The Ag Law Harvest

By: Jeffrey K. Lewis, Attorney and Research Specialist, OSU Agricultural and Resource Law Program

Did you know that a group of ferrets is called a business?  Ironically, we are in the business of ferreting out agricultural and resource law issues and providing you updates.  This edition of the Ag Law Harvest provides an update on recent court decisions from across the country that deal with the right to farm, food labeling, and conditional use permits for solar gardens. 

Right to Farm Act upheld in North Carolina.  Earlier this month, a three-judge panel on the North Carolina Court of Appeals upheld the constitutionality of North Carolina’s right to farm law.  In 1979, the North Carolina legislature enacted the Right to Farm Act (the “Act”).  In 2017 and 2018 the North Carolina legislature amended the Act by passing House Bill 467 and Senate Bill 711 (collectively referred to as “the Amendments”).  The Amendments sought to clarify and strengthen North Carolina’s right to farm law. The Plaintiffs argued that the Amendments violated North Carolina’s equivalent of the U.S. Constitution’s Fourteenth Amendment Due Process Clause and that the Act exceeded the scope of North Carolina’s police power.  The Court of Appeals disagreed.  The Court recognized North Carolina’s interest in promoting and preserving agriculture and that North Carolina has the authority to regulate such an interest. The Court found that the Act’s limitation on potential nuisance claims against those engaged in agriculture, forestry, and other related operations helps to protect North Carolina’s interest, and encourages North Carolina’s goal to encourage the availability and continued “production of food, fiber, and other products.”   The Plaintiffs also argued that the Amendments were “private laws” to specifically protect the swine industry in violation of North Carolina’s Constitution.  The Court found, however, that the Act and the Amendments are laws of general applicability that apply to all agricultural and forestry operations, not just swine producers.  Lastly, the Plaintiffs argued that because the language in House Bill 467 limited the amount of compensation that can be recovered in a nuisance action against agricultural and forestry operations, the Plaintiffs’ right to a trial by jury had been impaired and/or abolished.  The Court ruled, however, that North Carolina has the authority to “define the circumstances under which a remedy is legally cognizable and those under which it is not.”  The Court found that there are many examples where compensation and remedies are limited within North Carolina law and that House Bill 467 did not “impair nor abolish the right to a jury trial.” 

Where is the cacao?  A California man (“Plaintiff”) is suing Costco Wholesale Corporation (“Costco”) for allegedly mislabeling Costco’s “Chocolate Almond Dipped Vanilla Ice Cream Bars” (the “Product”).  Plaintiff argues that because of the Product’s packaging and name, he expected the Product’s chocolate would have been predominately derived from cacao beans.  Plaintiff asserts that chocolate is defined by the Food and Drug Administration (“FDA”) and California law “as prepared from ground roasted cacao bean” and that it must be “made chiefly from cacao beans with a small amount of optional ingredients.”  Based on this definition, Plaintiff claims that Costco’s packaging is misleading because the Product’s chocolate contains mostly vegetable oils and small amounts of ingredients derived from cacao beans.  In his Complaint, Plaintiff argues that federal regulations require Costco to label the Product as “milk chocolate and vegetable oil coating” rather than just “chocolate.”  However, the court found that neither of Plaintiff’s cited regulations support a viable theory of liability against Costco.  First, the court could not find Plaintiff’s definition of chocolate anywhere in the Code of Federal Regulations.  Secondly, the court held that there are no federal regulations that require a certain amount of cacao bean ingredients as opposed to vegetable oils to be used in “chocolate” and that there is no language mandating the labeling of Costco’s Product as “milk chocolate and vegetable oil coating almond dipped ice cream bars.” The court also dismissed Plaintiff’s claim that Costco engaged in consumer deception with its Product’s label.  The court found that a reasonable consumer would not have been deceived by the Product’s label and that if there were any questions about the ingredients of the Product, a consumer could have resolved those questions by looking for the ingredients list on the back of the Product’s packaging. 

