Does Virginia's agritourism statute definition of 'agricultural products' control zoning under § 15.2-2288?

Plain-English summary

In January 2012, Senator Thomas Norment asked the AG a fine-grained statutory construction question: did the definition of "agricultural products" in § 3.2-6400 (the agritourism-liability statute) carry over to § 15.2-2288, which prevents localities from requiring special exceptions or special use permits for "production or harvesting of agricultural or silviculture products" in agricultural zoning districts? The AG said no.

Virginia's Code uses the phrase "agricultural products" in several places, and the General Assembly defined it differently in each, expressly confining each definition to its own chapter. The AG pointed out that § 3.2-6400 says its definitions apply only "[a]s used in this chapter," so § 3.2-6400's definition reaches only Chapter 64 (agritourism activity liability) of Title 3.2. The AG noted that "agricultural product" is defined differently again in § 3.2-4300 (grades, marks and brands, in Article 1 of Chapter 43 of Title 3.2), yet again in the Agricultural Cooperative Association Act in Title 13.1, and yet again in Title 15.2 for the Agricultural and Forestal Districts Act.

§ 15.2-2288 itself does not define "agricultural products." Under the rule that words without statutory definitions take their plain and ordinary meaning in context, the AG concluded the phrase in § 15.2-2288 must be construed by reference to ordinary usage, not by importing § 3.2-6400's definition from another chapter.

The AG did soften the conclusion slightly: while the other definitions do not control § 15.2-2288, they "may be looked to as interpretative guides for determining the plain and ordinary meaning of the phrase." So someone interpreting § 15.2-2288 can look at how the General Assembly used "agricultural products" elsewhere, but cannot mechanically plug in § 3.2-6400's definition.

Currency note

This opinion was issued in 2012. 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.

Background and statutory framework

Virginia § 15.2-2288 protects "production agriculture or silviculture activity" in agricultural zones from being subject to a special exception or special use permit requirement. That protection is expressed in terms of "the bona fide production or harvesting of agricultural or silviculture products." Whether something counts as an "agricultural product" therefore matters for what local zoning can and cannot reach.

The AG noted that the General Assembly has set forth several definitions of "agricultural products" in different Code locations, each confined to its own subject matter:

• § 3.2-6400, for agritourism activity liability (Chapter 64 of Title 3.2). Its definitions apply only "[a]s used in this chapter."
• § 3.2-4300, for grades, marks and brands (Article 1 of Chapter 43 of Title 3.2), defined differently than in § 3.2-6400.
• The Agricultural Cooperative Association Act in Title 13.1, yet another definition.
• The Agricultural and Forestal Districts Act in Title 15.2, yet another definition.

The opinion did not reproduce the content of those definitions; it relied on the fact that each is cabined to its own chapter. § 15.2-2288 has no definition of its own.

Common questions

Q: When § 15.2-2288 talks about 'agricultural products,' which definition controls?
A: According to this opinion, none of the existing chapter-specific definitions. The phrase takes its plain and ordinary meaning. The other definitions can be considered as aids but not as binding.

Q: Does aquaculture fall within 'agricultural products' under § 15.2-2288?
A: The opinion did not answer that. It held only that § 3.2-6400's definition does not control § 15.2-2288; it did not work through which products § 15.2-2288 covers. A separate AG opinion (11-127, issued the same year) concluded aquaculture is not an "agricultural operation" under the Right to Farm Act, but that opinion turned on different statutory language.

Q: Why are these definitions all different across the Code?
A: Because each is purpose-built. The agritourism liability statute and the agricultural districts statute serve different policy goals, so the General Assembly listed different products. The AG treated the variations as deliberate.

Q: What canons of construction did the AG rely on?
A: The plain-meaning canon (when statutory language is clear and unambiguous, the plain meaning controls unless it leads to a manifest absurdity), the "[a]s used in this chapter" limiter the General Assembly attached to each chapter's definitions, and the principle that definitions found elsewhere in the Code "may be looked to as interpretative guides" even when they do not control.

Q: Could a locality lose if it tried to require a special use permit for, say, a bee or honey operation?
A: The opinion did not reach that. It said only that § 3.2-6400's definition does not control. The actual question of whether a particular agricultural product is covered by § 15.2-2288 would depend on plain meaning, context, and possibly guidance from other chapter definitions.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/11-129_Norment.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

January 6, 2012

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Thomas K. Norment, Jr.
Member, Senate of Virginia
Post Office Box 6205
Williamsburg, Virginia 23188

Dear Senator Norment:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the phrase "agricultural products", as stated in § 15.2-2288, is defined by the definitions set forth in § 3.2-6400?

Response

It is my opinion that the phrase "agricultural products", as stated in § 15.2-2288, is not defined by the definitions set forth in § 3.2-6400.

Applicable Law and Discussion

Section 15.2-2288 provides that a local zoning ordinance shall not require a special exception or special use permit for any production agriculture or silviculture activity in an area zoned as an agricultural district or classification. The section further explains that this activity is "the bona fide production or harvesting of agricultural or silviculture products." The Code does not provide a definition for "agricultural products" as the phrase is used in § 15.2-2288 is not defined by statute. In the absence of a statutory definition, the plain and ordinary meaning of a term is controlling, given the context in which it is used.

The General Assembly has set forth elsewhere in the Code several statutory definitions of the phrase "agricultural products" but has confined the applicability of each such definition to the specific subject matter of the chapter or article involved. For example, § 3.2-6400 expressly provides that the definitions set forth therein are "[a]s used in this chapter, unless the context requires a different meaning." When statutory language is clear and unambiguous, the plain meaning of the language used should determine the legislative intent, unless such a literal construction would lead to a manifest absurdity. Therefore, the definition of "agricultural products" found in § 3.2-6400 only applies to the use of that phrase in Chapter 64, relating to agritourism activity liability, of Title 3.2.

For comparison, "agricultural product" is defined differently in § 3.2-4300, for use of that phrase in Article 1 of Chapter 43, relating to grades, marks and brands, of Title 3.2, than it is defined in § 3.2-6400. Yet another definition of "agricultural products" is found in the Agricultural Cooperative Association Act in Title 13.1. Likewise, yet another definition for the term "agricultural products" is set forth in Title 15.2 for use in the Agricultural and Forestal Districts Act. Given the various definitions of "agricultural products" and the express limitations on their application established in the Code, I conclude that the General Assembly did not intend the definition of "agricultural products" provided by § 3.2-6400 to serve as the definition of the phrase as used in § 15.2-2288.

The statutory definitions of "agricultural products" found elsewhere in the Code, while not defining what the phrase means in § 15.2-2288, may be looked to as interpretative guides for determining the plain and ordinary meaning of the phrase as it is used in § 15.2-2288.

Conclusion

Accordingly, it is my opinion that the phrase "agricultural products", as stated in § 15.2-2288, is not defined by the definitions set forth in § 3.2-6400.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General