Agricultural Activities in Ohio can be Exempt from Local Zoning

Peggy Kirk Hall, Asst.  Professor, OSU Extension Agricultural & Resource Law Program

Spring brings an increase in agricultural land use activity and with it comes a surge of inquiries about Ohio’s agricultural zoning laws.  Here at OSU, we repeatedly hear a common question from agricultural landowners and local zoning officials:  can zoning regulate this agricultural situation?  That’s a question without a short and simple answer.   A review of Ohio Revised Code sections 303 and 519, which contain the “agricultural exemption” from county and township zoning authority, is the first step toward understanding whether a county or township can regulate an agricultural land use (note that different laws apply for cities and villages).   Here’s a summary of Ohio’s agricultural zoning laws:

Agriculture is exempt from rural zoning authority in many, but not all, situations.   While Ohio law grants counties and townships the authority to utilize zoning, the law limits how much authority these local governments have over agricultural land uses.  Generally, a county or township may not prohibit the use of any land for agricultural purposes in any unincorporated area, with a few exceptions that are noted below.  This exemption applies in any zoning district, whether residential, industrial, commercial, agricultural or otherwise.

An exempt activity must be in the definition “agriculture.”   Ohio agricultural zoning laws apply to “agriculture,” which the law defines to  include:  farming; ranching; algaculture; aquaculture; apiculture; horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber and pasturage.  “Agriculture” also includes activities involving the processing, drying, storage, and marketing of agricultural products if those activities are conducted in conjunction with but secondary to actual production of those products.

Agricultural buildings and structures can also be exempt from zoning authority.   If a building or structure is directly related to an agricultural activity on the same parcel of land, then Ohio zoning law does not allow a county or township to require a zoning certificate or prohibit the construction or use of the building.  For example, local zoning cannot require a zoning permit or prevent the construction of a barn being built for housing cattle or storing farm machinery that is used for farming on the same property.  Also, zoning may not regulate or prohibit any building or structure that is used primarily for vinting and selling wine that is located on land where grapes are grown.

Special rules for farm markets.  Ohio law also says that local zoning cannot prohibit the use of land for a farm market in any industrial, residential, commercial or agricultural zoning district if 50% or more of the market’s gross income is from produce raised on farms owned or managed by the farm market operator.   But where necessary to protect public health and safety, local zoning may regulate the size of the farm market building, parking area size, set back lines and access to the market.  This provision is commonly known as the “farm market 50% test.”

Special rules for on-farm energy production.  Several energy production activities are not subject to local zoning if they occur on land qualified for CAUV (Current Agricultural Use Valuation).  These activities include biodiesel, biomass energy, electric and heat energy production, as well as biologically derived methane gas production of less than five megawatts.

Some agricultural activities can be regulated by local zoning.  There are a few exceptions to the agricultural exemption.  Local zoning may regulate agriculture in the following situations if the parcel of land is five acres or less and is located in a platted subdivision containing 15 or more lots:

  • On a lot that is one acre or smaller, zoning may prohibit or regulate all agricultural activities.
  • On a lot between one and five acres, zoning may regulate set back lines, height and size of buildings used for agriculture and may prohibit or regulate dairying and animal/poultry husbandry if 35% or more of the lots in the platted subdivision are developed.

Unfortunately, a summary of the zoning statute doesn’t answer all questions about agriculture and zoning.  Look for our future articles for continued analysis of Ohio’s agricultural zoning laws.  For additional zoning information, also see our zoning library, here.

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18 Comments

Filed under Zoning

18 responses to “Agricultural Activities in Ohio can be Exempt from Local Zoning

  1. Sylvia DeFranco

    Can zoning regulate caretakers quarters?

    • The answer depends upon a few factors, such as the type of “caretaker” situation and the location of the building. In most instances, zoning could regulate the activity, especially if the quarters are long-term.

  2. Danielle

    I came across this post and blog while researching the ORC and our local county zoning. We are considering the purchase of a home and are trying to establish whether we would be allowed to keep poultry or other small animals. The property is .91 acre and 100 feet wide.

