. Code Ann. § 13-7-114 could have an impact on a county's collection of its adequate-facilities tax, because there is not complete overlap between the buildings exempted by § 67-4-2903 and those exempted by § 13-7-114. For example, a building used as a farm residence is "incidental to the agricultural enterprise" and thus exempt from any building-permit requirement under § 13-7-114, as discussed above. But such a residence is likely not "used primarily for agricultural purposes" (emphasis added), and thus would not be exempt from the adequate-facilities tax under § 67-4-2903(1). Collection of that tax, however, is initiated at the time of application for a building permit. Tenn. Code Ann. § 67-4-2910(a)(1). Without the requirement for a building permit, there would be no mechanism for collecting the tax.

A county may, however, continue to exercise the authority granted by any private act in effect prior to June 20, 2006, to levy or collect similar development taxes. Id. § 67-4-2913. Whether a county's collection of such taxes may be similarly hampered by § 13-7-114 will depend on the specific provisions of the private act and any local implementing laws. See, e.g., 2003 Tenn. Priv. Acts, ch. 21, § 9 (providing that land-development privilege tax in Hickman County "shall be collected at the time of application for a certificate of occupancy"); see also id. § 2(e) (defining "certificate of occupancy" as "a license for occupancy of a building or structure issued in Hickman County" and providing that "[s]uch certificate shall not indicate compliance with any federal, state or local building codes").

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JASON I. COLEMAN
Assistant Attorney General

Requested by:
The Honorable David A. Shepard
State Representative
34 Legislative Plaza
Nashville, Tennessee 37243