Can my Virginia county block me from running a farm stay (short-term rental on my working farm) through the local zoning ordinance, or am I protected as an agritourism activity?

Subject

Whether short-term rental accommodations offered on a working Virginia farm qualify as "agritourism activity" under § 3.2-6400 and are therefore protected from local zoning under § 15.2-2288.6.

Plain-English summary

Cumberland County's attorney asked the AG a sharp question: a property owner in his county wanted to operate a short-term rental on her working farm, with guests invited to participate in the farm work during their stay. Was the county's zoning ordinance preempted by the agritourism statute, or could the county shut it down through standard zoning?

AG Jason Miyares concluded the activity can qualify as protected agritourism, but only if a stack of statutory conditions are met. The agritourism preemption in § 15.2-2288.6 prevents counties from regulating "agritourism activities as defined in § 3.2-6400" on agricultural land or in agricultural zoning districts, and it specifically prohibits counties from requiring a special exception or special use permit for those activities, unless the county can show a "substantial impact on the health, safety, or general welfare of the public."

Section 3.2-6400's definition of agritourism activity is intentionally broad: "any activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, wineries, ranching, horseback riding, historical, cultural, harvest-your-own activities, or natural activities and attractions." The statute uses "any" (which Virginia case law treats expansively) and "including" (which signals a non-exhaustive list). Read together, that language reaches well beyond U-pick farms and brewery tours. Offering overnight accommodations, paired with the opportunity to view or participate in rural activities at the farm, fits.

The opinion does not give every short-term rental on rural land a free pass. The AG was careful: the property must be in an agricultural district or genuinely engaged in an agricultural operation, the property must meet the statutory definitions of "farm or ranch" and "agricultural operation," guests must actually have access to rural activities, and the activity has to be for recreational, entertainment, or educational purposes. A short-term rental on a 5-acre rural lot with no farming and no meaningful access to rural activities is a regular short-term rental, governable by local zoning. The protection is for genuine farm stays.

Whether any specific operation crosses the line is a factual determination, which AG opinions traditionally do not make. But the legal framework is settled: real farm stays cannot be zoned out, and counties cannot require special use permits for them.

What this means for you

If you own a Virginia farm and want to host guests

Under the opinion, a short-term rental can qualify as protected agritourism, but only if every statutory condition is met: the property must be zoned as part of an agricultural district or classification, or engaged in an "agricultural operation" as defined in § 3.2-300; it must meet the definition of a "farm or ranch"; and the general public must be able to "view or enjoy rural activities" during the stay. When those conditions are satisfied, the opinion concludes the county cannot require a special use permit for the activity and cannot regulate it unless there is a "substantial impact on the health, safety, or general welfare of the public." The opinion is express that not every short-term rental on rural land qualifies.

If you sit on a county board of supervisors or planning commission

The opinion reads § 15.2-2288.6 as barring a locality from regulating a qualifying agritourism activity, and from requiring a special exception or special use permit for it on agricultural-district property, absent a substantial impact on public health, safety, or general welfare. Whether a given operation meets all the statutory conditions is a factual determination the opinion says is outside its scope.

If you are a real estate attorney advising agritourism operators

The opinion makes the protection conditional on the statutory elements in §§ 15.2-2288.6, 3.2-6400, and 3.2-300: the property must be classified or operated as agricultural, must meet the "farm or ranch" definition, and the activity must actually allow public access to rural activities. The opinion notes that whether a particular operation satisfies all of those elements is a question of fact it does not resolve.

If you are a neighbor of a proposed farm stay and you object

The opinion treats § 15.2-2288.6 as a real limit on local regulation of qualifying agritourism. It identifies the threshold questions a county would have to resolve: whether the property is genuinely an agricultural operation or farm, and whether the public can actually view or enjoy rural activities there. The opinion does not decide any particular factual dispute.

