Blog - Groves Law

Blog Jul 27, 2023 | Read Time: 3 minutes

Florida Building Code Exemption for Farm Buildings

By Kara Groves

Special Exemptions for Florida Non-Residential Farm Buildings Constructing new buildings for your business can be a complex process, with numerous regulations and compliance requirements to navigate. However, Florida farmers enjoy special exemptions that make it easier to add non-residential structures essential to their agribusiness. These exemptions alleviate the burden of compliance, allowing farmers to focus on growing their businesses and making the most of their land. We will explore the special exemptions made for non-residential farm buildings in Florida, how they work, and what farmers need to know. Understanding The Statute Florida statute 604.50 defines what these exemptions are and for what they may be applied. According to the statute, “Notwithstanding any provision of law to the contrary, any nonresidential farm building, farm fence, or farm sign that is located on lands used for bona fide agricultural purposes is exempt from the Florida Building Code and any county or municipal code or fee, except for code provisions implementing local, state, or federal floodplain management regulations.” According to this statute, any non-residential farm building, farm fence, or farm sign located on lands used for legitimate agricultural purposes is exempt from the Florida Building Code and any county or municipal code or fee. The statute defines a non-residential farm building as “any temporary or permanent building or support structure that is classified as a nonresidential farm building on a farm under s. 553.73(10)(c) or that is used primarily for agricultural purposes, is located on land that is an integral part of a farm operation or is classified as agricultural land under s. 193.461, and is not intended to be used as a residential dwelling.” Examples include barns, greenhouses, shade houses, farm offices, storage buildings, or poultry houses. If your structure meets this definition, it is exempt from Florida Building Code. The primary purpose of your structure determines if it meets the statute’s definition. While non-residential farm buildings are exempt from the Florida Building Code, it is important to note that if your structure is built within a FEMA flood zone, you must still comply with FEMA flood regulations. These regulations ensure that buildings are constructed to withstand potential flooding and maintain safety standards. Further, you may be exposing your business to code enforcement issues if the building you constructed under the exemption is primarily being used for public accommodation. Agritourism operators should be mindful of the penalties they could face if it appears to the outside world that the building is more often than not being used solely for public events. Communicating With Your County Although your non-residential farm building may qualify for exemption, it is essential to communicate with your county about your new addition. Some counties may require you to notify them about your exempt farm structure before you build it. Some counties may require you to submit proof that you have the agricultural tax exemption, while others may have no specific requirements. For example, Hillsborough county’s website has applications to be submitted on their website for the exempt structures. It is crucial to understand your county’s expectations to avoid confusion and potential fines. As noted above, any agritourism operator can find themselves in trouble with their local government if they fail to make sure everyone’s on the same page. Properly disclosing your exempt structures, if required, saves time, and ensures a clear understanding between you and your county. Conclusion Florida farmers benefit from special exemptions outlined in statute 604.50, which provides relief from compliance with the Florida Building Code for non-residential farm buildings, fences, and signs. By meeting the qualifications defined in the statute and effectively communicating with the county, farmers can easily add structures to their farms without unnecessary regulatory hurdles. These exemptions enable farmers to focus on their agricultural activities and contribute to the growth of their businesses. Authored by Madison Long, Intern Questions about the Florida Building Code Exemption? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

