Ohio court allows township to use zoning to prohibit winery

Court says winery must grow more grapes to be defined as “agriculture.”

In a split decision, the Seventh Distict Court of Appeals has ruled in favor of a township in Mahoning County that wants to close down a small winery.  Milton Township claims that the winery violates township zoning regulations because it is located in a residential zoning district and does not qualify for the “agricultural exemption” from local zoning.  The court of common pleas and the majority on the appeals court agreed with the township, but a strong dissent by Court of Appeals Judge DeGenaro challenges the courts’ rulings and illustrates the need for clarity in Ohio’s rural zoning laws.

Myrddin Winery is a family owned business located on Lake Milton in Milton Township, on property that also contains a residence.  A free standing addition serves as the winery, and the property also has a vineyard containing 20 grape vines, with 12 vines producing grapes for harvest.   The Sperry family uses their grapes for wine, and must also import grapes and grape juices for their wine production–5% of their wine derives from their grape vines.  They make and bottle the wine on the premises.  Customers visit the winery to taste and purchase the wine and food items.

Before opening in 2005, the Sperry family asked the township zoning inspector if the township required any permits for the winery.  The zoning inspector advised that the family could begin operations immediately because the township did not require any permits.  In 2008, however, the township changed its opinion and notified the Sperrys that they were in violation of the township zoning resolution.  The township filed a complaint and requested the court to issue an injunction that would prohibit continued operation of the winery.

Two issues were before the Mahoning County trial court upon hearing the Myrddin Winery case:  1) whether a winery is “agriculture” for purposes of the agricultural exemption in Ohio zoning law, and 2) whether Ohio zoning law exempts wineries from local zoning regulation.  The trial court answered both questions in the negative.  The Sperry family appealed the decision to the Court of Appeals.

The court of appeals examined the Ohio Revised Code’s agricultural exemption from township zoning authority, but focused its decision on the statute’s definition of “agriculture” in O.R.C. 519.01, which states:

  • “As used in section 519.02 to 519.25 of the Revised Code, ‘agriculture’ includes farming; ranching; aquaculture; apiculture; horticulture; viticulture; animal husbandry, * * *; poultry husbandry * * *; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any combination of the foregoing; the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production.”   (Emphasis added.)

As Judge DeGenaro points out in the dissent, the court should have relied on the actual agricultural exemption language contained in R.C. 519.21(A), which provides:

  • “Except as otherwise provided in division (B) of this section, sections 519.02 to 519.25 of the Revised Code confer no power on any township zoning commission, board of township trustees, or board of zoning appeals to prohibit the use of any land for agricultural purposes or the construction or use of buildings or structures incident to the use for agricultural purposes of the land on which such buildings or structures are located, including buildings or structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture, and no zoning certificate shall be required for any such building or structure.” (Emphasis added.)

I agree with the dissent’s interpretation of the statute, which is that a township may not prohibit the use of buildings or structures that are used primarily for vinting and selling wine and that are located on land used for viticulture, which is the growing of grapes for wine.   Under this interpretation, Myrddin Winery could not be prohibited by way of zoning regulation.  However, the majority chose to read R.C. 519.21(A) to require that “any buildings or structures used primarily for vinting and selling wine” must also fit within the definition of “agriculture” in R.C. 519.01.  That definition includes “viticulture” and the processing and marketing of agricultural products, but only if processing and marketing of products is “secondary to” production.  Because Myrddin Winery was importing more grapes and grape juice for its wine than it was growing on the property, the court concluded that the processing and marketing of the wine was not secondary to production, but was the primary use of the property.  Thus, the agricultural exemption from zoning regulation would not apply and the township could prohibit the winery. 

In short, the court’s ruling requires a winery to ensure that production of  grapes is the primary use of the property and any processing and marketing of wine is the secondary use of the property.  Otherwise, local zoning can prohibit a winery.  This outcome is especially problematic for beginning  operations, because grape vines require many years of cultivation prior to successful harvest for wine production.  It also raises challenges for the winery landowner who must prove whether the grapes or the wine are the “primary” use of the property.  The specific exemption for wineries in 519.21(A) avoids these complications.

The Myrddin Winery case is one example of the confusion surrounding Ohio’s agricultural exemption from township and county zoning authority, and the court’s ruling strays too far from the intent of the law–to ensure that agricultural activities can persist outside of municpal areas.   The Sperry family has a strong basis for appealing the decision to the Ohio Supreme Court and seeking final clarification of the winery provision in the agricultural exemption.  But the Ohio legislature could alleviate the problem for landowners like the Sperry family, as well as townships and counties, by providing statutory clarification to the agricultural exemption.  Cases like the Myrddin winery case pervade the state and continuously raise the issue of which agricultural activities can and cannot be regulated by zoning.  With growing interests in agriculture and with state and federal policies that promote new types of agricultural production, direct marketing, and on-site processing by agricultural producers, Ohio will continue to experience conflicts between agriculture and local zoning regulation.  It’s time for the legislature to simplify and clarify the relationship between agricultural land uses and local zoning authority.