Common questions

Q: Does my farm need to be a certain size?
A: The statute does not set a size threshold. The test is whether the property meets the statutory definition of "farm or ranch" (used for production, cultivation, growing, harvesting, or processing of agricultural products) and is engaged in an "agricultural operation" (devoted to bona fide production of crops, animals, fowl, or other listed categories).

Q: What if guests just stay overnight without participating in any farm activity?
A: That is the harder case. The opinion's reasoning depends on guests being able to "view or enjoy rural activities" while on the property. Pure overnight lodging with no rural-activity component is closer to a generic short-term rental and may not qualify. The structured availability of rural activities (even if not all guests participate) appears to be the line.

Q: Can the county still impose health or safety rules on my farm stay?
A: Yes, when there is a "substantial impact on the health, safety, or general welfare of the public." This is a meaningful exception but it is intentionally narrow. The county would need real evidence of harm, not just policy preferences.

Q: Do I need a special use permit?
A: Not for the agritourism activity itself. Section 15.2-2288.6(B) bars special use permit requirements for protected activities on agricultural land. You may still need permits for new structures, well drilling, or other site changes that fall outside the agritourism activity definition.

Q: What if I'm in a residential zone, not agricultural?
A: Then you are outside the protection of § 15.2-2288.6(B), which is keyed to agricultural districts for the special use permit prohibition. You would still benefit from § 15.2-2288.6(A) if your use qualifies as an agricultural operation, but residential zoning generally implies the property is not classified as agricultural land.

Background and statutory framework

Virginia's agritourism statute (§ 15.2-2288.6) limits local zoning authority over certain activities at agricultural operations. As the opinion describes it, the statute bars a locality from regulating listed activities at an agricultural operation "unless there is a substantial impact on the health, safety, or general welfare of the public," and, for property zoned as an agricultural district or classification, also bars the locality from requiring a special exception, administrative permit, or special use permit for those activities. "Agritourism activities as defined in § 3.2-6400" are among the listed activities.

Section 3.2-6400 defines agritourism activity broadly. The opinion reads the phrase "any activity . . . that allows . . . the general public . . . to view or enjoy rural activities" to reach overnight accommodation when paired with the opportunity to view or enjoy rural activities, relying on the Supreme Court of Virginia's treatment of "any" as expansive and the use of "including" to signal a non-exhaustive list.

The AG's interpretive moves (the broad reading of "any," the expansive reading of "including") are well-grounded in Virginia statutory interpretation case law (County of Loudoun v. Parker; Dodson v. Dir. of Dep't of Corr.; Auer v. Commonwealth) and federal cases applying similar language (Ali v. Fed. Bureau of Prisons; Alexander v. Carrington Mortgage Services).

Citations and references

Statutes:

• Va. Code Ann. § 15.2-2288.6 (limits on local zoning of agricultural operations)
• Va. Code Ann. § 3.2-6400 (agritourism activity definition)
• Va. Code Ann. § 3.2-300 (agricultural operation definition)

Cases:

• Rowland v. Town Council of Warrenton, 298 Va. 703 (2020) (state statute prevails over conflicting local ordinance)
• County of Loudoun v. Parker, 205 Va. 357 (1964) (broad reading of "any")
• Auer v. Commonwealth, 46 Va. App. 637 (2005) (non-exhaustive list signaled by "include")

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/22-036-Beasley-issued.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

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

January 12, 2023

Kemper M. Beasley III, Esquire
Attorney for Cumberland County
Post Office Box 36
Farmville, Virginia 23901

Dear Mr. Beasley:

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 ask whether the offering of short-term rental accommodations at an operating farm, where the short-term rental occupants are offered the opportunity to participate in farming activities during their stay at the property, constitutes "agritourism activity" under Virginia Code § 15.2-2288.6, such that the locality is prohibited from regulating such use of the property through its zoning ordinances.