Blog Mar 9, 2023 | Read Time: 4 minutes

Best Management Practices & the Ag Classification: A Look at Citrus Farms

By Kara Groves

Here at Groves Law we get a lot of calls from folks we’ve lovingly named the ‘casual’ farmer. You buy property with a residence on it and just enough land to feel like you should do something with it. You’ve got a green thumb. Or perhaps you’re a bovine whisperer. Either way, you have enough property for a small farming operation, one that just might qualify you for reduced property taxes thanks to Fla. Stat. 193.461 and the ag tax classification (also known as the Greenbelt Exemption). Unfortunately for the casual farmer, many counties have changed their ways since the Greenbelt Exemption became known as the ‘rent-a-cow’ provision—essentially offering a significant tax break to landowners doing very little at all (i.e., providing grass to cattle someone else tends). These days, counties have created lengthy supplements (see Leon, Martin) and guidelines (Volusia, Manatee) to fight certain bad practices that have caused issue over the years. Some view these hoops as obstructive, infringing on a property owner’s ability to make money and use their land as they wish. We here at Groves law agree that these safeguards restrict the more ‘casual’ ag operation, but the unfortunate reality of life in Florida is that certain ag industries have been devastated by a lack of standard practices–an approach that has done more harm than good. The citrus industry, as a prime example, helps explain why landowners now face a bit more scrutiny before their bona fide farm will be approved –and we’re here to guide you through it. Citrus Greening & Protecting the Industry Citrus greening is now infamous in Florida. The disease has caused billions in economic losses statewide and continues to disrupt national supply chains. Spread by the Asian citrus psyllid, this small insect can carry a bacteria that makes the fruit unsuitable for humans after it feeds on the plant’s leaves and stems. And it’s not exactly an easy disease to control. The biggest issue, and part of why casual farmers have been discouraged from growing citrus, is that detection of the disease takes a bit of legwork, including constant scouting for yellowing and discoloration, and lab testing. More uncared for citrus means more bugs, establishing in larger areas at a faster rate. In part because of these issues, Florida is currently under quarantine by the USDA, as updated in Federal Order DA-2022-31. That means allowing citrus produced in Florida to leave state lines can be a federal offense. The importance of this industry to the state and nationally prompted Florida to create Chapter 601, the Citrus Code. It requires all citrus producers who do not sell directly to consumers to become licensed as a Citrus Dealer and hold bond. Chapter 20 of the Florida Administrative Code is the rule counterpart to the Citrus Code, outlining recordkeeping requirements, advertising restrictions, and “methods to determine compliance” (which lists scientific guidance for the state’s inspection of citrus quality). The Casual Farmer & Best Management Practices Which brings us back to average homeowner who likes oranges and wants to grow a few for profit. It’s not impossible to get the ag classification for citrus, but the state’s interest in this industry means your local property appraiser wants to see you appropriately licensed and familiar with these standards. Those looking to fly under the radar will likely do more harm than good to the industry as a whole. To do it right, start by taking a look at the various guidelines promulgated by the Florida Department of Agriculture (FDACS), the University of Florida, and statewide citrus associations. The Best Management Practices, or BMPs, are put out by FDACS and are primarily related to water control. You can find the Citrus BMP Manual here. Familiarizing yourself with the BMPS allows you to enroll in the FDACS BMP program, proof of which should be filed with your greenbelt application. It’s a great indicator to the property appraiser that you’re a serious commercial operation. There are also Good Agricultural Practices, or GAPs, which deal with food quality and safety. You can read about them here, put out by the Florida Citrus Packers. UF also has a “Production Guide” specific to citrus greening. Including this information in a business plan submitted with your application will go a long way. Citrus growers that qualify for the Citrus Dealer license should make sure the license is issued before they apply for the Greenbelt Exemption as well. This article focuses specifically on citrus farms and why it may not be the best idea to purchase an old orange grove in the hopes of getting the Greenbelt Exemption. However, growers of avocados and timber farms also have particular hoops to jump through for these state-protected industries. Keep in mind too that many existing ag operations in Florida likely have BMPs, and you can see the full list here. Regardless of the industry you want to be a part of, it’s always a good idea to incorporate this information into your greenbelt application, and implement these practices as best you can. Even the casual farmer can help the ag economy thrive, and we’re here to help you along the way. Questions about Citrus Farms? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive […]

