Legal and Regulatory Considerations for Agritourism in Pennsylvania

There are several important legal and regulatory considerations when starting an agritourism operation in Pennsylvania, such as zoning, land development and building approvals, liability, accommodating visitors with disabilities and, if you have animals, animal welfare regulations. In this article, we provide an overview of the typical issues an agricultural operator encounters when starting an agritourism operation, or if you would like to expand your operation and add more activities. You should know that additional requirements may apply based on the proposed land use and development. 

Agritourism activities tend to look and sound different than traditional agricultural production activities, which in turn can raise questions and concerns from neighbors and community members. Such concerns can include issues such as traffic, parking, access, safety, hours of operation, lighting, noise, and litter. Regulating land use and development can be challenging for local officials. This is especially true as traditional uses, such as agriculture, change their practices to adapt to market conditions and opportunities. Officials must consider the farmers impacted by the regulations as well as the neighbors and community.

Agricultural operators must be aware of the potential need to comply with several types of regulations and possibly obtain approvals/permits. Regulations may not permit the proposed use, or may require engineered plans, as well as improvements to the site and structure(s) as applicable. This could include items such as improved access roads and parking areas, stormwater/erosion and sedimentation plans and improvements, restrooms, and lighting. The application of local land use regulations will be dependent on the type of project proposed and related site features. Be aware that the degree to which local municipalities have enacted land use regulations varies, so what may be enacted and enforced in one local municipality will not necessarily mirror what is required and enforced in another.

This article is intended to guide you in conducting research for starting or diversifying an agritourism operation. If researching the regulations yourself, be sure that you understand their application to your project. While viewing the regulations will help you in determining the potential feasibility and requirements for your project, be careful to proceed only after getting confirmation from the applicable officials. When initially giving thought to an agritourism project, you may want to consult with a surveyor, planning consultant, engineer, or attorney who is knowledgeable about the local land use and development regulations. Doing so could save you time, and they may also be able to provide cost estimates and/or estimated time frames for project approval.

Outlined below is a list of local, county, and state regulations often applicable to agritourism projects. These regulations will depend on the type of project proposed and related site features. This list of regulations is not meant to be all-inclusive. Depending on the type of agritourism business and the goods and services provided, approval from other agencies may be required, for example, from the Pennsylvania Liquor Control Board or health agencies/departments. The list of potential applicable regulations also provides information on whom to contact for specific information about the corresponding regulation and if and how it would apply to your proposal. Note that the title and responsibilities of local regulatory officials also may vary, and the list includes those most common. Many local governments list their officials and regulations online. 

Zoning

Zoning laws regulate most aspects of land use. These laws have the potential to affect every business and most activities. Zoning is a system that regulates the type and intensity of land use development that occurs within a community. It is the division of a municipality into districts or zones in which certain activities are permitted and others are prohibited. Zoning allows a local government to regulate land uses within its boundaries and set standards for the development of land parcels. As such, agritourism operators should be aware that a zoning ordinance may not permit their proposed land use, or if allowed, may affect how their operation manages parking, hours of operation, traffic, noise, lighting, structures, and more.

Zoning typically establishes separate zoning districts for residential, commercial, industrial, and agricultural uses. Of these district designations, the purposes of agricultural districts can be the most varied. These can range from the protection of agricultural practices and soils to reducing the impact of agricultural activities on other properties. In some cases, agricultural districts serve as a "catch-all" and include land uses that would not specifically fit in any other district (e.g., kennels, landfills). Zoning is administered through a zoning officer. This officer will determine if the proposed use is, or is not, permitted. This determination will be based upon the zoning ordinance in effect and the location of the proposed use. A good first step when considering an agritourism-related activity is to check and see if a zoning ordinance is in effect for your municipality (local or county). If there is, find out if your proposed land use is allowed in the area in which it is being considered.

The level at which zoning is enacted and enforced is dependent on the state's enabling legislation. In Pennsylvania, local municipalities are given this authority through the Pennsylvania Municipalities Planning Code. However, if a local municipality chooses not to enact a zoning ordinance, the county then has the authority to do so if it desires. If neither adopts an ordinance, the municipality is not covered by zoning. To find the applicable zoning laws, operators can request a copy of their local ordinance from the local or county zoning office or planning board as applicable. Due to the unique nature of agritourism, zoning laws may not specifically address certain aspects of all activities. Under Article VI Section 617.2 of the Pennsylvania Municipalities Planning Code, violating a zoning ordinance could result in fines up to $500, plus fees. In some situations, it may be clear that the planned agritourism activity is not permitted under the local zoning laws (The zoning officer has the authority to determine if a use is or is not permitted.). If the use is not permitted, the operator could consider a conditional use permit, special exception, variance, or non-conforming use. These permits/approvals grant an exception or waiver to the landowner to use the property in a way that does not conform with the zoning ordinance.

