The Albemarle Board of Supervisors voted unanimously on May 15 to adopt the first phase of new regulations that would place additional restrictions on events at farms within the county.
But several of the members signalled they are ready to get to the next phase, which will further define what it truly means to be an “agricultural operation” under state and local code.
“I’m really happy that we’re about to do phase two,” said Supervisor Liz Palmer (Samuel Miller).
“Phase two needs to come forward,” said Supervisor Diantha McKeel (Jack Jouett).
The intent of the first phase is to harmonize rules for agricultural operations with those for farm wineries, breweries and distilleries. Legislation in previous sessions of the General Assembly prevent Virginia localities from banning agritourism events, though they can be regulated to preserve the “health, safety and general welfare.”
“We initially adopted the current provisions in the ordinance in 2014 and following that we did a lot of public engagement and had a lot of public input when we updated the winery, brewery, distillery regulations in 2017,” said county planner Rebecca Ragsdale. “We’ve learned a lot since 2014 and have had some input on the regulations.”
Supervisors asked in January for staff to review the regulations for “agricultural operations” after it came to light that farms were entitled to 24 events a year with up to 200 people as long as the county staff signed up on something called a “zoning clearance.” Until this first phase was adopted, abutting neighbor did not have to be notified if an application had been made.
“We are only proposing things that are already in our farm winery, brewery and distillery regulations,” Ragsdale said. “We haven’t had proposed any new substantive regulations in terms of rural area land uses or impacts.”
Notification now is required when such an application is made, which will give neighboring property owners some idea that changes could be coming.
“A neighbor would receive a one-time notice with the contact information for someone on site so that if they have any concerns they can contact the property owner directly,” Ragsdale said.
Another change in this first phase is to impose a curfew for amplified outdoor music. The property owner must also demonstrate they have a sound management plan to stay within the county’s noise ordinance.
Setbacks for any tents or other structures associated with the events will be increased from 75 feet to 125 feet.
But the most important change is a requirement of a minimum of five acres in agricultural production before the zoning clearance could be granted.
“We call it the eligibility requirement,” Ragsdale said. “That would not apply to farm sales or certain agritourism type activities. [Events] would be secondary to agriculture so we would make sure the property has agriculture as a primary use and then verify the acreage through the clearance process.”
Ragsdale said there is a special exception process for properties smaller than five acres.
Supervisors asked questions for 25 minutes before opening the public hearing. This indicates a high level of interest from this group of elected officials.
They opened up with questions about how sound from events is monitored, who does the measuring, whether the county could require specific devices, and who would do the enforcement. While those items are not germane to the first phase, they will be incredibly important in the second phase.
Supervisor Ann Mallek (White Hall) suggested the county could ban outdoor amplified music altogether if there are too many bad apples who aren’t good neighbors.
“That is the ultimate sanction that we have in our pocket here waiting to happen,” Mallek said.
Zoning administrator Amelia McCulley said staff urges applicants to comply with the existing rules.
“We talk to [applicants] about music and traffic because those are the key impacts on neighbors,” said McCulley, adding that the county encourages music to be held indoors with closed windows or to use directional speakers to seek sound from bouncing across the countryside.
Mallek also said the county should require property owners to update the name of the contact person every time it changes.
The longest discussion was over the nature of the special exception for properties smaller than five acres.
“The performance standards for the special exception are very general and very blah, and what I need them to be is very specific,” Mallek said. “If you have a tiny piece of property it’s going to impact tremendously whether you can meet parking requirements, circulation and emergency access.”
Ragsdale said special exceptions can have conditions placed on them to mitigate concerns, and these would be analyzed on a case-by-case basis. McCulley said those could involve a reduced number of events, more stringent curfews, or other site-specific requirements.
“We’re going to really rely on the impact to neighbors,” McCulley said. “If there is any evidence of impact and it cannot be addressed through conditions, we wouldn’t be able to support it.”
Mallek suggested eliminating the special exception.
“I can’t imagine a circumstance except where its a half-acre mushroom garden, but why would those people have to have events of 200 people?” Mallek asked. “It’s just not compatible with the space available and the neighborhood. Where are people going to park?”
Supervisor Ned Gallaway (Rio) supported the special exception process.
“There’s a certain point where when you try to regulate with specifics… that they don’t see the possibility of something that could work under the special exception,” Gallaway said. “If [concerns] can be alleviated then it gets written in the special exception. If it’s ridiculous, it doesn’t go forward.”
McCulley suggested that the appropriate time to make wider changes would be in the second phase, which will get underway in the third quarter of 2019.
“The current ordinances [changes are] really to align agricultural operations with wineries, breweries and distilleries,” McCulley said. “If we held [special exceptions] up and just addressed them for agricultural operations, we would have the same disconnect.”
“The state opened up the door for agricultural operations holding events and activities because they were on a roll with farm wineries, and then breweries and distilleries,” said county attorney Greg Kamptner. “This is the fourth of the four agriculturally-related activities where the General Assembly greatly expanded what it means to be agriculture.”
Kamptner said Albemarle’s zoning ordinance defines what an agricultural operation is and also defines what “bona fide” means.
“It’s pretty well-defined now, although we’re doing some more refinement in phase two,” Kamptner said.
Two people spoke at the public hearing to support adoption of the first phase, including myself.
“We’ve heard from many residents who live next to agricultural operations who argue that there ‘is a substantial impact on the health, safety or general welfare’ to outdoor events that generate noise, traffic and other outcomes,” I said. “Their property rights are just as valid as their neighbors, and without this amendment, they have little to no voice.”
The other person who spoke was Morgan Butler of the Southern Environmental.
“We think it makes sense to take some of those baseline protections that currently apply to events at farm breweries and farm wineries and apply them to events at actual farms,” Butler said.
He added that there are terms in the zoning ordinance that “suffer from a lack of clarity” and that they should be tightened up in the second phase.
“We think it would be very beneficial to go through the public process and community input process of thinking about how we can nail those terms down,” Butler said.
Moving on to next steps
After the public hearing, supervisors continued to ask questions about what an “agricultural operation” actually is.
“I still am not clear what a legitimate agriculture is,” said Supervisor Norman Dill. “If someone has ten acres and a few fruit trees, and picks them and sells them, what is the standard?”
Ragsdale said the zoning ordinance has a list of definitions that govern agriculture, including one that specifies what consists of a bona fide agricultural operation.
“We have a number of factors that we can consider when looking at the farm in its totality,” Ragsdale said.
Kamptner said some of those factors include federal tax forms, receipts showing gross sales and anything else that zoning staff could use to determine if the agricultural activity was bona fide.
Mallek said she set a high standard for whether a property is truly using agriculture as its primary use.
“Primary use means, in a way, that more than 50 percent of their income needs to be coming from agriculture,” Mallek said. “Next time around we may get to that.”