By: Eric Christianson & Gary Taylor
This session, the Iowa Legislature passed two bills concerning county zoning. HF 2512 and HF 2477, together represent significant changes to county zoning. The intent behind both bills is to reduce counties’ ability to regulate agricultural activities. The specifics of the bills raise many questions for counties as they implement their provisions.
HF 2512 contains three major changes:
- The agricultural exemption process
- Membership of the Board of Adjustment and Planning Commission
- Amendments to the comprehensive plan.
Agricultural Exemption Process
Few issues are as vexing for county zoning officials as interpreting the agricultural exemption to county zoning. Iowa’s County Zoning Enabling Act (Iowa Code, Chapter 335) explicitly exempts from county zoning regulations all:
land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.” Iowa Code 335.2
The intent is to exempt “agricultural activities” from zoning, but interpreting that exemption is complicated. Iowa Code does not give clear criteria and Iowa courts have provided little guidance. In practice there has been a wide variety in how counties apply the exemption. Following a 2013 Iowa Supreme Court decision Lang v. Linn County, many counties have adopted a submission process to aid zoning administrators in determining whether a particular structure is “primarily adapted […] for agricultural purposes.”
HF 2512 adds the following two paragraphs to Iowa Code 335.2:
A county shall not require an application, an approval, or the payment of a fee in order for an ordinance to be deemed inapplicable to land, farm barns, farm outbuildings, or other buildings or structures that are primarily adapted for use for agricultural purposes under this section.
Land, farm houses, farm barns, farm outbuildings, or other buildings or structures may qualify under this section independently or in combination with other agricultural uses. Land enrolled in a soil or water conservation program shall be considered land primarily adapted for use for agricultural purposes under this section.HF 2512
These additions to the ag exemption statute create several new ambiguities. In many counties the application process has been a voluntary step that landowners may take to have zoning officials review building plans before construction rather than receive a notice of violation for a non-exempt property after it is constructed. This law does not seem to preclude the continued use of these voluntary application processes provided they are not a requirement. A voluntary review process, at least, would lessen the instances of post-construction enforcement problems, when landowners have built buildings that clearly do not meet the ag exemption requirements without first consulting with county zoning officials.
An ambiguity that remains is that a similar passage from another Code Chapter 331.304(3)(b) exempts from county building codes, “farm houses or other farm buildings which are primarily adapted for use for agricultural purposes, while so used or under construction for that use.” That passage is left unchanged. Most counties use the same application process to determine exemption to both zoning and building codes. It seems reasonable to conclude that an application process to determine exemptions from county building codes may continue on its own.
Finally, 335.2 has, and continues to exempt “land, farm houses, farm barns, farm outbuildings or other buildings or structures” from county zoning. However, the term “farm houses” is not included in the new language exempting “land, farm barns, farm outbuildings, or other buildings or structures” from an application process. A house was at the heart of the Lang v. Linn County case, and the primary trigger for requiring an exemption application in many counties has been the construction of a dwelling. Standard legal statutory interpretation suggests that the exclusion of a term from a list must be intentional, and therefore counties could continue to require applications for exemptions for houses. Of course, please consult your county attorney before relying on this interpretation!
The second paragraph expands the definition of “agricultural purposes” to include land enrolled in a soil or water conservation program. Many, but not all, counties had considered this an “agricultural purpose” previously. The commonly used definition of agriculture for determining exception to county zoning and building codes has been “the art and science of cultivating the ground, including harvesting of crops and rearing and management of livestock” (Thompson v. Hancock County, 539 N.W.2d 181, 1995). This change clearly expands that definition to include conservation programs. Interestingly, this change will potentially allow the agricultural exemption to apply to properties where no active agriculture is taking place at all provided the parcel is enrolled in a soil or water conservation program.
Membership Requirements for the Planning and Zoning Commission and Board of Adjustment
Effective immediately, all county Planning and Zoning Commissioners and Zoning Board of Adjustment members must reside “within the area regulated by the county zoning ordinance.” Previously Chapter 335 had required that a majority of the members of both boards “reside within the county but outside the corporate limits of any city.” This change is effective immediately, creating vacancies on boards that have traditionally been difficult to fill. The change of language to refer to, “the area regulated” will present a particular challenge to counties that are only partially zoned.
