Kansas Attorney General Opinion 2016-010

June 9, 2016
ATTORNEY GENERAL OPINION NO. 2016-10
The Honorable Sharon Schwartz
State Representative, 106 th District
2051 20th Road
Washington, KS 66968
Re: 	Cities 	and 	Municipalities—Planning 	and 	Zoning—Agricultural 	Land
Exempted, Exception
Counties and County Officers—Planning and Zoning—Zoning Regulations
Inapplicable to Existing Structures or Agricultural Land; Exceptions
Synopsis: 	A county may not apply zoning regulations to a beef cattle feedyard or
dairy, or to any structure on that property used for such purposes, such as
a feed mill, scale house, office, or machine shop. A county may not
require buildings used solely for agricultural purposes to comply with
construction codes adopted by the county government. A county may
require a person desiring to construct an agricultural building to receive a
prior 	determination 	that 	the 	building 	is 	exempt 	from 	county 	zoning
regulations and building codes. Cited herein: K.S.A. 2015 Supp 2-3202;
K.S.A. 12-741; 12-742; 12-758; K.S.A. 2015 Supp. 19-101a; K.S.A. 19-
2921.
* 	* 	*
Dear Representative Schwartz:
As State Representative for the 106 th District, you ask our opinion on two questions
concerning the authority of counties to zone beef cattle feedyards and dairy facilities,
including structures located on those properties, and require agricultural buildings to
comply with local building codes. First, may a county zone a beef cattle feedyard or
dairy, and any structure on that property used for such purposes, such as a feed mill,

The Honorable Sharon Schwartz
Page 2
scale house, office, or machine shop? Second, may a county require agricultural
buildings 	to comply with construction 	codes adopted by the county government?
Because both questions involve similar analysis, we will address them together.
A county generally has home rule authority to “perform all powers of local legislation
and administration it deems appropriate,” subject to legislative enactments that restrict
such authority.1 A county is also generally empowered to enact planning and zoning
laws and regulations “for the protection of public health, safety and welfare.”2 “Zoning” is
defined as “the regulation or restriction of the location and uses of buildings and uses of
land.” 3
In your letter, you suggest that the answer to your questions is no, based upon the
following statutory provisions:
Except for flood plain regulations in areas designated as a flood plain,
regulations adopted by a city . . . or a county pursuant to [K.S.A. 12-741 et
seq.] shall not apply to the use of land for agricultural purposes, nor for the
erection or maintenance of buildings thereon for such purposes so long as
such 	land 	and 	buildings 	are 	used 	for 	agricultural 	purposes 	and 	not
otherwise.4
Except for flood plain regulations in areas designated as a flood plain,
regulations adopted [by a county] shall not apply to the use of land for
agricultural purposes, nor for the erection or maintenance of buildings
thereon for such purposes so long as such land and buildings erected
thereon are used for agricultural purposes and not otherwise. 5
The answers to your questions, therefore, will depend on whether a particular building
or plot of land is actually used for “agricultural purposes and not otherwise.” This is a
case-specific inquiry that depends on the facts of a particular case. However, Kansas
courts have generally read the term “agricultural purposes” broadly, holding that such
activities as raising canaries; 6 operating a wildlife hunting preserve; 7 blasting rock to
excavate a pond for irrigation purposes; 8 operating a landing field for aircraft used in a
farming operation; 9 and constructing a farmer’s personal residence on agricultural
property10 were all agricultural purposes based upon the facts of each case.11
1 K.S.A. 2015 Supp. 19-101a(a).
2 K.S.A. 12-741.
3 K.S.A. 12-742(a)(10).
4 K.S.A. 12-758(b) (emphasis added).
5 K.S.A. 19-2921 (emphasis added).
6 Board of County Com’rs v. Brown, 183 Kan. 19 (1958).
7 Corbet v. Board of Shawnee County Com’rs, 14 Kan. App. 2d 123 (1989).
8 Fields v. Anderson Cattle Company, 193 Kan. 558 (1964).
9 Miami Co. v. Svoboda, 264 Kan. 204 (1998).
10 Blauvelt v. Board of County Com’rs of Leavenworth Co., 227 Kan. 110 (1980).
11 But see Seward County ex rel. Seward County Bd. of Com’rs v. Navarro, 35 Kan. App. 2d 744 (2006)
(training horses for racing was not an agricultural use) and Weber v. Board of County Com’rs of Franklin

