Commentary: What Proper Process Requires – When the Agritourism Regulation Returns

In my previous article, I documented how an agritourism regulation nearly bypassed public deliberation last summer. The County Attorney recommended the regulation, the Board scheduled a public hearing, and when questions arose about implementation, the recommendation was to move the discussion behind closed doors rather than answer publicly.

That regulation remains tabled. When it returns, citizens need to understand what the proper process requires and be prepared to demand it.

The Public Hearing Was Never Closed

Here’s the critical procedural point: Virginia Code § 15.2-2204 requires a public hearing before adopting any ordinance or text amendment. The July 15, 2025, hearing was interrupted and tabled; it was never formally closed. The motion to table was explicitly “so we could get it solid.”

Any future Board action on this regulation requires a new public hearing with proper notice. The matter cannot simply be un-tabled and voted on as “unfinished business.”

That new hearing process should include:

1. Public education period: What specific problem is being addressed? Is there evidence of substantial impact from agritourism activities in Warren County? What has been the county’s experience under the current ordinance, which already includes basic requirements for lighting, accessibility for people with disabilities, health department compliance, and permit compliance?

The coversheet for the July 15 hearing provided only a description of the legal mechanism-how the regulation would work-but no explanation of why it’s needed. Citizens deserve to know: What problem are we solving? Are there documented instances of agritourism activities causing the substantial impacts that would justify additional regulation under Virginia Code § 15.2-2288.6?

2. Written legal analysis: What authority does Warren County have under § 15.2-2288.6? What does “substantial impact” mean legally? How have Virginia courts interpreted this language?

This analysis must be public-it’s the legal foundation for any decision to expand regulation. Board members and citizens should be able to research the statute, examine how it’s been applied in other contexts, and ask informed questions about whether additional regulation is necessary and legally sound. Legal analysis about proposed ordinances is not attorney-client privileged communication that can be hidden in closed session-it’s the public policy foundation for legislation.

3. Objective standards: If additional regulation is warranted, what measurable criteria will be applied? How will the Zoning Administrator determine whether an agritourism activity has “substantial impact”?

The proposed text amendment gave the Zoning Administrator discretion to make this determination, but provided no objective standards. This is precisely what a farmer who spoke at the public hearing characterized as “arbitrary and capricious” during the July 15 hearing. If Warren County proceeds with regulation, the criteria must be developed through a public process, not left to subjective judgment.

4. Agricultural community input: Farmers whose livelihoods are affected deserve meaningful participation in developing any regulatory framework. This means workshops where farmers can explain how different regulatory approaches would affect their operations and their willingness to invest in agritourism.

The state legislature granted farmers broad agritourism rights because agritourism is a multi-billion-dollar industry in Virginia. Any county regulation that adds barriers to exercising those rights should be developed with, not imposed upon, the agricultural community.

How the Transparency Policy Would Have Helped

The Legal Services Transparency and Review Policy that the Board repealed on January 8, 2026, would have addressed the agritourism situation at multiple points in the process.

Written legal analysis requirement: The policy required written legal work product for proposed ordinances. This would have forced public examination of the legal basis for expanding regulation. Is there actually a “loophole” that creates county vulnerability, or is that the County Attorney’s opinion? It was passed in Shenandoah County, so it should be good for Warren, too, right? What does Virginia law actually authorize? What precedents exist?

With written analysis, Board members could have researched the statute independently. Citizens could have consulted their own legal resources. The agricultural community could have engaged legal counsel to review the county’s position. Public deliberation could have been informed by legal reasoning rather than dependent on what the County Attorney chose to share in closed session.

The distinction between confidential legal advice and public policy analysis is critical. At the January 8, 2026, meeting, the County Attorney argued that Virginia Rules of Professional Conduct prohibit revealing “information gained in the professional relationship, the disclosure of which would be embarrassing or would likely be detrimental to the client.”

The Rules of Professional Conduct do not supersede FOIA; Virginia Code § 54.1-3915 explicitly prohibits ethics rules that are inconsistent with the statute. Attorney ethics rules cannot serve as a pre-filter to determine which information the public can hear about proposed legislation. FOIA establishes the framework for when closed sessions are permitted, and the “specific legal matters” exemption applies only to specific legal transactions or disputes, not general policy discussions about proposed ordinances.

