By Jacob T. Cremer
Did you know that this year, the Florida Legislature prevented local governments from adopting new laws or policies that regulate or restrict agritourism? See § 570.96(1), Fla. Stat. Or that owners of most cattle-dipping vats are exempt from state pollution-control laws? See § 376.306, Fla. Stat. Did you know local governments in Florida cannot regulate apiculture? (Or that apiculture is the science of beekeeping?) See § 586.10, Fla. Stat.
It doesn’t take long for the environmental and land-use practitioner to realize that agriculture is different in Florida. Many people are surprised by these peculiarities. For good reason: We are less connected to agriculture today than we were in the past. Because of the phenomenal increase in agricultural output over the past 100 years, we have gone from 80 percent of our population working in agriculture to only 2.5 percent. Yet agriculture is still Florida’s second-largest industry. Perhaps we should not be surprised by these peculiarities when such a large industry is understood by so few.
Practitioners should be aware of these differences precisely because they do not affect other land uses or types of activities. These peculiarities usually take the form of pre-emptions and exemptions. In the land-use arena, nonresidential farm buildings, farm signs, and even farm fences are exempt from the Florida Building Code as well as local government codes and fees. § 604.50, Fla. Stat.
Another land-use pre-emption is the Agricultural Lands and Practices Act, which since 2003 has prevented counties from adopting any law or policy “to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land” if the activity is regulated by any one of a number of state and federal regulatory agencies. § 163.3162(3), Fla. Stat. See also § 823.14, Fla. Stat. (Florida Right to Farm Act, providing for similar pre-emption along with protections for farms against public and private nuisance suits). Later, the Agricultural Lands and Practices Act was strengthened to prohibit the enforcement of many existing laws and policies related to agriculture. This year, Senate Bill 203 extended the act beyond counties to virtually all local and regional governmental entities.
Beyond land use, agriculture is subject to numerous exemptions to state environmental laws and permitting regimes. See, e.g., § 373.406, Fla. Stat. (certain agricultural activities exempt from state permitting of activities altering surface water flows); § 403.7045, Fla. Stat. (agricultural byproduct material and process waste generally not hazardous waste); and § 403.927 (exempts agricultural activities and agricultural water management systems from typical dredge and fill permit requirements).
Keep in mind that almost all of the pre-emptions and exemptions discussed above require that the agricultural operation be “bona fide” — that is, be used in good faith for commercial agriculture. The standards for making this determination are found in § 193.461, Fla. Stat, the agricultural tax classification (which is not really an “exemption,” even though it is commonly called one).