 Contact(s):

• Local Municipality – Zoning Officer/Planning Commission
• County – County Zoning/Planning Office

Subdivision and Land Development

Subdivision and land development regulations control the layout and design of subdivisions and certain types of development. Subdivision involves the division of land into parcels, (for transfer or lease) and land development involves the improvement of a lot(s) for a variety of purposes, including a group of two or more residential or nonresidential buildings, or a single nonresidential building.

In Pennsylvania, there are some exemptions for agriculture in subdivision and land development regulations. Regarding subdivisions, the subdivision by lease of land for agricultural purposes of more than 10 acres is exempt from requiring approval (provided the subdivision does not involve any new street, easement of access, or any residential dwelling). Regarding land development, there may be provisions for an exemption for the addition of an accessory building, including farm buildings on a lot or lots subordinate to an existing principal building.

A Subdivision and Land Development Ordinance (SALDO) is administered by a planning commission or the governing body. As with zoning, local municipalities are given authority for SALDO regulation through the Pennsylvania Municipalities Planning Code. However, if a local municipality chooses not to enact such an ordinance, the county then has the authority to do so if it desires. If neither adopts an ordinance, the municipality is not covered by subdivision and land development regulations.

Contact(s):

• Local Municipality – Planning Commission, Municipal Secretary
• County – County Planning Office

Pennsylvania Agritourism Activity Protection Act 27

The Pennsylvania Agritourism Activity Protection Act came into effect on August 29, 2021. One of the most important aspects of the law is that it codifies a legal definition of agritourism in Pennsylvania law where one did not exist before. Generally, legal definitions like this may become a standard relied upon in other contexts such as the interpretation of zoning ordinances. It remains to be seen if that happens on a township-by-township basis going forward but anything that could create uniformity across municipalities will make it easier for farmers and landowners to understand their legal obligations. It is important to note that Pennsylvania's Act is different from other state agritourism liability statutes in a few significant ways. Unlike every other state statute, Pennsylvania specifically excludes liability protections for injuries that occur during weddings or concerts. In addition, Pennsylvania's Act will not apply to injuries sustained during overnight stays or due to food and beverage service.

For liability protection to apply under this statute, all four essential elements of the law must be met. Agritourism operators interested in the liability protections offered by Pennsylvania's Agritourism Activity Protection Act should review each of the four essential requirements, as described below.

1. The injury must occur while the visitor is participating in an activity that meets the definition of agritourism in the law.

The Agritourism Activity Protection Act defines "agritourism activity" as:

"A farm-related tourism or farm-related entertainment activity that takes place on agricultural land and allows members of the general public, whether or not for a fee, to tour, explore, observe, learn about, participate in or be entertained by an aspect of agricultural production, harvesting, husbandry or rural lifestyle that occurs on the farm."

2. The agritourism activity must occur on land which is used for a so-called "normal agricultural operation" as defined in Pennsylvania's Right to Farm Law.

Pennsylvania's Right to Farm Law defines "normal agricultural operation" as:

"The activities, practices, equipment, and procedures that farmers adopt, use or engage in the production and preparation for market of poultry, livestock, and their products and in the production, harvesting, and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities and is:

1. not less than ten contiguous acres in area; or
2. less than ten contiguous acres in area but has an anticipated yearly gross income of at least $10,000."

3. The required warning signs must be posted on the property at the required locations.

The Pennsylvania statute requires operators to post signs at every entrance or at all activity locations. The signs should be placed in a way so that they are easily observable by the participants of the agritourism activity. The statute specifically requires the sign to be “three feet by two feet" and must include the exact language as seen below:

"Warning: Read your written agreement or the back of your ticket. Under Pennsylvania law, except for limited circumstances, an agritourism activity provider is not liable for any injury to or death of a participant resulting from an agritourism activity. Do not participate in the activity if you do not wish to waive liability."

4. The required acknowledgment agreement of limited civil liability must be signed by the visitor before engaging in the agritourism activity.