Applicable Law and Discussion

The General Assembly has delegated to localities the authority to control land use within their boundaries through zoning. "This delegation of authority . . . is a delegation of the Commonwealth's police power to legislate" in the area of land use. Although localities have broad discretion in the enactment of zoning ordinances, their zoning powers are limited. Adopted "ordinances must be consistent with the laws of the Commonwealth[,]" and "[w]hen a statute enacted by the General Assembly conflicts with an ordinance enacted by a local governing body, the statute must prevail."

Virginia Code § 15.2-2288.6 expressly limits local zoning authority with respect to certain aspects of agricultural operations. It provides, in relevant part, that "[n]o locality shall regulate the carrying out of any of the following activities at an agricultural operation . . . unless there is a substantial impact on the health, safety, or general welfare of the public . . . ." For property zoned as an agricultural district or classification, § 15.2-2288.6 also precludes local governments from "requir[ing] a special exception, [local] administrative permit . . . or special use permit for any [listed] activity . . . ." The statute includes "agritourism activities as defined in § 3.2-6400" among the listed activities.

Section 3.2-6400 defines "agritourism activity" as

[A]ny activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, wineries, ranching, horseback riding, historical, cultural, harvest-your-own activities, or natural activities and attractions.

You ask whether offering short-term rental accommodations falls within this definition.

"When construing a statute, our primary objective is to 'ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Accordingly, in resolving your question, "[w]e look to the plain meaning of the statutory language, and presume that the legislature chose, with care, the words it used when it enacted the relevant statute." Courts "disfavor a construction of statutes that renders any part of the statute useless or superfluous[,]" and "when the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional."

As set forth above, the statutory definition of "agritourism activity" includes "any activity . . . that allows . . . the general public . . . to view or enjoy rural activities . . . ." As previously noted by this Office, "[t]he Supreme Court of Virginia has held that the term '[a]ny' is an indefinite word and includes 'all' unless restricted." Accordingly, the statutory language the General Assembly employed here is very broad and can encompass a wide array of potential activities, including overnight accommodation. Indeed, "[a]s the [U.S.] Supreme Court has indicated, '[r]ead naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind.'"

The definition of "agritourism activity" contained in § 3.2-6400 is not limited to the activities expressly named in the statute. First, the use of the word "including" suggests that the enumerated activities are merely demonstrative and not exhaustive. Second, the list simply specifies types of rural activities that may be sought to be enjoyed at a farm or ranch while the definition of "agritourism activity," as a whole, more broadly covers "any activity" that "allows" people to experience such activities as well as the rural activities themselves. The only restrictions contained within definition are that the activity must occur "on a farm or ranch," must "allow[] . . . the general public . . . to view or enjoy rural activities[,]" and ultimately must be "for recreational, entertainment, or educational purposes." Offering overnight accommodations, by permitting the public to extend their stay at an agricultural operation, is an activity that thus would "allow[] members of the general public . . . to view or enjoy rural activities" offered by the establishment.

I therefore conclude, based on the plain language of the applicable statutes, including § 3.2-6400, that offering short-term rental accommodations, in defined circumstances, falls within the protections against local regulation afforded certain activities under § 15.2-2288.6. Nevertheless, I caution that whether a particular instance of a property owner offering short-term rental accommodations is exempt from local zoning regulation depends on whether all attendant statutory conditions are met. For an activity to be exempt from local regulation under § 15.2-2288.6, the associated property must be zoned as a part of an agricultural district or classification or engaged in an "agricultural operation" as defined in § 3.2-300. The activity must occur on property meeting the definition of a "farm or ranch," which in turn requires the land to be used in the creation of "agricultural products," as further defined by statute. "Rural activities" must be available for the general public to experience. Section 15.2-2288.6 thus will not apply to short-term rental accommodations unless all of the required elements are satisfied.

Conclusion

Accordingly, it is my opinion that, provided all attendant statutory conditions are met, the offering of short-term rental accommodations, in conjunction with the opportunity to view or participate in rural activities during the stay, falls within the definition of "agritourism activity" for purposes of Virginia Code § 15.2-2288.6.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General