Oct 112012

Agricultural Zoning and the Right to Farm Act: Agritourism equals Agriculture in Tennessee

In a decision issued early this year by the Tennessee Court of Appeals, the court considered a dispute between an individual operating a farm as Maple Lane Farms and a neighboring property that claimed the farm-based activities were mostly commercial, not agricultural. According to the neighbor, the noise from the commercial activities interfered with her sleep and reading. The neighbor testified as follows:

“Q. How has the noise bothered you? What is it about the noise that has bothered you?

A. Well, the music was just very, very, very loud, you know, like I could almost feel the vibrations in my chest, you know, the whole house, and you couldn’t get away from it.

* * *

A. Yes, I could feel a thumping, thump, thump, thump, like it was thumping in my chest. It was extremely loud.”

Since 1985, Maple Lane Farms had been using their parcels to operate the farm as well as other things such as a pumpkin patch and corn maze in the fall. However, in 2000 they founded the Strawberry Jam Festival, a two day music festival held on their property, which lead to activities on the farm such as amplified musical performances, helicopter rides, and excessive ATV use. Shortly thereafter, the neighbors began to complain that the noise, bright lights, traffic and garbage was harming their health, comfort and property values. A neighbor sued the farm owner seeking to stop the activities on the property as a violation of zoning; specifically that these activities did not constitute a farming operation and thus the farm was not exempt from zoning requirements.

Under the Tennessee Right to Farm Act, Tenn. Code Ann. §§ 43-26-101 et seq., a farming operation is presumed neither to be a public or private nuisance. However, it is a rebuttable presumption that such farm operations are not nuisances unless a preponderance of evidence demonstrates that the operations do not conform to accepted agricultural practices. The Act also notes that a major point of it is to protect pre-existing farming activities from nuisance claims by newly arrived neighbors.

In a fairly broad approach to agricultural zoning and the Tennessee Right to Farm Act, the Court of Appeals held that the activities of Maple Lane Farms met the definition of “agritourism” and that these activities existed before the neighbor purchased her property. Shore v. Maple Lane Farms, LLC, No. E2011-00158-COA-R3-CV (Tenn. Ct. App. Apr. 11, 2012).

On August 16, 2012, the Tennessee Supreme Court granted permission for appeal. I would hazard a guess that the Supreme Court will take a more conservative approach here. Regardless, the opinion will prove to be an important one as this is an area of zoning and land use which needs some attention.

About J. David Wicker

J. David Wicker is a founding member of the Law Office of J. David Wicker, PLLC located in Nashville, Tennessee. David focuses his practice on corporate and commercial transactions, middle market and small business matters, commercial real estate, and real estate development.