    Though the zoning regulations state that the county can not/does not prohibit these activities on unplatted properties and an earlier post on this blog seemed to indicate there is no minimum acreage requirement, our county does state that no animal housing be erected closer than 50 feet from any property line. This effectively prohibits a property owner from agricultural uses on a small property. So, is it correct that they can not prohibit these activities or the related buildings directly, but they can restrict both by requiring a setback higher than that required for other accessory buildings?

    • Unless a property falls within the platted subdivision exception mentioned (is in a platted subdivision approved under section 711.05, 711.09, or 711.10 of the Revised Code, or in any area consisting of fifteen or more lots approved under section 711.131 of the Revised Code), then a county setback provision that effectively prohibits agriculture or prohibits a structure that is incidental to agriculture would violate the agricultural exemption in Ohio Revised Code 519.21(A).

      • Danielle

        Thanks for your input! That makes sense to me…it seemed contradictory to prohibit it in an indirect way while saying that they can’t prohibit it. 🙂

        Now I’m not sure what the best course of action would be for homeowners like ourselves then since the zoning code does state this setback restriction. The contact person at the zoning office told us directly that we could not have animals due to the setback provision even though they confirmed that the property does not fall into those subdivision definitions. We have signed a contract to purchase the property so I suppose we will have to figure out how to deal with the issue before we pursue any agricultural/animal projects. Are there any contacts at the OSU extension office that might be able to direct or advise us when we get to that point?

        Thanks again!

  3. Becky

    Hello! I’m not sure if you still check this thread, but I thought I’d give it a shot. I currently have Ag income, I have a bachelors degree in Agriculture, and I have an extensive Ag background. I own 5.053 acres in a township, that is vacant land and mostly open and tillable. This parcel of land is on a country road and not in a platted subdivision. I had visited the county about putting up a barn for agriculture use. The county said they don’t interfere with Ag use, and I would just need documentation from my township; and then the county would issue to me, an Ag building permit. The township zoning inspector states over and over, that I can’t build my barn because I don’t have a house on the property. They said the maximum size outbuilding that I can build is 192 square feet. According to everything I have read (if I have interpreted it correctly), I believe I should be able to build my barn for agriculture use. I talked with the zoning inspector once more today, and he stated that if my land was under CAUV, then it would be considered ag use; however, even then, I wouldn’t be permitted to build my barn since a house is not on the property. He went on to say my situation is a gray area. Can you please tell me if I am correct, according to the ORC, that I can build a barn on my property of 5.053 acres, for agricultural use, without having a house on the property? Thank you in advance for your valuable time!

    • Becky,
      As long as there is an underlying agricultural use to the property, the township cannot prohibit you from building a barn for that agricultural use because of the agricultural exemption in ORC 519.21. The zoning inspector is confusing the law a bit by referring to CAUV, as that is not the definition of “agriculture” that applies to this situation. Rather, there must be an agricultural use that fits within the zoning law definition of agriculture, which is here: http://codes.ohio.gov/orc/519.01. The local zoning provision requiring a house would only apply to your situation only if the land does not fit within the agricultural exemption of the Ohio Revised Code. I hope this is helpful.

      • Becky

        Thank you so much for the information! I will convey this to the zoning inspector. Thank you for sharing your knowledge and valuable time!

        Becky

        Sent from my iPhone

  4. Cathy

    Is silviculture a township zoning exempted activity?

    • The definition of “agriculture” for purposes of the zoning exemption is below. You’ll see that it does not state “silviculture,” but instead includes “timber” in the definition.

      519.01 Township zoning – agriculture defined.
      As used in sections 519.02 to 519.25 of the Revised Code, “agriculture” includes farming; ranching; algaculture meaning the farming of algae; aquaculture; apiculture; horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; 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; and 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.

