Agricultural Overlay Zoning
Joseph Coffey (author), Jonathan Rosenbloom, Claire Child, Lihlani Nelson, & Laurie Beyranevand (editors)INTRODUCTION
Overlay zoning districts are zoning districts that lie on top of one or more traditional zoning districts.[1] Overlay zones are used “to introduce [] additional standard(s) or regulation(s)” to specified areas to accomplish specific goals.[2] Generally, the standards and regulations from the underlying districts remain intact, and new standards and regulations are added. Zoning overlays can be implemented for various reasons (for example, see our brief on Creating Pedestrian-Focused Overlay Zones).[3] This brief focuses on using zoning overlays to protect and promote agricultural land uses. Within overlay zones, local governments may implement a variety of standards and regulations to best meet their needs, including preserving agricultural land from increased residential or commercial development, identifying specific permitted, accessory, and conditional uses, and allowing roadside farm stands, community gardens, or other uses that promote agriculture.[4] For specific briefs on all of these topics see the Food Security and Sovereignty Chapter.
In addition to altering uses within the agricultural overlay district, local governments may also alter building setbacks, impervious surface requirements, and other requirements.[5] Overlay districts can be used to help encourage desired community actions.[6] Overlay standards can be implemented by right or upon permit, depending on the standard or use and whether the community wants increased oversight.
Generally, overlay zones provide local governments with an opportunity to tailor regulations in certain zones.[7] The specificity of overlay zones allows communities to be more precise regarding what they want to regulate.[8] There are three basic steps to creating an overlay district: defining the purpose of the district; identifying the area of the district; and developing specific rules that only apply to the district.[9] Agricultural overlay zones can be drafted to help protect cropland, pastureland, and important soils.[10] Additional goals can include maintaining and supporting a critical mass of agricultural land, ensuring the cost of land is affordable, and promoting efficient land use operations.[11]
EFFECTS
Overlay zones provide local governments with the flexibility and opportunity to make changes to multiple traditional zoning districts at once, thereby avoiding the need to redraft the underlying zone ordinances with precise and consistent language for each district.[12] Similarly, if the enacting government later deems the overlay zone and its regulations unnecessary, it need only repeal the overlay zone rather than specific sections in each zoning district where the overlay would have been situated. As discussed above, overlay zones allow for more directed regulation because they are designed to address a specific issue or set of issues, such as protecting agricultural land.
Zoning systems can be an effective way to promote agriculture in a variety of different forms. As discussed throughout this brief, agricultural overlay zones can protect prime soils and cluster residential development onto non-prime soils.[13] Governments that wish to further promote agricultural land use can incorporate financial or tax-based incentives into the zoning ordinances, which can be geared toward either farmers or property developers. Further, zoning can promote agricultural uses in nontraditional areas, such as urban farms. Overlay zones can be particularly useful for promoting urban agriculture. For example, many zoning codes do not expressly permit urban farms, which can be a substantial barrier for urban property owners who wish to grow crops on their land.[14] Further, overlay zones can allow the retail sale of agricultural products, whether produced on traditional agricultural land or on urban/suburban farms.[15] Wherever overlay zones are implemented, they can be drafted in such a way as to effectively and efficiently promote agriculture by removing express barriers to agriculture codified in previous zoning ordinances.[16] The examples below utilize overlay zones more specifically to encourage agriculture.
EXAMPLES
Southampton, NY
The town of Southampton established an Agricultural Overlay District (AOD) in 2001.[17] The town stated that the soil and agricultural land in Southampton are among the best quality in the state and are highly productive and economically viable.[18] However, the agricultural land in Southampton “has been under considerable pressure for conversion over time to nonagricultural uses.”[19] Approximately 30 percent of the agricultural land in Southampton was protected from residential development when the AOD passed. This land was preserved through the purchase of development rights, private subdivision reserves, and private land trust easements (for our brief on purchasing development rights see Purchase of Development Rights and Transfer of Development Rights).[20] Southampton’s “Comprehensive Plan Update” (CPU) recommends preserving agricultural land through numerous strategies, such as the AOD, with the goal of preserving a minimum of 80 percent of agricultural land and reducing development density by 50 percent.[21]
Southampton’s AOD ordinance listed five factors that the town board should consider when reviewing residential development sites on agricultural land.[22] First, the agricultural land’s real estate market value should be estimated.[23] Second, the projected residential land use must have an “intensity” that is equal to the established market value of the agricultural land; intensity is not defined in this article of the zoning code.[24] Third, the projected residential land should have its real estate market value estimated based on the projected intensity from the previous factor.[25] Fourth, the town planning board’s findings from the first three factors should be compared to Southampton’s 1970 Master Plan to determine if the projected site is suitable for residential development.[26] The final enumerated factor is the degree of the remaining agricultural land that will be kept in “public or quasi-public land trust[s]”; the land trust should further the purposes of the AOD, as explained in the previous section.[27] The town planning board can also consider any additional factors that they deem to be relevant to the AOD.[28]
Incentives and disincentives were recommended by the CPU to encourage private agricultural land protection, in conjunction with “planned residential development, transfer of development rights, purchase of developmental rights, Agricultural Planned Development Districts, and private conservation donations.”[29] The goal of reducing development density in the AOD is specifically tailored for lots greater than 10 acres that wish to increase permitted on-site development.[30] In the AOD, on-site residential development must be designed “to make available and to preserve intact the maximum possible land area for agricultural purposes.”[31] The remaining agricultural open space will be either held in a public or quasi-public land trust, or in a property owner’s association “with an agricultural open space easement running to the town,” or with a qualified conservation organization.[32] The regulations from the AOD apply in addition to the standard zoning regulations.[33]
To view the provisions see Southampton, NY, Zoning Code Art. X § 330-47 (Oct. 23, 2001).
