Opinion Number
10-071
Tax Type
General Provisions
Description
Infrequent use of a "farm building or structure" to host a concert, dance or other social gathering does not constitute a change in occupancy classification.
Topic
Clarification
Classification
Exemptions
Prohibited Activity
Date Issued
08-23-2010
August 23, 2010

Kevin J. Burke, Esquire
Fauquier County Attorney
10 Hotel Street, Suite 206
Warrenton, Virginia 20186

Dear Mr. Burke:

I am responding to your request for an official advisory opinion in accordance with section 2.2505 of the Code of Virginia.

Issue Presented


You ask whether the use of a "farm building or structure" for the purposes of hosting events like concerts, dances and wedding receptions constitutes a change in the occupancy classification of the structure sufficient to require the structure's compliance with the Uniform Statewide Building Code ("building code") and to require the owner of such a structures to obtain an occupancy permit for such events.

Response


It is my opinion that the infrequent use of a "farm building or structure" to host a concert, dance or other social gathering does not constitute a change in occupancy classification and, therefore, does not require the owner to obtain an occupancy permit for the new uses.

Background


You note that owners of farm buildings or structures, which are exempt from the building code, periodically use those buildings for non-agricultural uses. You relate that examples of the new, nonagricultural uses include the hosting of concerts, wedding receptions and dances. You request advice on the issue of whether the owner of a structure defined. as a "farm building or structure" who wishes to occasionally use his property for non-agricultural uses must obtain an occupancy permit for the new use.

Applicable Law and Discussion


The building code generally requires the owner of a building to obtain an occupancy permit when a building undergoes a "change of occupancy."1 Farm buildings and structures are exempt from the requirements and standards embodied in the building code 2 For the purposes of the building code, "farm building or structure" is defined as a:
    • [B]uilding or structure not used for residential purposes, located on property where farming operations take place, and used primarily for any of the following uses or combination thereof:
    • 1. Storage, handling, production, display, sampling or sale of agricultural, horticultural, floricultural or silvicultural products produced in the farm;
    • 2. Sheltering, raising, handling, processing or sale of agricultural animals or agricultural animal products;
    • 3. Business or office uses relating to the farm operations;
    • 4. Use of farm machinery or equipment or maintenance or storage of vehicles, machinery or equipment on the farm;
    • 5. Storage or use of supplies and materials used on the farm; or
    • 6. Implementation of best management practices associated with farm operations. 3

So long as a building (1) is not used for residential purposes, (2) is located on property where farming operations take place and (3) is used primarily in one of the uses provided, the requirements of the building code do not apply:4

The General Assembly's reliance on the term "primarily" indicates that the General Assembly contemplated that some non-specified uses would be made of these buildings. The answer to your question thus ultimately turns on the circumstances of each individual case. Permanent changes in the use of a structure - for example, the remodeling of a barn into a residence - would call for a new occupancy permit: for the structure.5 An occasional use, such as using a barn several times per year for a wedding reception, would not alter the fact that the barn remains "primarily" devoted to a specified farm use and, therefore, would not destroy the exempt status of the barn as a "farm building or structure."6
Conclusion


Accordingly, it is my opinion that the occasional use of a "farm building or structure" to host a concert, dance or other social gathering does not constitute a change in occupancy classification and, therefore, does not require the owner to obtain an occupancy permit for the new use.

  • With kindest regards, I am
                    • Very truly yours,

                      Kenneth T. Cuccinelli, II
                      Attorney General
1 13 VA. ADMIN. CODE 5-63-30(C) (2010).
2 VA. CODE ANN. § 36-99(B) (2010). This is true for all farm buildings and structures except for those that are used as a restaurant as defined in VA. CODE ANN. § 35.1-1 (2010) and any farm building located "within a flood plain or in a mudslide-prone area. Id Farm buildings located within flood plains are "subject to flood-proofing regulations or mudslide regulations, as applicable." Id
3 Section 36-9? (2010) (emphasis added).
4. Id.
5 When a farm building or structure falls outside the scope of the exemption, either because it is no longer primarily used for one of the specified purposes, because it is used for residential purposes, or is no longer located on property where farming operations take place, the strictures of 13 VA. ADMIN. CODE 5-63-30(C) (2010) would require the owner to obtain a new occupancy permit.
6 This conclusion draws further strength from the fact that the General Assembly in 2000 was made aware of the fact that farm buildings are employed for purposes other than farm use and that these alternative purposes presented safety concerns. See Report of the Board of Housing and Community Development, Virginia Farm Buildings and Structures and the Uniform Statewide Building Code, House Doe. No. 28 (2000). Legislative inaction in the wake of this report supports the understanding that these farm buildings remain exempt from the requirements of the building code so long as they are used primarily for the specified purposes.




Attorney General's Opinion

Last Updated 09/16/2014 15:39