Blog Nov 11, 2022 | Read Time: 3 minutes

WHAT THE FLORIDA “AGRITOURISM” STATUTES DO — AND DO NOT, DO: PART III

By Kara Groves

This is a continuation of a three part series. Check out part one here and part two here. The Agritourism Statutes Do Not Make You Completely Exempt from the Florida Building Code The exemption from the Florida Building Code under Fla. Stat. 604.50 and 53.73(10)(c) only applies to “nonresidential farm buildings.” So even if you fall under the Agritourism Statutes, structures that are not considered “farm” or “nonresidential” must have appropriate building permits. In other words, a barn previously qualifying as a nonresidential farm building that is now being used as a bed and breakfast or overnight stay may still be subject to building permits. See also AGO 2009-26 (“[t]he term “residential” in section 604.50, Florida Statutes, does not require that persons reside in the dwelling on a full-time basis … a nonresidential farm building would be subject to a zoning compliance permit to the extent such a permitting requirement does not prohibit, restrict, regulate, or otherwise limit an activity of the farm.”) Similarly, the statute very clearly “does not prohibit the enactment of new local governmental ordinances related to the construction of new or additional structures intended primarily to accommodate members of the general public.” See UF’s Agritourism Packet. Any additional buildings erected that are more often used for visitors than for your ag operation will be subject to building permits. Moreover, several cities and counties also have packets you need to fill out before you start building without permits. See Polk County Exemption Packet. So it’s best practice to get it sorted out with planning and zoning before you’re hit with a Code Enforcement action charging you money per day until you pull permits. And buyers of ag-zoned property with additional “farm buildings” should do their due diligence and confirm that the appropriate permits were pulled, because once you own the property, any pre-existing failures to comply with the permits fall to you should an issue arise. The Agritourism Statutes Can Restrict How Local Governments Regulate You I know much of this article has been spent describing all the ways in which the Agritourism Statutes are limited. However, at the end of the day, the state government has declared agritourism a protected industry of the state, and ag operators do hold power to fight local governments that go too far. Remember, local government ordinances and permitting that “prohibit, restrict, regulate, or otherwise limit an activity of the farm” are not enforceable against your agritourism activity. AGO 2009-26. This can include restrictions on “hours of operation, number of participants, [and] parking regulations.” UF’s Agritourism Packet. With that in mind, should your farm become the subject of a code enforcement action related to these issues, be sure to think through whether the ordinance will impact your ag operations, i.e. will the development of a parking lot take away a significant chunk of growing area for your nursery? Will the requirement to create landscaping buffers negatively affect your livestock? See generally, Wilson, et al. v. Palm Beach County, 62 So.3d 1247 (4th DCA 2011). However your ag operations are impacted, those are the arguments to make to the city or county as to why the specific change they’re asking you to make is not enforceable against you. We’ve found that making efforts to compromise with your local government on some of these issues goes a long way. Consider limiting how many days a week the public can come onto the property. If you’re looking to create a wedding venue, avoid providing food or alcohol as an included service. And above all else, just remember: despite the cheeky tone of this article, zoning and planning compliance is a highly complex area of the law that’s hard for even attorneys to understand. The best and most important way to protect your agribusiness against these issues is to know when to reach out to a professional before disaster strikes. Questions about the Agritourism Statutes? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

Blog Sep 7, 2022 | Read Time: 3 minutes

What the Florida “Agritourism” Statutes Do — And Do Not, Do: Part II

By Kara Groves

This is a continuation of a three part series. Check out part one here. Being Zoned Agriculturally Does Not Mean You Fall Under the Agritourism Statutes This is a different way of stating the above. It is a common misconception that property zoned agricultural (A, A-1, etc.) or rural (R, AR, OR, etc.) automatically conveys agritourism rights to the owner. It does not. As I said above, the Agritourism Statutes only apply to properties with the ag tax classification. The ag classification and zoning are two separate things. While it’s true that the way your property is zoned can be helpful for being able to use it a certain way, the ag tax classification does not automatically attach to the property just because of the zoning. The county property appraiser and your local zoning office likely neither work in the same place nor communicate to each other on these issues, so don’t get them confused. No matter how obvious your farming operation is or how many ag-related zoning designations the property has, you still have to apply to your county’s property appraiser office to qualify for the ag classification. That being said, your local zoning code may provide for some agritourism-like benefits for type of zoning designation you have. For example, Hernando County allows for a winery or distillery as a special exception under Section IV(6)(a)(3) of its Code. That means if you follow the County’s procedures for applying for a special exception, pay fees, and potentially build a parking lot, you’re able to have a commercial operation on ag property, much like you would under the Agritourism Statutes. But, you will not be exempt from the Building Code or fall under the liability safe-haven of the Right to Farm Act like other property owners with the ag tax exemption. The Agritourism Statute Does Not Make You Immune from Liability Even if you qualify for some of the protections under the Agritourism Statutes, you are not immune from liability. Folks often think they are protected from a lawsuit because of Fla. Stat. 570.88, which states that agritourism operators are not liable for injuries resulting from the “inherent risks” of the agritourism activities. But that doesn’t mean the injured party can’t sue you. They just have to show that you either: 1) failed to post appropriate signage under Fla. Stat. 570.89, 2) injured them as result of something outside of the “inherent risk” of the agritourism activity (like falling when entering the bathroom); or 3) even if they were injured as part of an “inherent risk” of the activity, you were reckless in how that area was maintained or the activity conducted. Again, this is why it’s so important for farmers operating agribusinesses “on the side” to approach these activities with the same caution as their day-to-day business—consider having an attorney draft releases of liability for the activity, review signage compliance, and assist with preparing safety plans specific to the activity being conducted. Similarly, the Florida Right to Farm Act, Fla. Stat. 823.14, does not make you immune from a nuisance claim even if you fall under the Agritourism Statutes. The extent of the noise, smell, or vibrations, among other issues, are all questions of fact that may subject to agritourism operator and the employees to being shut down under a successful nuisance claim. For more details on this Act, check out my blog post here. Tune in for Part III, the final segment of this series, discussing Florida Building Code and local government regulation. Questions about the Agritourism Statutes? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