Update: An edit to 335 from the budget bill (HF 2643) that passed both houses early Sunday morning (June 14, 2020) appears to partially reverse course with regard to the change in board and commission membership. No board members may live within city limits, but HF 2643 changes their residency requirement from “the area regulated by the county zoning ordinance” back to within “the county, but outside the corporate limits of any city.” This change effects both the Board of Adjustment and Planning Commission. This change is only significant for the small number of partially zoned counties. As of the writing of this post the Governor has not yet signed the budget bill and therefore could use line item veto on this provision, although it seems unlikely.
Comprehensive Plan Amendments
HF 2512 also expands the role of the Planning and Zoning Commission in reviewing amendments to the comprehensive plan. The Planning and Zoning Commission must make a recommendation on amendments before the Board of Supervisors may take any action to amend a plan. It also requires that the Board of Supervisors hold a public hearing before amending the comprehensive plan. Previously 335.5(4)(c) had stated, “Following its adoption, a comprehensive plan may be amended by the board of supervisors at any time.” That section is removed.
The other bill passed this session, HF 2477 creates a new category of activity “agricultural experiences.”
1. For purposes of this section, “agricultural experience” includes any agriculture-related activity, as a secondary use in conjunction with agricultural production, on a farm which activity is open to the public with the intended purpose of promoting or educating the public about agriculture, agricultural practices, agricultural activities, or agricultural products.
2. To assist in the promotion of agricultural experiences, a county shall not require a conditional use permit, special use permit, special exception, or variance for agricultural experiences on property of which the primary use is agricultural production.HF 2477
The way this bill is written makes it difficult to understand exactly how counties may regulate “agricultural experiences” and what specific activities are included under that definition.
First, what specific activities will have an “intended purpose of promoting or educating the public about agriculture…”? Many common activities fall in a gray area. Agricultural field days and harvest festivals generally are carried on with the intent to educate the public about agriculture. Retail shops where local produce is sold could be considered to be “promoting…agricultural products,” but what if it is selling products neither grown nor processed on the farm or even in Iowa? Does that matter? If it does not and such sales meet the definition, then where is the line drawn for restaurants that “promote…agricultural products” (food) brought in from anywhere in the world? What “promoting or educating” takes place at the typical corn maze or wedding barn? Without further clarification it may take years and multiple court cases to sort out these nuances.
Importantly, HF 2477 does not clearly make “agricultural experiences” exempt from county zoning. That would have been simple to do. HF 2512 discussed above added, “land enrolled in a soil or water conservation program” to 335.2, which is the section of code dealing with the agricultural exemption. Instead HF 2477 creates a new code section and only explicitly prevents counties from permitting these activities through the special exception process.
One possible interpretation is that despite the messy drafting, this bill does exempt these activities or at least forces counties to allow them as a permitted use on “property of which the primary use is agricultural production.” This seems like the likely intent of the bill and a court may take that into account in its interpretation. Another perspective is that the bill only does what it states explicitly. It prevents counties from using the special exception process to permit “agricultural activities.” In that case it may not prevent counties from regulating these activities in other ways.
We are left with many questions: Are these activities now exempt from county zoning or might a county regulate them in using zoning tools apart from, “conditional use permit, special use permit, special exception, or variance?” Could a county allow “agricultural experiences” as a permitted use, but subject them to regulations such as maximum numbers of people or limited operating hours? Could certain activities still be banned outright? Could regulations be different in different zoning district? At this point we do not have any clear answers.
The impact of all of these changes will take some time to fully understand. The requirements for membership of boards and the comprehensive plan amendment process are straightforward. However, the changes to the agricultural exemption process and the creation of the category of “agricultural experiences” raise many questions. It is likely that we will see counties take a number of different approaches until the courts or the legislature provide greater clarity.