Are cotton gins, grain elevators, slaughterhouses, processing plants, and milk bottling plants automatically exempt from Tennessee county zoning rules because they handle agricultural products?

Subject

Exemption from County Zoning Regulation for Buildings on Land Used for Agriculture

Plain-English summary

Senator Frank Niceley asked whether Tennessee's agricultural exemption from county zoning automatically reaches cotton gins, grain elevators, slaughterhouses, processing plants, and milk bottling plants. The short answer: no, there's no blanket exemption.

Tenn. Code Ann. § 13-7-114(a) creates an exemption from county zoning, but it is narrow. The structure must satisfy two affirmative requirements and avoid two location-based exclusions:

1. The structure must be on lands "devoted to agricultural uses."
2. The structure must be "incidental to the agricultural enterprise" taking place on that land.
3. The exemption does not apply if the structure is on agricultural lands "adjacent or in proximity to state federal-aid highways, public airports or public parks."
4. The exemption does not apply if the structure is on land in the one-hundred-year flood plain.

So a cotton gin or grain elevator on a farm where cotton is grown or grain is harvested can fit the exemption, because the gin or elevator is incidental to the on-site farming enterprise. Brunetti v. Board of Zoning Appeals, 1999 WL 802725 (Tenn. Ct. App. 1999), is cited for the proposition that grain bins on a farm where grain was grown were exempt. A farmer slaughtering his own cattle or bottling his own farm's milk in a structure on the same farm fits the exemption.

But a stand-alone processing facility, one that buys in product from off-site farms and processes it as a manufacturing operation, is not "incidental" to any agricultural enterprise on the underlying land. It is a manufacturing or processing facility, and ordinary county zoning applies. The AG cites Tenn. Att'y Gen. Op. 8-145 (Sept. 10, 2008), which concluded that a commercial sawmill obtaining timber from off-site is not an agricultural use of the land.

The AG's footnote also clarifies that § 13-7-114 applies only to county zoning, not municipal zoning. Cities can regulate these structures under their own zoning power.

What this means for you

If you operate a farm and want to add processing on-site

If you grow grain and want to install a grain bin, slaughter cattle you raised, bottle milk from your own dairy, or gin cotton from your own fields, the structure can fit § 13-7-114(a) because it is incidental to the agricultural enterprise on the same land. Confirm two location-based exclusions: are you near a state federal-aid highway, public airport, or public park? Are you in the 100-year flood plain? If yes to either, the county exemption is unavailable, and you need standard zoning approval.

If you want to build a processing facility that takes product from off-site farms

You are outside the agricultural exemption. A commercial cotton gin, slaughterhouse, dairy, or grain elevator that processes product trucked in from other farms is a manufacturing operation, not an agricultural one. County zoning applies. Plan your project as you would any other industrial or commercial site: zoning review, permits, public hearings as required.

If you are a county zoning official

A bare structure-and-product test is wrong. Don't approve or deny based only on whether the building houses a "gin" or a "slaughterhouse." Ask two more questions: does the on-site land grow the input agricultural product? Does the operation primarily serve the on-site farm? If yes to both, the exemption likely applies (subject to highway/airport/park proximity and flood-plain checks). If no, the building is subject to ordinary zoning regardless of how agricultural-sounding its name is.

If you are a city zoning official

§ 13-7-114 does not apply to your jurisdiction. Tenn. Att'y Gen. Op. 10-12 (Jan. 28, 2010) confirmed this exemption is county-only. Municipal zoning controls these structures within city limits regardless of the agricultural-use analysis.

Common questions

Q: Can I put up a grain elevator on my own grain farm without a permit?
A: Probably yes under § 13-7-114(a), if your farm is the source of grain stored in the elevator and the farm is not near a federal-aid highway, public airport, or public park, and not in the 100-year flood plain. The exemption removes the building-permit requirement; check with your county for any other applicable rules.

Q: I want to build a slaughterhouse that takes cattle from regional farms. Am I exempt?
A: No. A facility that takes cattle from off-site farms is processing or manufacturing, not agricultural. § 13-7-114(a) does not apply, and county zoning rules govern.

Q: My farm is two miles from a state highway. Am I in "proximity"?
A: That's a fact question the statute leaves to courts and zoning boards. § 13-7-114(a) doesn't define "in proximity to," and counties have varied in their interpretations. Get a written determination from your county zoning office before you build.

Q: Does this exemption help me with city zoning if my farm is annexed?
A: No. The exemption is county-only. If your land is annexed into a city, municipal zoning applies and the agricultural exemption does not.

Q: What about a sawmill that processes timber from my own woodlot?
A: A sawmill processing your own timber is more analogous to bottling your own milk: incidental to the agricultural enterprise on your land. A sawmill that brings timber from off-site is not. Tenn. Att'y Gen. Op. 8-145 addresses the off-site case.

Q: Does the exemption apply to environmental or health regulations?
A: No. § 13-7-114 is a zoning exemption only. Environmental, health, food-safety, USDA, and similar regulations apply separately and are not addressed here.