Blog Aug 17, 2022 | Read Time: 3 minutes

What the Florida “Agritourism” Statutes Do — And Do Not, Do: Part I

By Kara Groves

We wanted to create a three-part series to provide some clarity on these complex issues. Check back later this month for Parts II and III! Florida Statutes 570.85 to 570.89, or the “Agritourism Statutes,” are well known to agribusinesses across Florida. At first blush, they appear to be all-powerful statutes freeing ag property owners of local government restrictions. For example, Fla. Stat. 570.85 states: “a local government may not adopt or enforce a local ordinance, regulation, rule, or policy that prohibits, restricts, regulates, or otherwise limits an agritourism activity on land…” To the untrained eye, this is a holy grail of sorts, allowing property owners to conduct their agritourism business how they please, free of government inference. Well, dearest readers, I’m here to ruin the fun. These seemingly straightforward statutes, alongside Fla. Stat. 823.14 (the Right to Farm Act), and Fla. Stat. 193.461 (the Ag Tax Classification), have unfortunately created more confusion and frustration than they’re worth. It goes something like this: a prospective client emails my office, explaining that they have “agricultural property,” so they — should have a lower tax rate, or the city or county shouldn’t be able to stop them from doing a certain activity, or that they must be exempt from permitting. Unfortunately, that’s just not the case. And to help sort through some of these frequently asked questions, we’re prepared a list of what the “agritourism” statutes do, and do not, do. The Agritourism Statutes Do Apply to Property Owners with the Ag Tax Classification, But No One Else The language of Fla. Stat. 570.85 is clear: “a local government may not adopt or enforce a local ordinance, regulation, rule, or policy that prohibits, restricts, regulates, or otherwise limits an agritourism activity on land classified as agricultural land under s. 193.461.” Fla. Stat. 193.461 is the ag tax classification statute. So, read together, the Agritourism Statutes only apply if you have the ag tax classification. See my full blog post on that ag tax “exemption” here. In a nutshell, the ag classification is not an easy feat to obtain, and some counties make it more difficult than others— requiring four years of ag-related income records, lease agreements, copies of personal property tax returns for equipment, or directing how certain agribusinesses, like nurseries or hatcheries, should operate. See, for example, Hillsborough County’s Ag Classification Guide. So, if you don’t have this classification already in place, you will not benefit from the Agritourism Statutes. But you may not want the classification anyway. This is another important point often lost on property owners or prospective buyers–the more “improvements” you make to the property, the less advantageous the ag classification is for you. That’s because part of the calculation incorporates the value of existing farm buildings, which may drive up the ag value of the land and in turn may not actually reduce your tax burden as much as anticipated. Similarly, any part of the land that is claimed as homestead will not be included in the ag classification and will be taxed at the normal fair market value. Moreover, every change of ownership requires the new owner to reapply. In other words, do not base your ability to conduct agritourism activities on the prior owner’s ag tax classification. You are unlikely to be re-granted the ag classification within the first year after your purchase, and will likely have to pay property taxes on the fair market value instead, unless you intend to continue, uninterrupted, the prior owner’s ag operations and are able to immediately reapply for the classification after closing. That’s why it’s important to speak with an attorney, CPA, or your county property appraiser’s office to determine whether the ag tax classification is even worth pursuing. Part II will cover Agricultural Zoning and the Right to Farm Act. Stay tuned! Questions about the Agritourism Statutes? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