Lexington-Fayette County, KY
Lexington-Fayette County created an Agricultural Market Overlay Zone, one of two overlay zones established in Article 24 of the county’s Zoning Ordinance.[34] The County’s Code defines agricultural markets (AM-1 zones) as “large scale marketing operations of agricultural products . . . and some agricultural-entertainment uses”; agricultural markets are generally over 40 acres in size.[35] In addition to all permitted uses in the underlying zoning districts, AM-1 zones enumerate three permitted uses: livestock markets and stockyards, horse racetracks, and horse stables.[36]
Accessory uses—those uses that are “clearly subordinate and incidental to principal permitted uses”—cannot amount to more than 50 percent of the total square footage of all buildings on the property.[37] All accessory uses from the underlying zoning districts are allowed in the AM-1 zone, unless that use is listed in § 24B-6—prohibited uses.[38] The AM-1 zone lists 12 additional uses that may be allowed as an accessory to a permitted use. This list includes, among other things, parking areas, dwellings, retail sale of agricultural products, and indoor farmers markets.[39] Outdoor retail farmers markets are considered a conditional use, which requires approval from the Board of Adjustment.[40]
There are three criteria that are considered when establishing an AM-1 zone, but only two of the three must be met.[41] First, the land must be within one mile of an intersection between an interstate interchange and a state or federal highway.[42] In addition, the property must have “lot frontage and access” to the state or federal highway, and the intersection cannot be either of the two interchanges between interstates 75 and 64.[43] Second, the property can neither be located within an Urban Service Area used residentially nor within an environmentally sensitive area.[44] Third, if the property was approved for a conditional use permit for a horse sales facility, training facility, or racetrack before August 28, 2003, this can count as one of the two criteria needed to establish an AM-1 zone.[45]
To view the provisions see Lexington-Fayette County, KY, Zoning Code § 24 (June 3, 2020).
Washington, NY
Washington, New York’s Agricultural Protection Overlay (APO) District was established in February 2004 with the purpose of preserving and protecting agricultural lands, farms, and ag-based service industries.[46] The APO District is an overlay district covering 10-acre parcels of land on which at least 50 percent of the soil is prime farmland soils.[47] Any land established as an Agricultural District by the New York Agriculture and Markets law also falls under the APO District.[48] Additionally, any landowner not covered by the APO District may opt into the District by applying to the Town Board, Planning Board, or Zoning Board of Appeals.[49] There are also two conditions that would allow a landowner to be exempted from APO District restrictions, which are discussed in depth in the Code.[50]
Established permitted uses and regulations from the underlying zoning districts remain once the APO District is added.[51] The APO District creates new permitted uses “as of right,” which allows for by-right permitting. This includes all agricultural production, forest and wildlife management, a single roadside farm stand covering less than 500 square feet, equestrian trails, nature trails, and greenhouses.[52] Employee housing and “agriculture-related service or commercial uses” are allowed in the APO District with a Special Permit.[53] Approval standards for the special permit are included in § 315 of the Washington Zoning Code.
Residential development standards are listed in this section of the zoning code as well.[54] If there are conflicting standards or criterion, the town’s Planning Board has the “discretion to resolve such conflicts.”[55] Standards relevant to this brief include developing on the least fertile soil, in woodlands or on the edge of agricultural land, on soils suitable for subsurface sewage disposal, and creating boundaries between residential and agricultural land with “vegetation, topography, [or] roads” in an effort to reduce conflict between the two uses.[56] Additionally, the Planning Board may implement a 75-foot-wide buffer between residential and agricultural land uses to maintain scenic views, which also protects agricultural land.[57]
To view the provision see Washington, NY, Zoning Code § 315(1) (Feb. 23, 2004).