Agritourism operators who wish to benefit from the Pennsylvania statute, must have visitors sign a written agreement prior to their participation in the activity. This written agreement must be typed in at least 10-point bold font, or larger.

"Agreement and Warning: I understand and acknowledge that, except for limited circumstances listed below, an agritourism activity provider is not liable for any injury to or death of a participant resulting from an agritourism activity. I understand that I have accepted all risk of injury, death, property damage and other loss that may result from an agritourism activity. I understand that an agritourism activity provider is not protected from liability if the provider:

1. Performs an act in a grossly negligent manner and causes injury or damages to a participant.
2. Purposefully causes a participant's injury.
3. Acts or fails to act in a way that constitutes criminal conduct.
4. Recklessly fails to warn or guard against a dangerous condition that causes injury or damages to a participant. A dangerous condition is a condition that creates an imminent and substantial risk of injury or damages to a participant."

Alternatively, the statute also allows the agritourism operator to print the "Agreement and Warning" language on a ticket. This option would allow participants to purchase a ticket they would use to participate in the activity. The statute does not include requirements for the ticket to be a certain size or shape, however, the statute does say that the ticket must be “required for access…" to the activity. In other words, an agritourism operator must devise some process that requires participants to receive the ticket and then present the ticket before they participate. This process will look different for every operation and may require adjustments to an operator's current business procedures. Guests who do not agree to release the agritourism operator from liability as stated on the ticket or written agreement, should not participate in the activity. 

Application of the Act to Minors

The law states that a parent or guardian must sign the acknowledgment agreement on behalf of a minor or care-dependent person. Generally, children do not have legal capacity to sign liability waivers and a waiver signed by a child may be voidable.

Pennsylvania case law suggests that waivers signed by a parent on behalf of a child are unlikely to waive the child's potential claim in this state. A parent's signed waiver would, however, waive the parent's claim for compensation relating to their child.

Additional Information

Agritourism operators who are interested in gaining the benefits from Pennsylvania's statute should carefully review the statute language and should consult an attorney to determine if this law will apply to their operation. The exact language of the Agritourism Activity Protection Act can be found online from the Pennsylvania General Assembly.

For additional information, operators may also review the available guidance (with an option to purchase signs with the required statute language) offered by the Pennsylvania Farm Bureau. Pennsylvania Farm Bureau, along with affiliated groups and advocates have been very instrumental in pushing the Agritourism Activity Protection Act forward in Pennsylvania.

Contact(s):

• Pennsylvania Farm Bureau (for purchase of signage and wristbands)

Hayride Attractions

Before beginning operations, the owner of a hayride must secure approval from the Pennsylvania Department of Agriculture for both the wagon/trailer and the tow vehicle. This approval requires verification of compliance with design, operational, maintenance, inspection, and testing standards, and meeting the criteria on the Department's hayride approval checklist. This approval is granted annually and is specific to each site. On January 28, 2023, the Pennsylvania Department of Agriculture's (PDA) Bureau of Ride and Measurement Standards published an order (53 Pa.B. 616) in the Pennsylvania Bulletin allowing hayride operators, according to the terms of the order, to register a hayride attraction under 7 Pa. Code § 139.4 without submitting written verification from a registered engineer as generally required under 7 Pa. Code § 139.4(d)(7)(ii)." 

Contact(s): ra-amusementrides@pa.gov

Building and Construction

In Pennsylvania, most building projects require a building permit under the Pennsylvania Uniform Construction Code. There are some exemptions for agricultural buildings, but they are based on agricultural storage or housing livestock. Pennsylvania's statewide building code is called Uniform Construction Code (UCC) and is assigned its own code enforcement staff or uses a third-party agency contracted for code enforcement. The UCC adopted the International Building Code 2015 as its official code.

If the municipality has no code enforcement assigned, Pennsylvania's Department of Labor and Industry is responsible for code enforcement. Over 90% of the 2,562 municipalities in Pennsylvania have adopted the UCC. In those cases where the municipality has opted out of the UCC, the Pennsylvania Department of Labor and Industry is the building authority. Typically, the township or the city is responsible for code enforcement and permit applications. It is best to work with the building inspector from the start of your project, as this will save you from making costly mistakes. The inspector will often offer valuable advice as you begin your new endeavor.