Blog Jul 1, 2022 | Read Time: 3 minutes

Florida’s 2022 Crop Freeze: USDA Disaster Assistance

By Kara Groves

At the beginning of this year, counties across Florida suffered from several unexpected, ‘hard’ freezes. Temperatures plummeted below 32 degrees for an extended period of time, destroying or reducing the quality of several cash crops throughout the state, including citrus and berries, and creating livestock-related issues. If you’re one of the farmers whose operations suffered from these freezes, you may be in luck. The U.S. Department of Agriculture’s (USDA) has approved Florida’s “disaster declaration” request for 17 primary counties and 10 contiguous counties affected by the freeze. So what exactly does that mean? Basically, once the USDA has made a “disaster declaration,” farmers in qualifying counties (can apply through local Farm Service Agencies (FSAs) for “emergency” loans, which cover costs or losses associated with the disaster. As with everything, these loans have specific eligibility requirements and require certain documentation to qualify. The qualifying counties in Florida are as follows: Broward Hardee Indian River Okeechobee Polk Collier Hendry Manatee Osceola St. Lucie DeSoto Highlands Martin Palm Beach Sarasota Glades Hillsborough Brevard Lee Orange Pinellas Charlotte Miami-Dade Pasco Sumter Lake Monroe Eligibility First, you have to be a U.S. citizen who is an “established” farmer with intent to continue operations. In other words, you cannot intend to use the money to wind up operations and retire. Instead, you have to show that you have the “ability, training, or experience” to pay off the loans over time, which is typically done through creation of a farm plan reflecting your efforts to repay the loan and stay in business. The funds can only be used toward certain operational costs, so the FSA requires you to explain how the money will be allocated. Acceptable uses for the money include paying for production costs, refinancing certain debts (not involving real property), restructuring operations (like paying for your company to be reorganized), covering basic living expenses, or refurbishing or upgrading “essential property” (think equipment). You also have to show a certain total loss to qualify. You must be able to “directly attribute[]” a 30% yield or quality loss of your primary crop to the freeze through your own recordkeeping. In other words, the FSAs dealing with Florida farmers will look at whether there were other circumstances, such as negligent handling of the crop, that caused damage unrelated to the freeze. The loans also only cover the actual crop loss, up to $500k in damage. Meaning the loan will not cover the value of the crop (i.e. the profit you could have made on the crop in your market), but only the replacement cost according to industry standards. Finally, these loans are essentially designed as last resorts, so you must have been refused by other commercial lenders and provide proof of that refusal before you can be eligible. The Application Process You must apply within eight (8) months of when the crop loss occurred. The application forms can be found here. What documentation is required to show refusal from commercial banks depends: if you’re requesting an FSA loan above $300,000, you must provide two refusal letters; for loans between $100,000 and $300,000, you only need one; and for all lesser amounts the USDA makes a case-by-case determination. In all cases collateral is required to secure loan repayment. The repayment plan terms are negotiate, and can be pretty favorable depending on the security involved, the scope of the loss and your financial situation. For some loans, only one payment may be required per year. For others, like loans for operating expenses, the loan must be paid in twelve or eighteen months, depending on the commodity involved. You may also be required to obtain crop insurance or attend financial management training before disbursement. All in all, depending on the scope of your livestock or crop loss, it may be worth giving the FSA a call and working with counsel to develop your options. Questions about USDA Disaster Declaration Applications? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