ADDITIONAL EXAMPLES
Puyallup, WA, Municipal Code §§ 20.50.000 – 20.50.035 (June 16, 2020) (establishing an Agricultural Overlay Zone and designating criteria and permitted uses).
Butte County, CA, Zoning Districts, Land Use, and Development Standards art. 4 §§ 24-12 – 24-14 (last visited July 16, 2020) (discussing the purpose of Agricultural Zones, enumerating permitted uses, and establishing development standards).
New Rochelle, NY, Municipal Code § 331-175.11A-G (2020) (creating six overlay zones that allow for by-right urban agriculture and greenhouses over the maximum height limit without requiring a zoning variance).
ADDITIONAL RESOURCES
Agricultural Protection Zoning, Pennsylvania Land Trust Association (last visited July 16, 2020) (discussing the Agricultural Protection Zoning system used throughout Pennsylvania).
Kurt Schindler, Overlay Zoning Districts Can be a Valuable Tool, Michigan St. U. Extension (Dec. 15, 2015) (defining overlay zoning and explaining the pros and cons of using overlay zones).
Douglas Miskowiak et. al., Overlay Zoning, Center for Land Use Education 1, 1 (Nov. 2005) (discussing uses and implementation of overlay zoning).
CITATIONS
[1] Kurt Schindler, Overlay Zoning Districts Can be a Valuable Tool, Mich. St. U. Extension (Dec. 15, 2015), https://perma.cc/Q73H-7RCP.
[2] Id.
[3] See id.
[4] See Southampton, infra note 17; Lexington-Fayette, infra note 34; Washington, infra note 46.
[5] See Douglas Miskowiak et. al., Overlay Zoning, Cent. for Land Use Educ. 1, 1 (Nov. 2005), https://perma.cc/6KCN-SW8S.
[6] Id.
[7] See Dorothy Ariail, Property Topics and Concepts, Overlay Zones, Ame. Plan. Ass’n. (2007), https://perma.cc/JM9R-XVAS.
[8] Id.
[9] Douglas, supra note 5 at 2.
[10] Agricultural Protection Zoning, Pa. Land Tr. Ass’n., https://perma.cc/Q5NQ-UZ4Y (last visited July 15, 2020).
[11] See id.
[12] See Schindler, supra note 1.
[13] See Southampton, infra note 17.
[14] See, e.g., Zoning for Urban Agriculture, Healthy Food Pol’y. Project, https://perma.cc/XJX4-NN2B (last visited July 25, 2020).
[15] See, e.g., Lexington-Fayette, infra note 34 at § 24B-4.
[16] See Zoning, supra note 14.
[17] Southampton, NY, Zoning Code Art. X § 330-47 (Oct. 23, 2001), https://perma.cc/A37G-4K95.
[18] See id. at § 330-47(A).
[19] Id. at § 330-47(B).
[20] Id.
[21] Id.
[22] See, id. at § 330-48(A)(1-5).
[23] Id. at § 330-48(A)(1).
[24] Id. at § 330-48(A)(2).
[25] Id. at § 330-48(A)(3).
[26] Id. at § 330-48(A)(4).
[27] Id. at § 330-48(A)(5).
[28] Id. at § 330-48(A).
[29] Id. at § 330-47(B)
[30] Id.
[31] Id. at § 330-47(C).
[32] Id.
[33] Id. at § 330-47(D).
[34] Lexington-Fayette County, KY, Zoning Code § 24 (June 3, 2020), https://perma.cc/6774-SVC5.
[35] Id. at § 24B-2.
[36] Id. at § 24B-3.
[37] Id. at § 24B-4.
[38] Id.
[39] Id.
[40] Id. at § 24B-5.
[41] Id. at § 24B-7.
[42] Id. at § 24B-7(1).
[43] Id.
[44] Id. at § 24B-7(2).
[45] Id. at § 24B-7(3).
[46] Washington, NY, Zoning Code §§ 315(1)(a)-(h) (Feb. 23, 2004), https://perma.cc/3FWB-WZPU.
[47] Id. at § 315(2)(a)(1).
[48] Id. at § 315(2)(a)(2).
[49] Id. at § 315(2)(d).
[50] Id. at § 315(2)(c).
[51] Id. at § 315(3).
[52] See id. at § 315(3).
[53] Id. at § 315(4).
[54] See id. at § 315(7).
[55] Id. at § 315(7)(a).
[56] Id. at §§ 315(7)(a)(1), (3), (4), (5).
[57] Id. at § 315(7)(b).