The Myrddin Winery case is Terry v. Sperry, 2010-Ohio-1299 (March 23, 2010), and is available here.

7 Comments

Filed under Zoning

7 responses to “Ohio court allows township to use zoning to prohibit winery

  1. LAW ABIDING NEIGHBOR

    I guess I shouldn’t be surprised that this author would be bias towards the winery. Story should read how a family turned a residentially zoned house into a neighborhood nuisance under the guise of an agriculture enterprise. There are many untrue facts in this story, no different than how the owners of the winery misrepresented facts to the courts and still lost both cases. 20 plants don’t begin to produce enough wine to represent 5% of their sales. The lone standing building for the winery is an incomplete building which was red tagged by Mahoning County Building Dept. for having an incorrect building permit (seems a permit for a breezeway was obtained)… and the lies go on.

    • Ohio law allows agricultural activities to exist in any zoned district in Ohio’s unincorporated areas, including residentially zoned areas. The law specifically states that, with a few exceptions, townships or counties may not use zoning to prohibit the use of land for agriculture or the construction of buildings incident to agricultural land uses, “including buildings or structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture.” While the reader may be aware of facts specific to this case, the role of the appellate court is not to review the facts of this case, but to determine whether the trial court correctly interpreted and applied Ohio’s zoning statute. In doing so, the appellate court did not rely on the plain language of the zoning statute–“including buildings or structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture,” but instead chose to base its decision on the language in the zoning law’s definition of ‘agriculture’ that refers to the processing, drying, storing and marketing of agricultural products. My concern for this decision is twofold: that the court overlooked the plain language of the law and applied the wrong statutory provision, and that the law itself is in need of review and revision. If the winery at issue is a nuisance to the community, then the appropriate legal mechanism is nuisance law, not zoning law. According to the statute enacted by the Ohio legislature, the township does not have the legal authority to close the winery on the basis of a zoning violation.

  2. Pingback: Agricultural zoning case will go to Ohio Supreme Court « Ohio Agricultural Law Blog

  3. Diane Jones

    As ranchers devoting our 18+ acres in Geauga County since 1995 to the foaling, raising, training, showing, and sales of registered horses, we find ourselves in the unenviable similar situation of having to bring litigation against a township zoning inspector who provided written agricultural exemption for our proposed 10 kw single wind turbine to alleviate our economic dependence on expensive electrical energy largely created through the use of “dirty” coal and oil by-products. Three months and thousands of dollars later, in response to one “neighbor” nearly half a mile distant from our farm who managed to convince condominium owners that the proposed wind turbine was objectionable because it might be eligible for state and federal grants and that it was comparable to megawatt wind farms on the Great Plains, the zoning inspector started demanding to see privileged information like our grant applications. As a result of seeing the grant application, the zoning inspector managed to construe a “commercial” use to the project and rescinded his agricultural exemption from the project. In spite of myriads of evidence from First Energy, the PUCO, and Farm Bureau, all of which the Board of Zoning Appeals rejected without even reviewing, we are at the Common Pleas Level in Geauga County and are committed to pursuing this agricultural issue as far as the Ohio Supreme Court because the township’s reversal of decision violates ORC 519.21A and also involves a taking of assets in the form of our personal investment plus a loss of use of the land and the poaaible loss of the ability to use grant money because of the delays in time due to a Common Pleas, Appellate, and Ohio Supreme Court Issue. Ohio Agriculture is clearly under attack from overzealous township inspectors and officials who conclude that the voting power in townships no longer resides in the agriculturally-based population but in the residential element who have chosen to abandon the densely-populated urban areas in favor of small lots in townships. The Ohio Legislature needs to address this problem soon before farms and farmers are driven off by overzealous powerlords who, often unopposed at the township level of government, emptily and hypocritically promise to uphold Ohio Revised Code for the benefit of all the residents but disregard their own Land Use Plans that, at least on paper, respect the use of agriculture in townships. Our own township is currently in litigation on two agricultural issues, our own and that of a winery with some similarities to the Myrddin case.

  4. Pingback: Agricultural Zoning Case Will Go to Ohio Supreme Court

  5. Mark H. Hardenbergh, Architect Emeritus

    The entire question of what is “agriculture” should be addressed by the legislature. People who don’t like the appellate court decisions based on understanding what the RC actually says, are trying to get the hopes and aspirations of the modern day majority of people living in the hinterlands to replace the RC. Times change; people change. The day of agriculture taking precedence is long gone. By an easy 75 years. It’s time for the legislature to step up and make the legislation reflect the service oriented economy with its employees living in the country.

    • Congress Works For Us

      Fortunately for those of us who are involved in agriculture, the State Supreme Court doesn’t agree with you.

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