Blog Mar 11, 2022 | Read Time: 4 minutes

Challenging an Ag Exemption Denial in Florida

By Kara Groves

It seems more and more these days local property appraisers are taking a fine-toothed comb to ag exemptions around the state, issuing denials for both existing ag properties and new applicants. Unfortunately for property owners, an ag exemption denial triggers fast-approaching deadlines and rules that must be followed to avoid foreclosing your opportunity to challenge the decision. Be sure you understand the steps to take and what may be required to appeal the denial. The Denial As a new applicant that is denied the ag classification, you’ll receive a Notice of Disapproval from the property appraiser by August of the year you apply. If you receive a Notice and are already classified agricultural, that’s usually the result of an investigator from the property appraiser’s office conducting a field audit or similar review of your property and determining that there’s been a change of use or other issue warranting removal of the ag classification. In that case, you could receive a Notice at any time and it could apply to multiple years. The Notice is a standard form across counties, seen here for reference, and will be accompanied by a TRIM Notice showing the alleged taxes owed. It should also give you some idea of the basis for the denial. VAB Appeal Upon Notice of the denial by the County property appraiser, you have thirty (30) days to appeal or “contest” the decision to either a Special Magistrate or the Value Adjustment Board (VAB), depending on the size of the County. The Special Magistrate is typically an attorney, and the VAB consists of two county commissioners, a school board member, and two members of the public. Although independent of the property appraiser and tax collector, the Magistrate and VAB still operate as an arm of the Department of Revenue, and are bound by Florida Statutes Chapter 194 and Florida Administrative Code, Chapters 12D-9 to 12D-10 in rendering decisions. You do not have to appeal to these quasi-judicial bodies, but it is a much cheaper option to potentially get the denial reversed than pursuing litigation. If you decide to participate in a VAB or Magistrate hearing, you’ll have to fill out the petition, DR-486, found here, and submit to your local VAB clerk. There might be a small fee (under $100) for the submission. You’ll receive a hearing date and fifteen days prior you have to provide the evidence to the VAB clerk that you plan to use at the hearing to contest the disapproval. Hire a court reporter. Overall, it’s much like an evidentiary hearing in court litigation, where you have an opportunity to present support for your case and take testimony. You do not get the benefit of subpoenaing witnesses, however. The property appraiser will also appear and state their reason for the denial. Once the hearing occurs, the VAB or Magistrate will likely wait to rule and issue the decision at a later time. If you appeared in front of a Magistrate, that decision is technically only ‘recommended’ and not ‘final,’ as only the VAB can enter a final decision. You will receive notice of when the VAB meets to make that decision. You can appear at that ‘final’ VAB hearing, but cannot present new evidence at that time. That’s because the VAB can just accept the Magistrate findings (and typically do) without review of the underlying record. Circuit Court Litigation However you get there, once a final VAB decision is rendered, you have 60 days to appeal to the circuit court. A circuit court action is a de novo review standard, meaning you have a new opportunity to present your case without the court being forced to give weight to the underlying decision. You and the VAB can still incorporate testimony or evidence presented at the VAB hearing into the circuit court litigation, however. Alternatively, regardless of whether you sought a VAB hearing first, you can instead sue in circuit court within 60 days of the property appraiser certifying the tax rolls, which is typically August or September. Again, however you get there, you must pay the taxes purportedly owed on the Disapproval, or at least what you in good faith believe you owe, prior to filing suit in circuit court against the property appraiser. If you decide to pay what you in ‘good faith’ believe you owe, don’t be sly, as there’s language in the statute that if you’re too far away from what is determined you owe, you may have to pay back the remainder with interest. Whatever you end up choosing, your first step should be to enforce your right to an informal meeting with the Property Appraiser to get further insight into the decision or potentially correct issues. Doing so will better orient you on whether you should appeal to the VAB or sue the property appraiser directly. Questions about a Notice of Disapproval? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

