“County zoning regulations may not affect property used for bona fide farm purposes.” That’s what North Carolina state law dictates about land use zoning regulations of agricultural operations in the county or the municipal extraterritorial jurisdiction (G.S. 160D-903). But that is not a free pass for anything and everything to occur on a farm. Zoning still applies to non-farm activities even if that activity occurs on a farm. The issues of housing on a farm raise specific questions relating to the bona fide farm exemption. Is housing a “bona fide farm purpose”? What about rental housing? What about migrant farmworker housing?

As with other questions about the bona fide farm exemption, the answers depend on the details of the statutes and the facts on the ground. This blog outlines some considerations for the bona fide farm exemption and housing.

Basics of the Bona Fide Farm Exemption

The basic idea of the farm exemption is simple: The county government ought not be telling the farmer when to plow her field, where to build her barn, or how many cattle to graze in the pasture. This was part of the original state law authorizing land use zoning in North Carolina counties. Today the exemption applies to county zoning as well as zoning in municipal extraterritorial jurisdiction. The details are explained in this blog from David Owens: What Does the Farm Exemption from Zoning Regulation Include?

As outlined by Owens, there are two key questions for a determination about a bona fide farm activity: Is the property a farm? And is the activity for a farm purpose? For the first question—is the property a farm?—state law sets forth specific documents that can be produced to provide sufficient evidence that the property is a farm:

1. A farm sales tax exemption certificate issued by the Department of Revenue.
2. A copy of the property tax listing showing that the property is eligible for participation in the present-use value program pursuant to G.S. 105-277.3.
3. A copy of the farm owner’s or operator’s Schedule F from the owner’s or operator’s most recent federal income tax return.
4. A forest management plan.

The second question can be tougher: Is the activity for a farm purpose? Some activities are plainly agriculture, some things are plainly not, and many things fall in between. State law incorporates the broad definition of agriculture from G.S. 106-581.1. This includes production and harvesting of crops, planting and production of timber, raising and management of livestock, and aquaculture. The definition also includes construction and maintenance of land and buildings incident to the farming operation, processing and packing items produced on the farm, marketing and selling agricultural products, certain grain warehouse operations, and agritourism.

Additionally, G.S. 160D-903 offers a broad definition of agritourism: “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, ranching, historic, cultural, harvest-your-own activities, hunting, fishing, equestrian activities, or natural activities and attractions.” These broad definitions mean that questions about the applicability of the bona fide farm exemption may arise in an array of scenarios: wedding venues, shooting ranges, fall festivals, and more.

For this blog, I am focused specifically on housing.

Housing on the Farm

Even questions about housing on the farm may arise in several circumstances: housing for the owner or operator of the farm, housing for migrant farmworkers, housing unrelated to the farm operation, and more.

Housing for the Farm Owner or Operator

G.S. 160D-903(a) includes a specific provision related to housing for the owner or operator of the farm. “Activities incident to the farm include existing or new residences constructed to the applicable residential building code situated on the farm occupied by the owner, lessee, or operator of the farm and other buildings or structures sheltering or supporting the farm use and operation.” This provision includes key criteria for the housing to be “incident to the farm” and thus exempt from zoning. To be exempt, the housing must be:

• A residence constructed to the applicable residential building code;
• Situated on the farm; AND
• Occupied by the owner, lessee, or operator of the farm

If a residence meets these criteria then it is exempt from zoning, but it is not exempt from everything; the building code still applies, the land subdivision ordinance may apply, and other development regulations may apply. Notably a change in the occupancy may mean that the home is no longer exempt from zoning. As discussed below, housing unrelated to the farm does not get special exemption from zoning. At the time of construction and building permits, it would be prudent for the local government to communicate to the owner the risk of future enforcement if the home is occupied by someone other than the owner, lessee, or operator of the farm.

Migrant Housing

Housing for migrant farmworkers is commonly provided in close proximity to the farm. Is migrant housing subject to local zoning regulations? It depends. As noted above, the bona fide farm exemption applies to “other buildings or structures sheltering or supporting the farm use and operation.” One may reasonably argue that migrant housing located on a farm is indeed sheltering and supporting the farm operation. But, as with other bona fide farm analysis, the details matter.

Is the migrant housing on a farm? That’s the first question for any bona fide farm question. If the housing is not located on a farm, we need not continue the inquiry. The bona fide farm exemption does not apply, and zoning does apply. But, if the migrant housing is located on a farm, then we move to the next inquiry.

