Newberry magistrate to issue order after hearing on agritourism permit dispute

A special magistrate for the City of Newberry said he will issue a written order within roughly eight days after a code enforcement hearing over whether structures used for agritourism and forestry on a rural property required city building permits.

The hearing focused on whether several on-site buildings are “nonresidential farm buildings” and therefore exempt from local permitting under Florida law. Rachel Thomas, attorney for the property owner, argued the property appraiser’s agricultural classification and state agritourism and Right-to-Farm provisions preempted the city’s enforcement. The magistrate said he would close the record and issue a decision without another hearing.

The matter matters because it raises whether the city may enforce building- and permitting-related provisions against structures the owner says are used primarily for forestry and complementary agritourism activities, including weddings. If the magistrate finds the structures are protected by state law, the city’s code enforcement action could be limited; if not, the property owner could face city-ordered corrections or permit requirements.

Thomas told the magistrate that, under Florida law, the city cannot determine the “primary intent of the construction of these buildings,” and that authority rests with the property appraiser under Florida Statutes section 193.461. She said the agritourism law and the Right-to-Farm Act treat nonresidential farm buildings used primarily for agricultural purposes as exempt from local regulation. "Under Florida law, the city is unable to determine the primary intent of the construction of these buildings," Thomas said.

The property owner (identified in the record as Mr. Powell) described routine farm uses and occasional event activity. "My equipment's been in that barn since day one," he said, adding that equipment is sometimes moved when events occur and that he uses mats to control oil drips. He also said some buildings are used for storage of equipment and pine straw and that events occur on a limited number of days per year — he estimated about 44 event days in the year mentioned.

City representatives and the magistrate questioned how the agritourism definitions apply when structures may accommodate members of the public. The magistrate said he had reviewed some of the filings and photos and acknowledged he would examine exhibits and statutes before issuing his order. "I am gonna issue an order. We're not gonna have another hearing," the magistrate said, adding he would issue the order within about eight days and that no further memoranda or evidence would be accepted.

During the hearing, participants referenced the property's timeline and jurisdictional changes: the respondent bought the property in 2015; the property was annexed into the City of Newberry in 2017; and the city's comprehensive plan amendment took effect in February 2018. The parties also discussed a barn that appears in social-media-dated photos from Oct. 1, 2016.

The respondent and a witness said Alachua County issued and signed off an electrical permit and informed the owner at the time that no building permit was required because of agricultural use; the owner submitted plans to Newberry for review but the city said the permit process was not completed and a prior permit lapsed. The attorney for the respondent emphasized those facts in arguing that retroactive application of Newberry's land-development regulations would be improper if state law preempted local regulation of nonresidential farm buildings.

The magistrate repeatedly cautioned that his role is to apply the city's code in the enforcement hearing and that some constitutional or broader preemption challenges might be resolved elsewhere. He also said the final order he issues may not give the outcome the respondent prefers, depending on his legal reading. "I'm not gonna ignore [the memorandum of law]," he told the respondent; "I'll dive in and read it word for word before I issue my order."

The hearing record closes with the magistrate stating no additional evidence or filings will be accepted and that the parties will receive his written order in the coming days. The magistrate adjourned the hearing after those remarks.

The record includes arguments over whether agritourism activity and nonresidential farm-building definitions preempt local permitting and whether the property appraiser's agricultural classification controls the question of primary intent. The magistrate's forthcoming order will state his findings and any enforcement outcome.

Votes at a glance: none — the magistrate announced he will issue a written order and did not take any vote or enter a final enforcement decision at the hearing.