Changing the use of an existing building (e.g., residential to food service):

When changing the use of an existing building, a permit application must be submitted and approved, an inspection must take place, and a new Certificate of Occupancy must be awarded for the intended facility use. Changes being made to an existing structure should be listed on the permit application, along with facility aims. For commercial use, compliance with the  American Disabilities Act is typically required.

You should be aware of Pennsylvania's fire regulations to understand your occupancy code for your permit application, and the associated requirements, as they can have a significant impact on the cost of your project.

New construction:

For new construction, the requirements above also apply, but you will also need to consider utility easements, soil conditions, sensitive environments, architectural review requirements, and utility availability. Typically, an elevation drawing of the proposed facility is required with the permit application.

Agricultural operations have a permit exemption in the state of Pennsylvania for buildings that are used for certain types of storage and operations (e.g., maple sap processing). The permit exemption form and specific regulations can be found on the Central Keystone Council of Government website. For structures that will not stand for more than 30 days, no permit is required.

Contact(s): Local Municipality – Building Permit/Code Enforcement Officer, Municipal Secretary

Highway Occupancy

A new access road or the use of an existing access road for expanded use may require a permit before accessing a public road. For a state highway, permits and related requirements are processed through the Pennsylvania Department of Transportation (PennDOT) Permit Office.

For local municipal highways, permits would be issued through a locally appointed officer. The applicable individual can be found by contacting your local municipal office.

Contact(s):

• Local Municipality – Building Permit/Zoning Officer, Municipal Secretary
• Penn DOT Highway Occupancy Permit Officers

Promotional and Directional Signs

On- and off-premise signs may require a permit from the local municipality. Items such as size, height, illumination, and visibility are items that are normally reviewed. For signs that are near state highways, PennDOT permitting may be applicable. Information can be obtained through your Regional PennDOT Office.

Contact(s):

• Local Municipality – Building Permit/Zoning Officer
• PennDOT Regional Offices

Sewage

For certain types and sizes of buildings and activities, sewage disposal will need to be addressed. The specific type of disposal system will depend on the availability of public sewer, the type of structure or activity, and local sewage requirements. The applicable information can be found by contacting the sewage enforcement officer.

Contact(s):

• Local Municipality – Sewage Enforcement Officer

Erosion and Sediment Control

If earth disturbance is part of the preparation of an agritourism development or activity, a Chapter 102 Erosion and Sediment Control plan and/or permit may be required. The agency responsible for these permits may vary depending on the county. In some counties, the County Conservation District is the designated permitting agency. In other counties, permitting is through the PA Department of Environmental Resources, Waterways and Wetlands Program.

Contact(s):

• County Conservation District – Erosion & Sedimentation Technician
• State - PA Department of Environmental Resources, Waterways and Wetlands Program

Water Obstructions and Encroachments

A Chapter 105 General Permit is required for work done in wetlands or crossing or encroaching upon a stream, river, or other waterway. The agency responsible for these permits may vary depending on the county. In some counties, the County Conservation District is the designated permitting agency. In other counties, permitting is through the PA Department of Environmental Resources, Waterways and Wetlands Program.

Contact(s):

• County Conservation District – Erosion & Sedimentation Technician
• State - PA Department of Environmental Resources, Waterways and Wetlands Program

Liability and Insurance

Like any business, agritourism operations have risks, but with the added dangers inherent in farm or ranch activities. Agritourism participants with no farm familiarity could unknowingly act in a manner that could cause harm to themselves or others. The operator should make note of any equipment or animals that could be hazardous to children or the uninformed. In addition, the operator should make note of other potential risks, including the terrain, paths and walkways, zoonotic diseases, weather, and parking. Common-sense actions may address some of these risks. For example, an operator should purchase a first aid kit, put up 'do not touch' signs, use rock salt for ice or hay for mud, and keep dangerous animals away from guests. Agritourism participants are owed the highest duty of care, and, as such, landowners must inspect their property, must warn of any dangerous conditions, and must remedy these conditions.

Even though Pennsylvania now has liability protection legislation (see Pennsylvania Agritourism Activity Protection Act 27), agritourism operators should still consider both liability insurance and business entity structure. An operator should first check to see if liability insurance is required by their municipality. The operator should also consider the cost: comparing how much protection is needed and how much the operator can afford to spend. Not all insurance companies will cover the varied activities offered in agritourism operations. The operator must make sure that the insurance company understands all aspects of the proposed operation.