Is the migrant housing for a farm purpose? If the migrant housing is indeed on a farm property, then we must consider if the housing is incident to the farm operation. Commonly the answer will be yes, but it is not necessarily so. The statutory definition of “migrant housing” is quite broad: “any facility, structure, real property, or other unit that is established, operated, or used as living quarters for migrants” (G.S. 95-233(6)). The housing does not have to be connected to the particular farm or property. As such, there could be migrant housing on a bona fide farm property housing migrant workers working for other farms. Consider a 40-acre parcel with timber (so it qualifies as a bona fide farm with silviculture). Suppose the owner clears a couple of acres and locates 10 manufactured homes on the site to house migrant farmworkers working elsewhere in the county. There is migrant housing on a bona fide farm. Yet, the housing is not incident to that particular bona fide farm operation. That housing would not be exempt from local zoning.

There is a broader question to ask about the housing: Is the housing migrant housing, or is it housing that is available to the general public and happens to be occupied by migrant farmworkers? A standard motel, for example, is not exempt from zoning because a few rooms are rented to migrant farm workers for a few weeks. A manufactured home park does not escape development regulations because one home in the park is converted to migrant housing. This distinction between migrant housing and generally available housing is reflected in the state regulations for migrant housing. G.S. 95-224 states that migrant housing regulations do not apply to an individual or business who “regularly provides housing on a commercial basis to the general public; and who provides housing to migrants of the same character and on the same or comparable terms and conditions as those provided to the general public.”

If the migrant housing is located on a farm and incidental to the operations of that farm, there is a strong argument that the migrant housing is exempt from zoning through the bona fide farm exemption. But, if the migrant housing is not on a farm, is unrelated to the farm where it is located, or is just conventional housing that happens to be occupied by migrants, it is unlikely that the housing is exempt from zoning.

Regardless of whether local zoning applies, migrant housing is subject to state regulations and permitting under the North Carolina Department of Labor.  The requirements include, among other things, rules for clean water and sanitation, minimum standards for habitability, pre-occupancy inspections, and enforcement, as outlined in Article 19 of Chapter 95 of the NC General Statutes and Chapter 16 of Title 13 in the NC Administrative Code.  Certification documentation may be useful evidence for determining the nature of the housing (as migrant housing), the location of the housing, and the farm operator providing the housing.

On the topic of migrant housing, I must highlight the possibility of labor trafficking. As stated by colleagues Margaret F. Henderson and Nancy Hagan in their bulletin on Labor Trafficking—What Local Governments Need to Know, “While most agricultural employers are ethical people who do not abuse their workers, the circumstances of migrant farm work involve vulnerabilities that traffickers can exploit at any point in the labor chain.” To learn more about labor trafficking and the role of local governments, check out that bulletin and this website.

Housing Unrelated to the Farm

The bona fide farm exemption “does not limit zoning regulation with respect to the use of farm property for nonfarm purposes” (G.S. 160D-903). The mere fact that a land use or activity is on a farm does not mean it is exempt from zoning. If a farmer wanted to use a portion of the cornfield to open a gas station, the gas station would still be subject to land use zoning regulations, even if the cornfield is not subject to zoning. Similarly, if a farmer wanted to use a portion of the cornfield to build a house to rent or sell (unrelated to the farm), the development of the house would still be subject to land use zoning regulations.

This is where enforcement can get tricky. Suppose a farm owner built a house for the farm operator. As discussed above, that is exempt from zoning under G.S. 160D-903(a). Now, suppose the operator leaves for a new job and the farm owner rents out the house to a high school teacher and his family. The house is no longer occupied by the owner, lessee, or operator of the farm. Legally it is now subject to zoning, may amount to a violation of development standards, and may be subject to enforcement action.

Limits on Residential Zoning for Large-Lots

For lots over 10 acres in size, county zoning may not prohibit a single-family home. Pursuant to G.S. 160D-903(b), county zoning may not prohibit a single-family residence (regardless of whether or not it is related to a farm) if:

• The lot is greater than 10 acres in size;
• The home is building to the state building code; and
• It is in a residential or agricultural zoning district (not commercial or industrial) where more than fifty percent of the land is used for agriculture or silvicultural.

Additionally, a zoning ordinance may not require frontage or public water for single family development on a large lot. “A zoning regulation shall not require that a lot greater than 10 acres in size have frontage on a public road or county-approved private road or be served by public water or sewer lines in order to be developed for single-family residential purposes.”

Land Subdivision

The bona fide farm exemption applies to zoning regulations. As such, the farm exemption does not apply to land subdivision regulations. But, there are separate exemptions from the subdivision regulations, including for lots greater than 10 acres and for recombination plats. Additionally, minor subdivisions and family subdivisions commonly have reduced regulations and procedures for approval. So, even if a division of property is not exempt under the bona fide farm exemption, there may be other ways in which the division is permitted.

Conclusion

The bona fide farm exemption protects agricultural operations from land use zoning regulations in North Carolina county’s and municipal extraterritorial jurisdiction. But, the bona fide farm exemption is not a free pass for any activity or development to occur on property where agriculture occurs. The bona fide farm exemption includes specific provisions for housing on farm property, but the core questions for the applicability of zoning regulations remain the same: First, is the property farm property? And second, is the activity for a farm purpose?