October 2003

Planning

Copyright by American Planning Association

No Permit Needed for Farmworker Housing

By James Lawlor

Under Arizona's "right to farm" law, construction of housing for farm workers on farm property is subject to no more stringent building regulation than building a barn, the state's intermediate appellate court held in June. The court said a law exempting land used for agricultural purposes from planning and zoning regulations exempted the farm owner from complying with a county's building permit process. The case is Braden Trust v. County of Yuma.

Braden Trust owns Texas Hill Farms, which stretches over 7,500 acres in Yuma County (pop. 160,000), not far from the California border. The trust proposed to renovate farm dwellings and construct additional worker housing. There were to be two new steel buildings.

The county Department of Development Services told Braden that any construction or renovation of residential structures was subject to the building permit process and the requirements of the county building code.

The trust sued, seeking an order directing the county to exempt it from complying with the building permit process. The trial court ruled that the housing was incidental to farming and agriculture, therefore not subject to the county's building and zoning codes. The county appealed.

The appeals court noted that relevant statutory language provides that no county zoning ordinance may regulate the use of land for agricultural purposes if the tract is five acres or more. Another provision says that county building codes do not apply to construction incidental to agriculture.

County argues common sense

The county argued that a common-sense construction of that language did not include multifamily residential structures of the type Braden proposed. It read the law as exempting only structures housing such items as agricultural products, farm implements, and tools, not people. Farm-worker housing has a function independent of agricultural purposes, the county argued, and was not intended to serve agricultural purposes, as is a barn, for example.

Braden contended that the housing was incidental to agriculture because occupants would be working full-time on the farm and on-site housing relieved workers of commuting 30 miles or more to work from the nearest housing off-site.

Although "agricultural purposes" is not defined in the statute, other laws illustrate its broad scope, the court said. For example, residential dwellings occupied by agricultural employees are valued for tax purposes as agricultural land. And in the context of agricultural employment relations, "agriculture" is defined as all services performed on a farm, including recruiting, housing, and feeding of agricultural employees.

Construction incidental to farming or agriculture does not necessarily involve the primary functions of the farm, the court continued. It may concern functions that are tangentially related to its principal activity. On-site housing benefits both the employer and employees in terms of safety and productivity. Because the statutory language is broad enough to include farm-worker housing and does not specifically preclude residential dwellings from the exemption from zoning and building codes, the housing proposed by Braden fell within the exemption, the court concluded.

The court noted its conclusion was consistent with decisions from several other jurisdictions, including New York, Illinois, and Kansas.

The court said it did not share the county's concern that the statutory exemption could be abused to the point where any structure can be exempt so long as it serves a farmer or farm workers, describing the county's concern as merely speculative. Given the broad language of the statute, it was clear the legislature intended to favor agriculture by limiting governmental control over farm property. The court noted it had no power to change legislative enactments. If residential dwellings are to be excluded from the statutory exemption, the change must come from the legislature.