Popularity of agritourism continues to flourish

Many of us enjoy wandering through a corn maze, visiting an orchard, and taking the kids to a local pumpkin patch. These activities are categorized as agritourism, and Ohio law considers them agriculture. However, Ohio did not define the rights of agritourism until Ohio Senate Bill 75 became law on Aug. 16, 2016. With this law, Ohio defined agritourism and addressed civil liability, property taxation, and local zoning concerns of nontraditional farm activities. With this law, Ohio defined agritourism as an agriculturally related educational, entertainment, historical, cultural or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in, or enjoy that activity. In addition, the law addressed liability concerns, CAUV designation and zoning exemptions. The law states that a provider does not have a legal duty to remove risks that are "inherent" in agritourism activities, and will not be liable for any harm a participant suffers because of such risks. "Inherent risks" are dangers or conditions that are an integral part of an agritourism activity. Inherent risks include: • Surface and subsurface conditions of land; ordinary dangers of structures or equipment ordinarily used in farming. • Behavior or actions of domestic or wild animals, except for vicious or dangerous dogs; the possibility of contracting illness from physical contact with animals, animal feed, animal waste or surfaces contaminated by animal waste. • A participant's failure to follow instructions or exercise reasonable caution while engaging in the agritourism activity. Agritourism operations must have a warning sign posted at all entrances to the location or activity to receive the law's civil liability protection. The sign must have information specified by the law that basically informs the participants that they are assuming risks and that the owner/operator is not liable. The new law ensures that agritourism parcels are eligible for Ohio's Current Agricultural Use Valuation (CAUV) program. The operation must fit the requirements for traditional farmland to qualify — such as acreage size and adjacent farmland — and must fit the legal definition of a farm. The new law also states that agritourism will fall under the "agricultural exemption" from local zoning. Agricultural exemptions prohibit local zoning from restricting activities — such as the type of agriculture — on lands designated for agriculture use. Some regulations are allowed as they relate to public health and safety, such as size of structure, size of parking lots, and setback lines. The zoning exemption has been challenged by several county townships concerning barns built for ceremonies such as weddings and other activities. The townships claimed that these "barns" were not part of an agriculture operation and should not be considered agritourism — thus, townships could prevent them by zoning restrictions. There have been two court cases settled in 2020 addressing these issues. One was successfully identified as agritourism because grapes were grown on the farm and wine had to be bought from the farm for weddings or other activities. The making and selling of wine was the primary activity, rather than the barn (growing grapes for wine is an agriculture industry). The second was not successful because the barn was not associated with an agriculture industry. Ohio courts will continue to sort out the meaning of agricultural exemption from local zoning for agritourism. For now, it appears that a zoning exemption must be associated with a production practice. Where agricultural goods are being produced and sold, additional incidental activities such as celebratory events that are related to agricultural production will likely fall under the agricultural exemption. However, local zoning may prohibit celebratory events (wedding and party barns) that don't have a clear connection to agricultural production and instead appear to be the primary rather than incidental use of the property. Peggy Hall, Ohio State University field specialist in agricultural and resources law, does a good job summarizing the implications of the 2016 Agritourism Law: • The law is designed to address agritourism activities that diversify an existing farm — where the activities occur on land that is otherwise engaged in agricultural production. For example, a person who purchases 10 acres of vacant land with the intent of creating a corn maze and petting farm will not benefit from the law because there is no agricultural production already taking place on the land. • Visitors to agritourism operations must take more responsibility for their own safety. The law recognizes that there are inherent dangers on farms that can be beyond the control of agritourism providers. Visitors who wish to participate in an agritourism experience must be aware of these dangers and be prepared to protect themselves by following directions, paying attention to surface conditions, being cautious around animals and equipment, supervising their children, and generally exercising reasonable care while on the farm. • Agritourism providers must be prepared to meet the law's signage requirements. Providers who fail to post the right sign in the right place will lose the law's immunity protections. • Local officials must treat free and fee-based agritourism activities equally. Unlike some agricultural laws, there is no distinction in the new law between commercial and free agritourism activities, for example, educational farm tours, if it is conducted on a "farm." • Counties and townships must identify public health and safety issues and develop appropriate zoning standards. Counties and townships must be prepared to recognize agritourism situations that pose health and safety concerns due to the size and location of a structure, ingress and egress on the property or the size of a parking area. If a public health or safety issue is identified and the county or township wants to regulate the issue, it must have enacted zoning standards that address the issue. Agritourism is a growing industry. The 2016 Agritourism Law has encouraged the development of more of these operations for the enjoyment of all. Additional information on agritourism may found at the Ohio State University Extension's Agriculture Law Blog URL, https://ohioaglaw.wordpress.com/tag/agritourism-zoning/ The 2016 law may be found on the Ohio General Assembly's website at https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA131-SB-75 Lentz is Extension educator for agriculture and natural resources for Ohio State University Extension-Hancock County. Contact him at 419-422-3851 or lentz.38@osu.edu for additional information.