      • Joe

        Peggy, fur-bearing animals are noted as being included in the agriculture exemption above, however, they are also defined and regulated by ORC Section 1531.01.W. For zoning purposes, is it safe to assume that fur-bearing animals referenced in Section 519 above may not necessarily include fur-bearing animals as specified in ORC Section 1531.01.W due to the fact that they are separate sections of the ORC, with the latter specifically tailored to wild animals, not domesticated animals?

      • ORC 1531.01 limits the definition of “fur bearing animals” to the use of that term in Chapter 1531 of the Ohio Revised Code. Likewise, the reference to fur-bearing animals within the definition of “agriculture” in ORC 519.01 applies only within Chapter 519 of the Ohio Revised Code. Due to these statutory limitations, we would not apply the definition of “fur bearing animals” in 1531.01 to the use of the term “fur-bearing animals” in 519.01.

  5. Cities and villages may restrict agriculture based on the zoning codes in that municipality. Can cities and villages define agriculture differently than the Ohio Revised Code, or are they bound to the definition of the Ohio Revised Code? Thanks!

    • Yes; because any municipality like a city or village has “home rule authority” in Ohio, they do have the authority to regulate agriculture, which includes the authority to define agriculture.

  6. Wes

    Peggy,
    My family and I live on 5 acres in rural Shelby County Ohio. We are mostly surrounded by farm fields. Currently we have 6 goats and 15 Chickens. We are planning to build a 40×56 pole barn under AG use and will house the goats inside. Our zoning officer is refusing to zone this an AG building he says that my income has to be 40% from ag in order to build an AG building. So now he is forcing me to go residential, this means the health department wants us to dig up our entire septic system just to inspect it since nothing is on file. We feel hopeles . Please advise.

    • I am assuming that you are not in a subdivision or an area where there are fifteen or more contiguous lots, and that your parcel is over five acres. If so, the requirement for the “agricultural exemption” from zoning in regards to barns is that the barn will be exempt from zoning if it is “incidental to an agricultural use” of the land on which it’s located. This means that if the land is being used for agriculture, the barn or structure that relates to that agricultural use of the land is not subject to zoning regulations and does not require a building permit. If you are using the land to raise goats, and the barn supports that use, then the barn is exempt from zoning. Many zoning officials think that the entire barn or structure must support the agricultural use of the land, but the law does not include any such requirement, and there is no income requirement either. The inspector might be confusing your barn with the farm market exemption from zoning, which applies as long as 50% of the farm market’s income derives from the farmer’s produce. I also find that the zoning officials confuse the zoning exemption with the building code exemption, which also refers to a 50% income test. Refer your zoning inspector to Ohio Revised Code section 519.21(A).

  7. Bob Logan

    Peggy,
    We own property in an Ohio township that is over one acre (but under 5 acres) and not in a platted subdivision. We currently operate a winery there and grow some grapes- which do not account for a large percentage of wine sold currently- much like the Terry v. Sperry case. We want to construct a building which will initially house equipment used at the winery. We feel confident we need no consent from the local township for this construction- however we are unclear if we need to involve the local Port Authority which regulates building codes/permits for the county. ORC 303.21(A) would seem to take powers to regulate our agricultural use away from the county commissioners-which formed the Port Authority. Does the Port Authority have the power to enforce building codes against an agricultural use building? If yes, how would ORC 3781.06(b)(1) be applied as the 50% test is based on “sales of products in the building {constructed}” which would be equipment/farm implementation items. In short, that test would make no sense. Any help experience in this matter would be appreciated.

    • This is an interesting question. I have not worked extensively with Port Authorities and do not understand the relationship between your Port Authority and township. Regardless, the section of law you mention, ORC 3781.06 (the Ohio Building Code) creates a building code exemption for agricultural buildings as long as that building is not used in the business of retail trade, then explains the 50% test to determine whether an agricultural building is used for retail trade. However, since you building would not involve any retail trade at all, you need not worry about the 50% test. The building is exempt as an agricultural building if it is just used for equipment storage that supports your viticulture and winery.

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