Commentary: When “Loopholes” Are Actually Rights – The Agritourism Regulation Story

What happened last summer reveals a sequence of events in which legal counsel’s opinions and policy preferences can stymie a truly transparent public process for forming legislation, moving proposed ordinances toward adoption without the education, deliberation, and public participation that democratic governance requires.

What Happened

The sequence of events:

June 3, 2025: A closed session motion with 6 listed subjects was made. The meeting time was one hour. Agritourism was the fourth item. Given the number of items on that closed session agenda and the one-hour time frame, it’s questionable whether the Board actually discussed agritourism during that meeting.

July 15, 2025: A public hearing on the agritourism text amendment was opened. The agenda coversheet explained the legal mechanism-that the amendment would differentiate agritourism activities based on the Zoning Administrator’s determination of “substantial impact,” with those found to have substantial impact requiring a conditional use permit (at a cost of $1,500 just to apply) The coversheet noted that “these text amendments are being requested by Planning staff at the recommendation of the County Attorney” and that the approach “match[es] the breakdown and regulation of agritourism activities from Shenandoah County’s zoning ordinance.”

The same County Attorney represents both Warren County and Shenandoah County. But Warren County needs to determine what’s best for Warren County, not simply adopt Shenandoah County’s approach. Each county has its own agricultural economy, its own patterns of land use, and its own balance of interests between farmers and residents. The mere fact that Shenandoah County regulates agritourism in a particular way does not establish that Warren County should do the same, much less that Warren County should adopt such regulation without thorough public deliberation about whether it’s needed here.

What the coversheet did not provide: any explanation of what problem the regulation is intended to solve, evidence of substantial impacts from agritourism activities in Warren County, how the regulation would affect current and future nascent agritourism operations, what criteria the Zoning Administrator would apply in making determinations, or why this regulatory approach was chosen over alternatives. The public received a description of the legal mechanism and a reference to Shenandoah County’s approach, but not the policy rationale or practical implications for Warren County.

During the hearing, I began asking the Zoning Administrator about the proposed regulation’s implementation. Specifically, I asked what objective criteria he would use to determine whether an agritourism activity had “substantial impact on health, safety, or general welfare”-or would those determinations be subjective?

The County Attorney interrupted. Rather than allow the question to be answered publicly, in the forum where citizens have the right to hear Board deliberation, the County Attorney claimed a prior closed session had addressed the topic and recommended tabling the matter for another closed session. Quoting the July 15 hearing minutes, the County Attorney “recommended this item be tabled, emphasizing that if the Board had a lot of substantial questions, then a closed session should be held with the Board, Planning staff, and himself.”

One citizen during public comment asked which specific section of Virginia Code § 2.2-3711 the Board was claiming as FOIA exemption to discuss the matter in closed session, emphasizing that section 8 “specifically states that nothing in the subdivision shall be construed to permit the closure of a meeting merely because of an attorney representing the public body in attendance or has consulted on a matter.” She continued: “this is a public ordinance and the public deserves to be in the conversation, as this ordinance will have a great negative impact on working farms and residents who enjoy them.”

August 6, 2025: Following several exchanges with the County Attorney and with cc to the full Board in which I had challenged the appropriateness of closed sessions for deliberating proposed ordinances, the Board voted 3-2 against entering closed session on this matter. A majority of supervisors agreed that the proper place for deliberation on agritourism regulation was in a public meeting, not behind closed doors. That majority no longer exists.

Today: The regulation remains tabled, officially, so the Board could “get it solid.” The public hearing was never formally closed.

The “Loophole” That Isn’t

The County Attorney has characterized the county’s ordinances related to agritourism as having a loophole that creates vulnerability. But what he’s calling a loophole is actually a policy choice: Warren County has not yet exercised the regulatory authority that state law permits.

Virginia Code § 15.2-2288.6 permits localities to regulate agritourism activities, but only “if there is a substantial impact on the health, safety, or general welfare of the public.” This is permissive, not mandatory. Counties may choose to regulate, but they’re not required to do so.

Read that carefully. The default position under Virginia law is that farmers have the right to conduct agritourism activities. Local regulation is the exception, permitted only when there’s a substantial impact on public health, safety, or welfare.

Warren County’s current ordinance (§180-31.1) addresses agritourism with basic requirements: compliance with permit requirements, lighting standards, handicap accessibility for parking, and health department regulations. It does not explicitly address health, safety, or general welfare. It also does not give county officials discretion to determine whether individual agritourism activities have “substantial impact” before they can proceed.

The County Attorney views this as a gap that must be closed. But not only closed–closed without the public being apprised of the facts concerning the current ordinance relative to his proposed text amendment, the reason being that the “gap” could be damaging to the county, in his subjective opinion. This reveals an a priori determination that the so-called gap is a real problem that will be solved by regulation, bypassing public deliberation about whether the gap even needs closing. Hence, the June 3 closed session with agritourism buried as the fourth of six items, the interruption of public questioning on July 15 with a recommendation to move behind closed doors, and the second (failed) attempt on August 6 to resume discussion in closed session.

