The spooky season is here! For many of us, that means an annual trip to a local farm to enjoy the apple cider, hayrides, and corn mazes. For some farmers, this is the time to capitalize on the season by inviting the public to their farms. Other farmers may be considering how they can join in on the fall festivities. Surprisingly, there are many considerations a farmer needs to account for before opening their land to the public both to avoid things getting too legally spooky!
Two years ago, we covered agritourism liabilty from the personal injury standpoint in this blog. The blog introduced our readers to the idea of agritourism/tainment, which is farm-based entertainment that links agriculture production and processing with tourism to profit. We also gave farmers tips on how to keep their farm safe for the public and how to limit their potential liabilities. Make sure to check it out!
But, this month, we are exploring even more legal considerations related to agritourism. We are going in depth on the "property" considerations farmers must consider for their events, including local zoning, building code requirements, and the Americans with Disabilities Act (ADA). So let's dive in...
Are you legally permitted to host an agritainment event?
It’s an intimidating question, but many farms may not be permitted to invite the public onto their land outside of direct agricultural sales. While the PA Clean and Green program, (see our blog on the topic) allows for agritainment activities, it is a tax abatement program and still subject to local zoning laws. However, the Right to Farm Act (see our blog on the topic) and ACRE, state statutes protecting an array of farm practices, have not had any clear cases protecting agritainment activities.
Thus, how your property is zoned by your municipality may limit your ag freedom. Zoning is essentially how cities, towns, and villages regulate how property owners can use their land. A local zoning authority typically creates a map that divides geological areas into “zones.” The map is usually accompanied by a code that details the permitted uses and accessory uses for each zone. Thus, farmers need to do a little research and determine what zone they are in and if that zone will allow for agritainment as a primary or accessory use. You can find your zone online, at your local library, or by reaching out to your local zoning or muncipality office.
This article highlights how different zoning codes on the other side of the state have hindered some farmers.
Typically, zoning codes do not specifically mention agrotourism, or the laws are unclear if the farmer can invite the public onto the land. If that is the case, you may want to tread lightly. Unforunately, agritourism is fairly new and it's status is in a zoning grey area depending on your municipality.
Also don't hesistate to reach out to a lawyer to help you better undrestand your zoning and rights.
An important note about neighbors
Most zoning issues stem from neighbor disputes or a neighbor calling the municipality on your activities. If you start to host events, there will be an increase in traffic and noise. Therefore, they could bring a legal action against you or call the municipality on you. There are also more ways neighbors can be a hindrance to your agritainment. Therefore, it's important to make nice with the people who live around you. It could take some home baked scones, but we promise you, it’s worth it.
Where should you host your agritainment event?
As we talked about in the last agrotourism blog, where you host events on your property matters. Whenever anyone invites the public onto their land, they must ensure that their property is safe. Thus, appropriate signage on where people can and cannot go is crucial.
But, another important consideration is the building code. The building code has specific requirements for buildings and is usually enforced by a local agency. The code dictates an array of safety requirements from the number of exits to requiring a sprinkler system. Typically farmers will open up their barn or other structures for these agritainment events. But, these structures were sometimes constructed under an exemption to the building code. This is because the Uniform Construction Code, the building code adopted by Pennsylvania, has a building permit exemption for agricultural buildings. However, the exemption states that the building can be used for agricultural storage only. The exemption not include habitable space or spaces in which agricultural products are processed, treated or packaged and shall not be construed to mean a place of occupancy by the general public. Therefore, buildings not meeting the building code requirements and obtaining an occupancy permit cannot be legally used for agritourism activities.
Farmers should investigate getting an occupancy permit. Then, the farmer also has a chance to talk to the building inspector, the person who typically enforces the building code, to ensure that the building is up to snuff and properly permitted, or to undestand what must be done to get it in compliance.
Is your event public or private?
The nature of the event is vital for many reasons including zoning and potential Americans with Disabilities Act requriements (discussed below).
So, how do you know when your event is public? The truth is, it can be hard to tell. If you’re having a graduation party, it's probably private. But, if you’re advertising to the public, charging admission, and allowing anyone to come, it's probably public. Otherwise, it may be unclear if you invited the public onto your land. For instance, if you have a farm-to-table dinner that requires participants to register before the event, it could be considered private, because it's RSVP only but it could also be considered public because the invitation to register was open to anyone.
Unfortunately, it's hard to say with certainty where the line between public and private is. Many lawyers call this a "grey area" of the law and a sliding scale of risk depending on different aspects of the event. We generally recommend complying with the "public" requirements just in case, but farmers should talk to us, or another lawyer about their specific situations.
Lastly, if an event is public, farmers must make reasonable accommodations for the disabled. The Americans with Disabilities Act (ADA) requires most places open to the public to make “reasonable accommodations” for persons with disabilities. The precise accommodations are dependent on the nature of the event and the location of the event, among other factors. Generally, businesses are required to modify their policies and procedures to serve customers with disabilities and to communicate effectively with these persons. For an agritainment event, this may mean creating accessible parking spaces, personally assisting a visitor, renting an accessible port-a-potty, or allowing service animals onto your property.
However, these ADA requirements can also be a bit unclear. There are no set standards for when accommodation is unreasonable. However, a fundamental alteration – a change in the essential nature of your business – is not required. Also, anything that would result in an undue burden, which means significant difficulty or expense, is not required.
It’s essential to consider the ADA because private lawsuits can be brought under the ADA. If a person with a disability feels that your event did not provide reasonable accommodations, then that person could sue your business for discrimination. For precise legal obligations, call the Department of Justice hotline: 1 800 514 0301. Also, your local Small Business Administration may be of assistance. This link also provides useful information for navigating this complex area of the law.
That’s not all!
Believe it or not, there are even more considerations which affect argotainment. But this month, we couldn’t cover them all. So, please be on the lookout for the next part of this series. Or, if you’re eager to start planning your agritainment now, we would be happy to help.
This blog is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation with an attorney.