Statutory interpretation about what authority a county has to regulate agritourism is not confidential attorney-client communication-it’s the legal foundation for public policy. If the legal basis for either the existing or proposed agritourism ordinance is “embarrassing” or reveals that the county’s position is weak or could be detrimental, that’s exactly the information citizens need to participate meaningfully in deciding whether to adopt the ordinance.

The transparency policy would have clarified this distinction: legal advice about specific transactions or disputes can be confidential, but legal analysis that forms the basis for proposed legislation must be public. This prevents the County Attorney from using professional conduct rules to override FOIA’s requirement for open deliberation.

Closed session specificity: The policy incorporated FOIA Advisory Council guidance that closed sessions under the “specific legal matters” exemption apply only to actual legal transactions or disputes, not general policy discussions about proposed ordinances.

Under the transparency policy, the County Attorney could not have relied solely on the general reference to “agritourism” to justify moving deliberation behind closed doors. He would have needed to identify a specific legal transaction or dispute, but none exists. The question of whether to regulate agritourism is a policy matter that requires public deliberation, not a legal matter that requires confidential attorney-client consultation.

Public deliberation as default: The policy established the principle that legislative matters require public deliberation except in very narrow circumstances. This would have reinforced that the July 15 public hearing was the appropriate forum for addressing implementation questions, not a closed session.

When I asked the Zoning Administrator what objective criteria he would use to determine “substantial impact,” that question should have been answered publicly. The answer would have revealed whether objective standards existed, informed public comment, and enabled genuine deliberation about whether the regulatory approach was sound.

Instead, the County Attorney interrupted and recommended a closed session, where “substantial questions” of the Board could be answered. Under the transparency policy, that recommendation would have been immediately recognizable as improper-legislative deliberation belongs in public, not behind closed doors.

What Citizens Should Watch For

When the agritourism regulation returns to the Board agenda, watch for these warning signs:

1. “Unfinished business” without new public hearing: If the Board attempts to simply un-table the matter and vote without a new properly-noticed public hearing, that violates § 15.2-2204. The July 15 hearing was never closed-any future action requires starting the hearing process over.

2. Closed session recommendations: If the County Attorney recommends a closed session to discuss the regulation, remember that legislative deliberation about proposed ordinances belongs in public. The “specific legal matters” exemption applies to legal transactions and disputes, not policy development.

3. Absence of written legal analysis: If the Board schedules a hearing without providing public written legal analysis of the county’s authority and the regulation’s legal foundation, demand it. Citizens cannot meaningfully participate in deciding whether regulation is needed if the legal basis remains hidden.

4. Undefined standards: If the regulation still gives the Zoning Administrator discretion without objective criteria, that’s the “arbitrary and capricious” problem identified by the farmer at the July 15, 2025, hearing. Standards must be developed publicly with input from both residents and the agricultural community.

5. Minimal notice or rushed timeline: Proper public process requires time for education, community input, and deliberation. If the regulation returns with short notice or pressure to act quickly, that’s a red flag.

The Broader Transparency Issue

Now that the transparency policy has been repealed, only ongoing public attention can ensure that policy development occurs in public view. The agritourism regulation illustrates why this matters.

When legal counsel’s subjective opinion about vulnerability or “loopholes” drives proposed ordinances toward adoption without public education about the problem being solved, without written legal analysis accessible to citizens, without objective standards developed through public input, that’s when governance bypasses the democratic process.

The opportunity for proper process isn’t lost. But it requires citizens to insist on it. When the proposed text amendment for agritourism regulation resurfaces, demand:

• New public hearings with proper notice
• Written legal analysis of the county’s authority
• Objective standards developed publicly
• Meaningful agricultural community participation
• Evidence of actual impacts justifying regulation

The agritourism regulation remains tabled. When it returns, we’ll see whether Warren County embraces the public process that legislation deserves-or whether the pattern of minimizing public participation continues.

If citizens remain engaged and demand transparency, proper process can still prevail.