The proposed text amendment would add a regulatory layer, requiring farmers to have their proposed agritourism activities reviewed by the Zoning Administrator for potential “substantial impact” before proceeding. But the process by which this regulation nearly reached adoption demonstrates the County Attorney’s approach: the decision to regulate had already been made, and public participation was something to be minimized rather than embraced. Correspondence between staff and the County Attorney reveals that staff were not even sure the Board of Supervisors would “go for it”-suggesting awareness that the regulation might not survive genuine public scrutiny.

The County Attorney’s approach was clearly articulated at the January 8, 2026, meeting, during the discussion that preceded the Board’s repeal of the recently enacted legal services transparency policy. He stated that the Virginia Rules of Professional Conduct require that “a lawyer shall not reveal information protected by the attorney-client privilege or other information gained in the professional relationship, the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation.”

But the Rules of Professional Conduct do not supersede FOIA-Virginia Code § 54.1-3915 explicitly prohibits ethics rules that are inconsistent with statute. Attorney ethics rules cannot be used as a filter to pre-determine what the public gets to hear in deliberations about proposed ordinances. This interpretation would effectively eliminate public deliberation on any proposed ordinance where legal analysis might reveal risks or weaknesses. Any ordinance could be characterized as potentially “embarrassing or detrimental”, whether currently in place or proposed. Under this view, the County Attorney’s opinion that the agritourism “loophole” creates vulnerability would justify keeping all deliberation about the regulation behind closed doors-precisely what he attempted three times. Under this approach, the only way this regulation can pass is with all “substantial questions” of Supervisors to be answered behind closed doors, then to come into open session and vote without discussion of what those questions and answers were. That is not a transparent legislative process.

But “we haven’t regulated yet” is not the same as “loophole.” It’s a policy status quo. And changing that status quo requires asking: Is there evidence of substantial impact from agritourism in Warren County? What existing problems is this regulation going to solve? What anticipated future problems is this regulation going to prevent? What regulatory approach best balances residents’ concerns with farmers’ state-granted rights?

These are exactly the questions that require public deliberation.

Two Legitimate Perspectives Require Public Process

There are two sides to this issue, both deserving consideration:

Residents’ concerns: Some citizens worry about traffic, noise, parking, or other impacts from agritourism activities near their homes. These are legitimate quality-of-life concerns.

Farmers’ rights: The state legislature granted farmers broad authority to conduct agritourism, recognizing its economic importance and promoting what has become a multi-billion dollar industry in the Commonwealth. The General Assembly recognized that excessive local regulation could strangle this economic opportunity.

These competing interests require public deliberation. Workshops with the agricultural community. Public discussion about various regulatory approaches, from maintaining current basic requirements, to performance standards based on actual demonstrated impacts, to the discretionary review approach that was proposed. If additional regulation is warranted, objective criteria should be developed openly, with input from both farmers and neighbors.

What nearly happened instead: a regulation moved to public hearing with a coversheet describing the legal mechanism but offering no policy rationale. When questions arose about implementation, rather than answer them publicly, the recommendation was to move behind closed doors. The public was on the verge of losing the opportunity to participate meaningfully in a decision that affects both property rights and community character.

During the July 15 hearing, a public speaker who identified himself as a farmer emphasized the value of agritourism for local farmers and the community, noting its protection under state law unless there are substantial negative impacts. He observed that the text amendment “seems to flip that intent,” expressing concern about the objectivity of the standards, which he characterized as “arbitrary and capricious.”

To be clear: I’m not opposed to agritourism regulation if substantial impacts can be demonstrated through a public process. I’m opposed to adopting regulation without the public transparency and deliberation necessary to determine whether it’s needed and what form it should take. The rush to “close the loophole”-to add regulatory authority the county hasn’t yet exercised-bypasses the very process that should inform whether and how to regulate.

The proposed regulation would give the Zoning Administrator discretion to determine whether proposed agritourism activities meet undefined standards, with farmers able to appeal adverse determinations to the Board of Zoning Appeals within 30 days. While an appeal process exists, this still places the initial burden on farmers to navigate county review and, in some cases, pay a $1,500 CUP application fee before exercising state-granted rights-all based on criteria that remain unspecified in the proposed text.

This is the pattern that concerns me. When legal counsel recommends moving policy discussions to closed session, or when proposed ordinances advance without a written legal analysis accessible to the public, citizens lose the ability to participate in the “business of the people.”

If the issue of legal transparency that I have been writing about recently has seemed overly technical or legalistic, hopefully, this specific case dealing with agritourism sheds light on how it has the potential to impact everyone in the county. It is the process of the government forming law that I am trying to ensure is truly transparent.

This regulation remains tabled. My next article will explain what proper process requires when it returns, and how the transparency policy the Board repealed in January would have prevented this pattern.