Even with insurance, an operator should consider the most appropriate business entity structure for liability protection. While many farms operate as sole proprietorships, that type of entity does not provide liability protection. Operators interested in liability protection should research entities like corporations or Limited Liability Companies (LLC). When creating these types of entities, the business owner, or agritourism operator, must decide which assets to move into the corporation or LLC. Entity creation allows the operator to choose to keep personal assets out of the agritourism operation. In this case, if an injured participant brings a lawsuit against the agritourism operation, the participant would only be able to recover from the assets within the business entity. If the operator kept personal assets separate from the business and complied with entity requirements, their personal assets would be protected. Depending on the type of entity created, the operator might also benefit from transferability or tax benefits.

Contact(s):

• Local insurance agent
• Attorney

Accommodating Visitors with Disabilities

If an operator holds public events, they must ensure that visitors with disabilities have access to these events as well. The type of accommodations needed will depend on the event (for example, accessible walkways, wide paths for wheelchairs, spacious parking spaces designed for visitors with disabilities). For more information, please see the American with Disabilities Act (ADA).

Contact(s): www.ada.gov

Animal Laws

Petting zoos are a great way to educate the public about raising farm animals. Therefore, it is important to set an example of appropriate animal husbandry. Animal health and safety, besides visitors' safety, are of paramount importance. All agritourism operations with animals must adhere to the Animal Welfare Act.  In addition, Pennsylvania passed a comprehensive animal protection law (Act 10) in 2017.

Every operator should be familiar with the Licensing and Registration Under the Animal Welfare Act. For example, if you keep eight or fewer domesticated farm-type animals for exhibition, then you are likely to be exempt from licensing.

Pennsylvania also requires operators to comply with the state's Animal Exhibition Sanitation law. This law applies to operations that allow physical contact between humans and animals, not just operations characterized as petting zoos. Operators in Pennsylvania must 1) promote awareness of the risk of zoonotic disease and 2) provide handwashing facilities in a convenient location with signage encouraging handwashing. Keeping animals and having visitors interact with them adds new risks to your operations. Inform your insurance agent if you are planning to add any animal interactions.  Describe your exact plan to the insurance agent and request an updated quote and acquire written confirmation that your liability insurance coverage is adequate. Close encounters between animals and humans introduces the risk of zoonotic diseases. Salmonella, Cryptosporidia, Listeria, and E. coli O157:H7 or Shiga toxin-producing E. coli (also known as pathogenic E. coli) are some of the important pathogens. For more information, please see Penn State Extension's article on Reducing the Risks of Pathogenic E. Coli Infections.

Selling Food

Farm operations providing food to visitors should contact the Pennsylvania Department of Agriculture (PDA) Bureau of Food Safety to learn about regulatory requirements they may be subject to under the law and the options for meeting these regulations. According to the PDA Bureau of Food Safety, using a "residential style kitchen" to prepare food can fall under a retail food establishment or as a Limited Food Establishment, depending on how a product will be sold. 

As a Limited Food Establishment where food will be sold for distribution, the types of food produced on the property are 'limited' to foods that do not require temperature control for safety. The products must be shelf-stable and not utilize specific procedures such as acidification. Under the Limited Food Establishment regulation, the food sanitarian will discuss the foods that can be produced in the home and offered for sale. They will inspect the kitchen to discuss any concerns identified.

Offering meals/entrees and foods requiring temperature control for safety (TCS) requires a retail food establishment license. The designated kitchen must meet the Pennsylvania Food Code for commercial applications. 

Contact(s): PDA Department – Limited Food Establishments

Summary

Agritourism activities can provide farmers with opportunities for new revenue streams. As with any new business venture, planning and researching the regulations and requirements are critical in determining the feasibility of your agritourism activities. This guide serves as a starting point in conducting that research. Additional requirements may apply based on the details of the proposed land use and development.

Legal disclaimer

Penn State Extension does not provide legal advice, nor is its work intended to be a substitute for such advice and counsel. As such, the materials and information provided here do not constitute legal advice and are for informational purposes only. While efforts are made to maintain and update these resources, no warranty or other guarantee is made regarding the timeliness or accuracy of any materials or information provided. If you have any additional questions regarding zoning and liability issues, please contact the Center for Agricultural and Shale Law at Penn State: AgLawCenter@psu.edu. If you have any questions regarding planning, contact Neal Fogel, nef3@psu.edu. If you have additional questions about food safety, please contact Richard Kralj, rak15@psu.edu.