Kansas Attorney General Opinion 1992-092

ROBERT T. STEPHAN
ATTORNEY GENERAL
July 15, 1992
ATTORNEY GENERAL OPINION NO. 92-92
The Honorable Don Rezac
State Representative, 61st District
12350 Ranch Road
Emmett, Kansas 66422
Re: Counties and County Officers -- Planning and
Zoning; Planning and Zoning in Counties --
Agricultural Purposes; Farm Winery
Synopsis: Operation of a farm winery constitutes an
agricultural purpose and is therefore exempt from
county zoning regulations pursuant to K.S.A. 1991
Supp. 19-2921. Cited herein: K.S.A. 17-1602;
19-2901; K.S.A. 1991 Supp. 19-2921; 41-102, as
amended by L. 1992, ch. 201, § 1; 41-308a, as
amended by L. 1992, ch. 201, § 2; 74-551.
*
Dear Representative Rezac:
As state representative for the 61st district, you request
our opinion as to whether operation of a farm winery is
considered an agricultural use pursuant to K.S.A. 1991 Supp.
19-2921 and therefore exempt from the county zoning
requirements.
Counties have the authority to enact zoning regulations
pursuant to K.S.A. 19-2901 et se q. However, such
authority is limited by K.S.A. 1991 Supp. 19-2921 which states
in part:

"Except for flood plain regulations in
areas designated as flood plain,
regulations adopted pursuant to this act
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."
Attorney General Opinion No. 90-68 discussed the intent of
K.S.A. 19-2921 (Ensley 1988):
"The 'obvious purpose' of K.S.A. 19-2921
was stated in Blauvelt v. Board of
Leavenworth County Commissioners, 227
Kan. 110 at 133 (1980): 'to favor
agricultural uses and farmers. Since the
state's economy is based largely on the
family farm it would appear the intent of
the legislature was to spare the farmer
from more governmental regulation and not
discourage the development of this state's
farm industry.
"Kansas case law has discussed the term
'agriculture' in various contexts, with
the oldest definition of the term found in
State ex rel., v. Wheat Farming Co., 137
Kan. 697 (1933), which included the
rearing of domestic animals. Carp v.
Board of County Commissioners, 190 Kan.
177 (1962), held that agriculture includes
animal husbandry - the raising and feeding
of livestock. Fields v. Anderson Cattle
Co., 193 Kan. 558 (1964), noted that the
term 'agriculture' includes the breeding,
rearing and feeding of livestock in
preparation for market and that the
preparation of farm products for market is
the dominating purpose of the
agriculturalist. In reaching that
definition of 'agriculture' Fields cited
3 C.J.S., Agriculture, § 1, p. 366:
'It has been said that agriculture
includes at once the science or art and
process of supplying human wants by

raising products of the soil and by
associated industries. Accordingly,
therefore, it may include not only the
tillage of the soil and the cultivation
of crops, but also the rearing and
feeding of all kinds of farm
livestock. . . .'" Attorney General
Opinion No. 90-68.
While K.S.A. 19-2921 has since been amended, we believe the
language quoted above remains valid.
Part of the requirements of a farm winery licensee are that:
"Not less than 60% of the products
utilized in the manufacture of domestic
table wine by a farm winery shall be grown
in Kansas except when a lesser proportion
is authorized by the director based upon
the director's findings and judgment. The
label of domestic wine shall indicate that
a majority of the products utilized in the
manufacture of the wine at such winery
were grown in Kansas. . . ." K.S.A. 1991
Supp. 41-308a(c), as amended by L. 1992,
ch. 201, S 2.
Furthermore, K.S.A. 1991 Supp. 41-102(j), as amended by L.
1992, ch. 201, § 1, defines domestic table wine as "wine
which contains not more than 14% alcohol by volume and which
is manufactured without rectification or fortification from
agricultural products grown in this state." (Emphasis
added). An agricultural product is further defined in the
cooperative marketing act to include "horticultural,
viticultural, forestry, dairy, livestock, poultry, bee and
farm and ranch products." K.S.A. 17-1602.
Although a person receives a farm winery license from the
alcoholic beverage control division of the department of
revenue, "the secretary of the state board of agriculture may
establish a grape growing and wine making advisory program to
aid in the technology, promotion and marketing of Kansas grape
growing and Kansas farm wineries." K.S.A. 1991 Supp. 74-551.
Farm wineries are in the business of the manufacture of
domestic table wine which may or may not include the actual
growing of grapes. Regardless of this fact, the manufacture
of domestic table wine seems to fit within the general
definition of agriculture purpose because it is a "science or
art and process of supplying human wants by raising products

of the soil and by associated industries." 3 C.J.S.,
Agriculture, § 1.
The Kansas court in deciding what constitutes an agricultural
purpose have held that a wildlife hunting preserve met that
definition. Corbert v. Bd. of Shawnee County Comm'rs,
14 Kan.App.2d 123, 127 (1990) stated:
"It is a well-established principle that
zoning ordinances must be liberally
construed in favor of the property owner.
Koppel v. City of Fairway, 189 Kan.
710, 713, 371 P.2d 113 (1962). 'Zoning
ordinances, being in derogation of the
right of private property, should be
liberally construed in the property
owner's favor, and where exceptions appear
they are liberally construed in favor of
the property owner.' Koppel, 189 Kan.
at 713.
"Considering the legislative policy of
favoring agricultural uses and promoting
the development of the farm industry,
together with the liberal construction
given zoning ordinances in favor of
property owners, the operation of a
wildlife hunting preserve, under the facts
of this case, is an 'agricultural purpose'
as contemplated by 19-2921 and is exempt
from county zoning regulations."
Using this same rationale, we conclude that a farm winery is
an agricultural purpose and is therefore exempt from county
zoning regulations pursuant to K.S.A. 1991 Supp. 19-2921.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
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