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June 18, 2003 Land Use Law Report Page 101 ;I Right to Farm No Building Permit Required For Farm - Worker Housing The Arizona Court of Appeals (Div. One) has ruled a state law exempting land used for "agricul- tural purposes" from planning and zoning regula- tions exempted a farm operator planning to build housing for farm workers on its property from complying with a county's building permit "process (Braden Trust v. County of Yuma, 1 CA -CV 01- 415, June 3, 2003). Braden Trust owns the 7,500- acre Texas Hill Farms in Yuma County. It proposed to renovate farm dwellings and construct additional housing for farm workers at the farm. The county's Department of Development Services told Braden any building or renovation of residential structures was subject to the building permit process and the requirements of the county building code. Believing state law exempted construction of farm - worker housing from the 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 the farm- worker housing was construction incidental to farming and agriculture and thus was not subject to the county's building and zoning codes. The county appealed. County's Argument: Housing Not Covered The appeals court noted the relevant statutory language provides that no county zoning ordinance may regulate the use of land for agricultural pur- poses if the tract is five or more acres in size. An- other provision states county building codes are not applicable to construction incidental to agriculture. The county argued a common -sense construction of that language did not include multifamily residen- tial 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. It argued farm- worker housing has a function independent of agricultural purposes and was not intended to serve agricultural purposes, as distinguished from a structure such as a barn. Braden argued the housing was incidental to agriculture because the occupants would be em- ployed full -time on the farm and providing on -site housing relieved workers of the burden of driving 30 miles or more to work from the nearest off -site housing. The court observed that the terms used in the statute are quite broad in scope and application. Although "agricultural purposes" is not defined in the statute, other laws illustrate its broad scope, the court said. For example, residential dwellings oc- cupied by agricultural employees are valued for taxation purposes as agricultural land. And in the context of agricultural employment relations, "agri- culture" is defined as all services performed on a farm, including recruiting, housing and feeding of agricultural employees. `Incidental' Construction Covered Construction incidental to farming or agricul- ture does not necessarily involve the primary func- tions of the farm, the court continued. It may con- cern functions that are tangentially related to the farm's principal activity. On -site housing for em- ployees can be said to be incidental to farming be- cause the availability of 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, in- cluding 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 leg- islature intended to favor agriculture by limiting governmental control over farm property. The court observed it had no power to change legislative en- actments. If residential dwellings are to be ex- cluded from the statutory exemption, the change must come from the legislature. The court's opin- ion is available from BPI's DocuDial service, No. 39 -4829, 18 p. 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