Background and statutory framework

Tennessee's county-zoning enabling statute is found in Title 13, Chapter 7. Within that chapter, § 13-7-114(a) creates a specific exemption for agricultural buildings:

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.

Two affirmative requirements: agricultural use of the land, and incidentality to that agricultural enterprise. Two location-based exclusions: proximity to federal-aid highways, public airports, or public parks; and presence in the one-hundred-year flood plain (under § 13-7-114(c)(2)).

The "incidental" requirement is what stops the exemption from sweeping in commercial processing operations that happen to handle agricultural products. Brunetti v. Board of Zoning Appeals, No. 01A01-9803-CV-00120, 1999 WL 802725, at *7 (Tenn. Ct. App. Oct. 7, 1999), held that grain bins placed on property where the grain was grown and harvested were incidental and exempt. The reverse situation, a sawmill obtaining timber from off-site, was addressed in Tenn. Att'y Gen. Op. 8-145 (Sept. 10, 2008): it is not an agricultural use of the underlying land, and is therefore not exempt.

The statute is county-only. Tenn. Att'y Gen. Op. 10-12 (Jan. 28, 2010) confirms § 13-7-114 has no application to municipalities.

Citations

Statutes:
- Tenn. Code Ann. § 13-7-114 (county-zoning agricultural exemption)
- Tenn. Code Ann. § 13-7-114(a) (general exemption text)
- Tenn. Code Ann. § 13-7-114(c)(2) (flood-plain exclusion)

Cases:
- Brunetti v. Board of Zoning Appeals, No. 01A01-9803-CV-00120, 1999 WL 802725, at *7 (Tenn. Ct. App. Oct. 7, 1999) (grain bins on grain farm exempt)

Prior AG opinions:
- Tenn. Att'y Gen. Op. 8-145 (Sept. 10, 2008) (commercial sawmill obtaining timber from off-site is not an agricultural use)
- Tenn. Att'y Gen. Op. 10-12 (Jan. 28, 2010) (statute applies to counties only)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2022/op22-07.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 13, 2022
Opinion No. 22-07
Exemption from County Zoning Regulation for Buildings on Land Used for Agriculture

Question
Does Tenn. Code Ann. § 13-7-114 exempt from county zoning regulation cotton gins, grain
elevators, slaughterhouses, processing plants, and milk bottling plants?

Opinion
No, there is no blanket exemption from county zoning regulation for cotton gins, grain
elevators, slaughterhouses, processing plants, or milk bottling plants. A structure housing these
operations is exempt from county zoning regulations only if the structure is located on lands
devoted to agricultural purposes and is incidental to the underlying agricultural enterprise.

ANALYSIS

To be exempt from county zoning regulation under Tenn. Code Ann. § 13-7-114, a building
or structure must meet two requirements: (1) it must be located on lands "devoted to agricultural
uses;" and (2) it must be "incidental to the agricultural enterprise." Tenn. Code Ann.
§ 13-7-114(a). The exemption does not apply, however, if the building or structure is located on
agricultural lands in proximity to state federal-aid highways, public airports, or public parks. Id.
Nor does the exemption apply if the building or structure is located on land located within the one-
hundred-year flood plain. Tenn. Code Ann. § 13-7-114(c)(2).

Thus, a cotton gin, grain elevator, slaughterhouse, processing plant, or milk bottling plant
would be exempt from county zoning regulation under Tenn. Code Ann. § 13-7-114 only if it is
(1) located on lands devoted to agricultural uses and (2) incidental to the agricultural enterprise.
In theory, a farmer could slaughter his own cattle or bottle milk produced on the farm, and the
buildings or structures used in that process would be exempt from county zoning regulation. See,
e.g., Brunetti v. Bd. of Zoning Appeals, No. 01A01-9803-CV-00120, 1999 WL 802725, at *7 (Oct.
7, 1999) (no perm. app. filed) (holding that grain bins placed on property where grain was grown
and harvested were exempt from county zoning regulation). But if the cotton gin, grain elevator,
slaughterhouse, processing plant, or milk bottling plant is not located on land that is otherwise
used for related agricultural purposes, then the building or structure is merely a manufacturing or
processing facility that is not incidental to an agricultural enterprise taking place on the underlying
land. See, e.g., Tenn. Att'y Gen. Op. 8-145 (Sept. 10, 2008) (opining that "the operation of a
commercial sawmill that obtains timber from off-site is not an agricultural use of land"). Such a
building or structure would not be exempt from county zoning regulation.

This statute is part of the code regulating county zoning. It provides:

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.

Tenn. Code Ann. § 13-7-114(a). This provision applies to counties only and has no application to municipalities. See
Tenn. Att'y Gen. Op. 10-12, at 2 n.1 (Jan. 28, 2010).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

MARY ELLEN KNACK
Senior Assistant Attorney General

Requested by:
The Honorable Frank Niceley
State Senator
425 5th Avenue North
712 Cordell Hull Building
Nashville, Tennessee 37243-0117