Blog Jan 25, 2022 | Read Time: 3 minutes

2022 Florida Legislative Session & Ag HB 901: Roadside Signage

By Kara Groves

Groves Law here to provide an update on the January 2022 legislative session for the farm and ag industry. A major House Bill (HB) to know about is HB 901: Fresh from Florida Roadside Farm Stand Signage. Let’s dive in to what it means for agribusinesses and their roadside stands. The Basics of HB 901 HB 901 creates new statute, Fla. Stat. 570.851, which would allow roadside stands to take part in the Fresh from Florida certified signage program. Moreover, the Department of Agriculture Commissioner could designate any certified roadside stand a “state tourist attraction.” The primary sponsor of the bill is Homestead Democrat Representative Kevin D. Chambliss, along with Senator Tina Polsky, Boca Raton Democrat, pushing a sister bill in the Senate. The pair seem to want to boost the agricultural economy in South Florida. Fresh from Florida If you’re part of the ag industry, or taken a close look around your local supermarket, you likely already have some idea of what Fresh from Florida is. It’s a Department of Agriculture sponsored-program that the legislature established over thirty years ago. It’s essentially a marketing and networking membership that provides trade leads and guidance, and reimburses 50% of print ad costs (max $1,500) and vehicle wraps up to $500. For this statute, an Advisory Council of twelve people will develop uniform signage which must include a Fresh from Florida logo and emblem. How to Qualify To be considered a roadside stand, you have to qualify under Fla. Stat. 823.14(3). Which means you must market farm products and be on a farm. A farm in this case includes the ” land, buildings, support facilities, machinery, and other appurtenances used in the production of farm or aquaculture products,” and a farm product is any “animal or insect useful to humans and includes, but is not limited to, any product derived therefrom.” The new statute also provides additional requirements: the farm products have to be “produced on premises,” the stand must be open a minimum of 4 days per week, 10 months of the year, the farm must have a “growing area” of 87,120 sq. ft., offer tours of the “growing area” and “[d]isplay permanent signage on the premises specifying the times for the tours and hours of operation of the agricultural facility.” Interestingly, the bill contains a restriction. Agricultural facilities like wineries or distilleries that do not grow their own products on-site do not qualify. The Process Any interested operator would apply to the Department of Agriculture to register as a certified roadside farm stand and pay some corresponding fees. If you’re approved, you can pay the Department of Transportation to place your signage on certain highways and roads. We’ll keep you updated as the bill passes through the House. Questions about HB 901? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

Blog Dec 17, 2021 | Read Time: 4 minutes

Maintenance, Repair, & Improvements — Who Does What in a Farm Lease?

By Kara Groves

Agricultural leases have become increasingly common as new generations of farmers look to enter niche markets and aging landowners hope to supplement their income. For farmers entering a lease for the first time, it may be overwhelming to go through every provision to fully understand its effects. However, one of the most critical (and varied) sections that farmers should familiarize themselves with are related to maintenance, repair and improvements to the land and its buildings. Maintenance v. Repair v. Improvement Each term is different from the other and has a specific meaning in the lease. As you can imagine, repair is a pretty straightforward concept–who fixes what (i.e. a barn door)? It is typically divided by the scope or cost (see more below). Maintenance refers to the routine upkeep of the land and its buildings and is more often separated out by the area in which it occurs. Improvements actually have a specific meaning under the federal Code, not just your lease. Improvements are a specific development to the property that increases “capacity, productivity or efficiency,” fixes a “design flaw,” adapts the property to a “new or different use,” replaces a “major component,” creates a “physical enlargement,” or restructures it after its “useful life.” Developing the land in a way that fits under these definitions can create depreciation value to either the landowner or lessee. Repair Repairs can be a tricky thing both in who is allocated cost and when approval is needed. A badly written lease may not make reimbursement terms clear, which makes the farmer at the mercy of the landowner for whether and when they get paid. Plus, even if the lease is silent, the lessee is still responsible to make repairs necessary to prevent deterioration, so it’s not like you’re able to avoid liability either. Better practice is to ensure specific types of repairs are allocated appropriately to each party, with more minor repairs, like fixing a fence post, being the responsibility of the farmer, and more significant repairs, like large equipment part replacement, going to the landowner. Best practice may be to go with a fixed amount instead: anything over $500 is landowner’s responsibility or requires pre-approval. Either way, make sure reimbursement terms, including the nature of proof required and when it can be expected, are clear, and, in any event, save receipts, as you may be able to deduct certain repairs for income tax purposes. Maintenance Routine upkeep happens so frequently that it’s not often feasible to allocate dollars to who does what. Again, everything becomes more hairy when the lease is ambiguous, so it’s a good idea to at least make sure that landowner is responsible for maintenance of joint amenities, like roads or water systems, while farmer maintains what he or she solely uses. Shared maintenance costs are often utilized as well, where enumerated expenses are built into the rent. Lessee might require certain supplies to carry out maintenance duties, so shared costs as to labor and equipment makes sense here as well. Improvements As noted above, improvements generally deal with permanent additions to the land. Accordingly, if it’s likely the land you’re leasing will need accessory structures, it’s especially important to understand how these provisions work. Generally, if the lease is silent on improvements, they belong to the landowner. Meaning the new pole barn or incubator put in place by the farmer doesn’t belong to him or her unless the lease says otherwise. That’s because, historically, these expansive improvements (think ventilation or heating systems, roofing, sewage, or water supply) inured to the land. So, it’s a good idea to think through what additional structures you may need on the property and talk to the landowner up front about it. If your lease is long enough, it may be worth requesting that certain capital improvements be allocated to you, if you’re able to recoup those dollars or depreciate the improvements as an asset. The landowner may also be open to financing the development on the frontend, up to a certain percentage or dollar value, through a tenant allowance, so it might be worth the ask. Either way, the lessee should include in the lease that he or she can remove the structure or sell back to the landlord or otherwise. Hopefully, the different purposes and use of these provisions are more clear. If you’re looking for template farm leases in general, a few are available here. Questions about Maintenance and Repair Duties? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