The Honorable Sharon Schwartz
Page 3
Turning to your first question, the Kansas Supreme Court has held that “the feeding of
livestock for market is an agricultural pursuit and that the structures used in connection
therewith are for agricultural purposes.” 12 We believe a court would also conclude that a
dairy is an agricultural pursuit, and that structures used in connection therewith are for
agricultural purposes. Indeed, the Kansas Court of Appeals has suggested that the
definition of “agricultural activity” in K.S.A. 2015 Supp. 2-3202(a), which includes the
growing and raising of dairy products and is part of an act designed to protect against
nuisance suits, “expresses the same purpose as that exempting agricultural uses from
county zoning authority.”13
Therefore, assuming that no flood plain regulations apply to the beef cattle feedyard,
dairy, or structure in question, it is our opinion that the plain language of K.S.A. 12-
758(b) and 19-2921 prohibit a county from imposing zoning regulations upon that land
or structure. “The legislature is presumed to have expressed its intent through the
language of the statutory scheme, and when a statute is plain and unambiguous, the
court 	must 	give 	effect 	to 	the 	legislative 	intention 	as 	expressed 	in 	the 	statutory
language.” 14
With respect to your second question, we believe that a county is not authorized to
require compliance with county-adopted building or construction codes during the
construction of an agricultural building so long as the land and the building being built
thereon are used for agricultural purposes and not otherwise. It is our opinion that
K.S.A. 12-758(b) and 19-2921 foreclose the ability of a county to impose such building
codes under those circumstances.
You also ask whether a county may require a landowner to obtain a building permit or
recognition of the agricultural use exception prior to the landowner constructing a
building to be used for agricultural purposes on agricultural land. We assume that
“permit” refers to a process by which the person desiring to construct a building applies
to the county and provides building plans and other information necessary for the
county to determine whether the building will comply with zoning, building codes, and
other local regulations.
We found no statutory provisions that directly answer this question. However, the
general rule is that a county is authorized to adopt and enforce zoning and building
regulations, unless the land or structure in question is exempt from those county
regulations 	because 	it 	is 	used 	solely 	for 	agricultural 	purposes. 	In 	addition, 	the
agricultural use exemption does not apply to county flood plain regulations.
Co., 20 Kan. App. 2d 152 (1994) (raising and keeping greyhounds for racing or sale was not an
agricultural use).
12 Fields v. Anderson Cattle Co., 193 Kan. 558, 565 (1964).
13 Weber at 156-57.
14 Bergstrom v. Spears Mfg. Co., 289 Kan. 605, 607 (2009).

The Honorable Sharon Schwartz
Page 4
It would appear, then, that a county must have some way of determining whether a
particular structure falls within the county’s regulatory authority, or whether the structure
is entirely exempt. Generally, a county is empowered to determine its own affairs,
subject to acts of the legislature.15
It is our opinion that a county could lawfully require a landowner to obtain prior
determination of a proposed structure’s exemption from county regulations, so long as
the purpose of the prior determination is simply to assess whether the proposed
structure qualifies for the agricultural purposes exemption. We believe that such a
requirement would not violate the intent of K.S.A. 12-758(b) and 19-2921 because it
would not have the effect of improperly imposing zoning regulations on an exempt
property; rather, it would serve to clarify in advance whether county building codes and
zoning regulations would need to be followed during construction. However, we believe
K.S.A. 12-758(b) and 19-2921 prohibit a county from requiring a landowner to receive
county approval of construction plans or obtain a building permit once it is determined
that a structure falls within the agricultural purposes exemption.
Sincerely,
Derek Schmidt
Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF:sb
15 K.S.A. 2015 Supp. 19-101a.