The Line Between Agritourism and Entertainment
Despite the abundance of working farms in Pennsylvania and the popularity of farm weddings, there is a dearth of state specific caselaw where the two intersect. When they do, the legal analysis from a zoning perspective is becoming clear.
What does the zoning ordinance state?
What is the primary use of the property?
Is the entertainment use accessory to the primary use?
Are there any other protections that may apply to the use?
In a recent unreported decision by the Commonwealth Court, Fetterolf v. Zoning Hearing Board of Borough of Sewickley Heights, 2021 WL 772933 (Pa. Cmwlth. 2021), the Commonwealth Court upheld an enforcement action by the Borough prohibiting the use of the farm at issue as a school and event venue. The property owners started renting the property, an Agricultural Operation under the Borough’s zoning ordinance, as an event space and venue for public and private events, such as weddings, public fundraisers, and business kick-starters; and for classes, such as canning classes, jelly, soap, and cheese making classes. The property owners were cited for both uses: (1) as an event space which is not allowed under the Borough’s zoning ordinance; and (2) as a school (special or studio), which was allowed as a conditional use in the zoning district.
On appeal to the Borough’s zoning hearing board (“ZHB”), landowners raised constitutional claims as well as several defenses, including accessory use and the Right to Farm Act (“RTFA”). In upholding the ZHB’s decision on the enforcement action, the Commonwealth Court held that while the zoning ordinance allows for the existence of an “accessory use” to the primary Agricultural Operation on the property, the accessory use must be secondary and customarily incidental to the property’s principal use. A “farm-to-table” concept may be accessory to a working farm if the products presented as “farm-to-table” were produced at the farm in question. The ZHB found, and the Commonwealth Court agreed, that the various events that the owners described as “farm-to-table” (including weddings and fundraisers) did not feature food or agricultural products produced on the property. Rather, the ZHB found that the witnesses described a contractual relationship between the parties who rent the property and the property owners indicative of that between the general public and a commercial venue or event space.
As it relates to the classes, the ZHB found that the classes were generally not protected by the RTFA. While a farm stand on the property was clearly protected by the RTFA, the holding of a class that involves some product from the farm along with a group teaching component, is not. The ZHB did find that one of the programs, the Shepard Mentoring program, was protected by the RTFA because the very nature of the program required the working of the land and because the education of prospective farmers is a practice adopted by farmers to ensure the future of production and preparation for market of poultry, livestock and other agricultural commodities.
The demarcation of the line between agritourism and entertainment continues to be refined. While tours, hayrides, “you pick” operations and corn mazes may be protected as accessory to the primary Agricultural Operation, weddings, concerts, and other entertainment don’t appear to meet the criteria of “accessory use.” Correspondingly, the recently enacted Pennsylvania Agritourism Activity Protection Act, which provides limited civil liability for agritourism activity providers, specifically excludes weddings, overnight accommodations, concerts, and food and beverage services from its protections.