Blog Nov 19, 2021 | Read Time: 3 minutes

Navigating Dangerous Waters: Surface and Groundwater Liability for Agribusinesses

By Kara Groves

Private property rights are a fundamental part of America’s legal landscape. However, the use and maintenance of that property can create conflict between a landowner and his neighbors. This is a particularly big issue for agribusinesses, which are more likely to have chemical, nutrient or waste runoff that may negatively impact those around them. This post covers general water rights of the respective parties and how a landowner might be liable for failing to monitor ground or surface water issues. What are Water Rights? The first step is figuring out what sorts of rights you and your neighbors have and what those terms mean. This article generally covers ground and surface water issues. Ground water in this context refers to naturally occurring water underground in Florida, like that pumped for well water, which has been contaminated or damaged in some way. Surface water is related more to rainfall or overflow generally from one property to another. Surface Water Rights Liability for these water issues usually arise in very different scenarios. Generally speaking, surface water drainage and runoff problems end up in a courtroom when neighboring properties are at different elevations and some structure is created that causes water to overflow. See generally, Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So.2d 959, 963 (Fla. 1989). For farmers and agribusinesses, surface water issues are also likely to occur because of improper management of waste or chemicals that get mixed into stormwater runoff. Thankfully for the agriculture industry, Florida follows what’s called the ‘reasonable use’ theory, meaning you’re not strictly liable for a runoff issue. States follow different theories of liability, but Florida’s is considered the middle-ground. It’s a case-by-case standard, meaning that there’s no bright-line rule as to what would incur liability. It also may not matter that your neighbor knew of your activities or was aware that the property sat below an agribusiness. Groundwater Rights Groundwater liability is often seen in agriculture with respect to chemical, heavy metal or other foreign material pollution being deposited into a neighbor’s groundwater. Another common scenario in agriculture is where a neighbor is being deprived of groundwater because the agribusiness either mistakenly believes it has right to the water or is negligently operating in a way that removes it, like with irrigation. Riparian rights, which has to do with ownership and use of streams or lakes, often fall into this latter category as well, where an agribusiness misuses a waterway abutting multiple properties. Groundwater liability is a bit more stringent in Florida. Our unique geography, which allows us to pull drinking water from underwater aquifers, means that an agribusiness can be held liable to the state if it’s not using EPA or FDACS approved chemicals or is using those chemicals in an unauthorized way. Where other states may not be able to use groundwater as drinking water, Florida can, and that means a higher scrutiny for certain discharge activities. While agribusinesses are generally exempt from needing a discharge permit, if you’re concerned that your operation may emit unusually high amounts of contaminants into the ground, it’s best practice to check with the Florida Department of Agriculture and Consumer Services. Damages for Liability An agribusiness can be liable not only to its neighboring landowner, but also to whoever has a right to use the property when the damage occurs. Liability may include having to pay out money for loss of equipment, livestock or crops, for a diminution in value of the real property or its rental value, or being prohibited from doing certain activities. There may also be additional ‘punitive’ damages, if a jury finds the conduct so reckless that punishment at some unknown dollar amount is necessary. There may also be county or local ordinances that provide even stricter standards for drainage and surface water issues, like what type of structures can be erected or how the water may be used, particularly in areas where rainfall is more frequent or water policy a more central concern (like water management districts). To avoid or limit liability, it’s important to understand whether your farming or agribusiness activities may require drainage or other environmental permitting. See generally, stormwater drainage requirements for residential properties in Volusia County here. Questions about Surface or Groundwater Rights? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

A Blog for Agribusiness