Regulating Signs on Agricultural Property

Can Ohio townships use their zoning authority to regulate outdoor signs on agricultural property?  This is a question I’ve received many times.  I can now refer townships to legal guidance provided by the Ohio Attorney General in an opinion issued October 20, 2009 (OAG 2009-041).   The OAG opinion walks us through an analysis of the persistently problematic Ohio Revised Code section 519.21, commonly referred to as the ‘agricultural zoning exemption,’ which states that townships may not use their zoning authority “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,” with a few exceptions.  

The OAG opinion provides the following explanation of how the agricultural exemption applies to an outdoor sign on agricultural property:

 “1. Pursuant to R.C. 519.21(A), officials of a township that has not adopted a limited home rule government under R.C. Chapter 504 may not regulate the location, height,bulk, or size of a fee-standing outdoor sign that is located on a lot greater than five acres and deemed to be a structure when the use of the sign relates directly and immediately to the use for agricultural purposes of the lot on which the sign is located.

2. The use of a free-standing outdoor sign is directly and immediately related to the use for agricultural purposes of the lot on which the sign is located when the sign advertises the sale of agricultural products derived from the lot on which the sign is located.

3. The use of a free-standing outdoor sign is not directly and immediately related to the use for agricultural purposes of the lot on which the sign is located when the sign advertises the sale of (1) agricultural products not derived from the lot on which the sign is located or (2) things other than agricultural products.

4. Township officials may consider any information or facts they deem necessary and relevant in order to determine in a reasonable manner whether the use of a free-standing outdoor sign is directly and immediately related to the use for agricultural purposes of the lot on which the sign is located or an attempt to promote an activity that is not conducted in conjunction with, and secondary to, the production of the agricultural products derived from the lot on which the sign is located.”

Note that the opinion pertains only to townships that have not adopted a limited home rule form of government–most of our townships have not taken the action necessary to adopt limited home rule powers.  The opinion also notes that the ‘farm market exception’ may provide townships with limited authority to regulate outdoor signs, and that a different outcome could result for regulation of lots less than five acres in a subdivision setting.

The OAG’s guidance is consistent with the history of the agricultural exemption and the many court cases that have interpreted the law.  When the Ohio legislature gave townships zoning authority over 50 years ago, it tried to ensure that townships would not “zone out” all agricultural land uses in rural areas.   The legislature’s foresight on the issue of agricultural land use was remarkable, but their statutory language has yielded uncertainty and confusion.  The OAG’s opinion attempts to clarify some of that language, but the opinion forces townships into a careful analysis of each individual situation that may prove difficult and problematic for zoning officials. 

The opinion itself recognizes the challenges posed by a “mixed use” situation, where the  sign includes multiple products or partial products–some that derive from the property and others that do not, or promotes an activity related to the property’s agricultural use.  The Attorney General doesn’t resolve this problem, but defers to the townships on these types of situations.  The opinion states that when addressing these situations,  township officials may consider “any information or facts they deem necessary and relevant in order to determine in a reasonable manner whether the use of an advertising device is drectly and immediately related to the use for agricultural purposes of the lot on which the device is located,”  or conversely is an “attempt to promote an activity that is not conducted in conjunction with and secondary to the production of the agricultural prouducts derived from the lot.”   Once again, township zoning officials may find themselves in a state of uncertainty over how or whether to regulate a land use on an agricultural property. 

Read OAG opinion 2009-041 at http://www.ohioattorneygeneral.gov/Legal/Opinions.

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