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 at an operating farm can qualify as agritourism under Virginia Code § 15.2-2288.6 when guests may participate in farming activities.

Plain-English summary

Cumberland County's attorney asked whether short-term accommodations on an operating farm, coupled with an opportunity for guests to participate in farming activities, were protected agritourism. The AG concluded that they can be, if all statutory conditions are met. He did not decide whether a particular property qualifies.

Section 3.2-6400 defines agritourism activity broadly as an activity on a farm or ranch that allows the public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities. The AG read "any activity" and "including" as allowing overnight accommodations to qualify when they give guests an opportunity to experience rural activities.

The protection under § 15.2-2288.6 depends on the property being in an agricultural district or classification or engaged in an agricultural operation under § 3.2-300; the activity occurring on a farm or ranch used to create agricultural products; and rural activities being available to the public. The statute permits local regulation of a covered activity if it has a substantial impact on public health, safety, or general welfare. Its separate bar on requiring a special exception, local administrative permit, or special use permit for a listed activity applies to property zoned as an agricultural district or classification.

The opinion cautions that all statutory conditions must be met and does not declare every farm stay exempt from zoning.

What this means for you

If you operate a farm stay

The opinion supports possible agritourism treatment when guests can view or enjoy rural activities and all property and activity conditions are met. It does not determine that your rental qualifies.

If you administer county zoning

The opinion describes a qualified limit on local regulation and a permit bar tied specifically to agricultural-district or agricultural-classification property. It preserves the statutory exception for substantial public health, safety, or welfare impacts.

Common questions

Does any rural rental qualify?
No. The AG requires a qualifying farm or ranch, the necessary agricultural land or operation status, and an opportunity for the public to view or enjoy rural activities for the purposes named in the statute.

Can the county regulate a qualifying activity?
The statute allows regulation if there is a substantial impact on the health, safety, or general welfare of the public. The opinion does not apply that exception to a specific rental.

Does the special use permit bar apply everywhere?
No. The opinion quotes the permit bar for property zoned as an agricultural district or classification. It does not apply that specific bar to every property that might meet another part of the agritourism test.

Background and statutory framework

Virginia Code § 15.2-2288.6 limits local regulation of specified activities at agricultural operations, including agritourism under § 3.2-6400. The AG interpreted the broad wording of the agritourism definition to include overnight accommodations in defined circumstances. He emphasized that the protection requires the full set of statutory conditions and remains subject to the substantial-impact exception.

Citations and references

• Va. Code § 15.2-2288.6 (limits on local regulation and agricultural-district permit requirement)
• Va. Code § 3.2-6400 (agritourism definition)
• Va. Code § 3.2-300 (agricultural operation definition)

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