Conditional use permits at the center of the Minnesota’s “solar system.”  Move over Sun because conditional use permits are at the center of attention in Minnesota, for now.  The Minnesota Court of Appeals has recently ruled against a county’s decision to deny two conditional use permits to build solar gardens in McLeod County, Minnesota.  Two subsidiary companies of Nokomis Energy LLC (“Plaintiff”) each applied for a conditional use permit (“CUP”) to build separate, one-megawatt solar energy facilities.  McLeod County considered the two CUP applications at public hearings.  Two neighboring landowners expressed concerns about stray voltage and the number of fetal deaths among their livestock.  The landowners claimed that the number of fetal deaths increased after other solar facilities were constructed nearby.  Plaintiff did not deny that solar gardens can produce stray voltage but proposed to alleviate those concerns by hiring only licensed professionals and to allow third-party oversight during construction.  Plaintiff also offered to conduct stray voltage testing before and after construction and indicated that it would accept any conditions set forth by county officials.  The county, however, denied both applications on the basis that the proposed sites are “prime farmland” and because the stray voltage would negatively affect livestock.  The court rejected the county’s assessment.  First, the court held that preserving prime farmland is not a sufficient legal basis for denying a CUP.  Second, the court ruled that the county cannot deny a CUP without first considering whether any proposed conditions would eliminate any concerns about the application.  Here, the court found that McLeod County’s failure to address Plaintiff’s proposals to eliminate the stray voltage concerns amounts to an unjust denial of Plaintiff’s CUPs.    

Thanks for reading and Happy New Year! 

Court of Appeals confirms decision not to allow weddings on hay farm as “agritourism”

When does the business of hosting weddings on a farm qualify as “agritourism” under Ohio law?  That was the question faced by Ohio’s Second District Court of Appeals in a legal battle between Caesarscreek Township and the owners of a farm property in Greene County.  The answer to the question is important because local zoning can’t prohibit the hosting of weddings and similar events if they fall under Ohio’s definition of “agritourism.”  Those that don’t qualify as “agritourism” are subject to local zoning prohibitions and regulations.  According to the court’s recent decision, the determination depends largely upon the facts of the situation, but merely taking place on an agricultural property does not automatically qualify a wedding or event as “agritourism.”

The case regards the Lusardis, who own a 13.5 acre property in Caesarscreek Township containing a pole barn and outbuilding, a one-acre pond, several acres of woods, and an eight acre hayfield on which the Lusardis had produced hay for several years.  Their plan was to offer corn mazes, hayrides and celebratory events like weddings and receptions on the property.  To do so, the Lusardis had to demonstrate to the township’s Board of Zoning Appeals (BZA) that their activities fit within Ohio’s definition of “agritourism” and thus must be allowed according to Ohio law.   That definition in ORC 901.80 states:

“Agritourism means an agriculturally related educational, entertainment, historical, cultural, or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in or enjoy that activity.”

In applying the definition of agritourism to its local zoning, Caesarscreek Township requires an agritourism provider to explain how the “educational, entertainment, historical, cultural or recreational” activities it plans to offer are “agriculturally related” to the property and the surrounding agricultural community.  In their agritourism application with the township, the Lusardis explained that guests could use the property to celebrate an agriculturally themed event, enjoy the scenery, hay fields and woods, learn about plants and wildlife, have bonfires, play corn hole, fish, and get married outside, in the woods, or in the hayfield.  The township zoning inspector, however, testified to the BZA that he did not see a relationship between weddings and receptions and the Lusardi property itself.  A wedding or reception would not have a “basic relationship” to the existing agricultural use of the property or the surrounding area and the agricultural use of the property was incidental, at best, to the wedding and reception business, argued the zoning inspector.

The township BZA agreed with the zoning inspector.  It determined that the Lusardi’s corn maze and hayride activities qualified as agritourism, but held that any celebratory events such as weddings would not be “agriculturally related” to the property and thus did not fit within the definition of agritourism and could not take place on the property.  The Lusardis appealed the BZA’s decision to the Greene County Court of Common Pleas, whose duty under Ohio law was to determine whether the BZA’s conclusion was “unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.”  The common pleas court found the BZA’s conclusion reasonable and upheld the decision.  The BZA’s determination that weddings don’t bear a general relevance to agriculture was understandable, whereas corn mazes and hay rides do bear a reasonable relationship to agriculture, the court stated.

The Lusardis appealed the common pleas court decision to the Ohio Court of Appeals.  Its duty in reviewing the case was to determine whether the common pleas court had abused its discretion by making a judgment on a question of law that is “unreasonable, arbitrary or unconscionable.”  The appellate court concluded that the common pleas court had not abused its discretion by affirming the BZA decision.  Agreeing that it was reasonable for the BZA to conclude that the celebratory events were not sufficiently related to the agricultural property, the court stated that “just because an activity is on agricultural property does not make it “agritourism” and is not, by itself, enough to make the activity “agriculturally related.” 

The “what does ‘agriculturally related’ mean?” question is one we’ve pondered since the Ohio legislature created the definition of agritourism in 2016.   An important rule to draw from this case is that the answer must be made on a case-by-case basis.  The Lusardis asked the court of appeals to decide whether any celebratory event on an agricultural property would be agriculturally related and would therefore constitute “agritourism” as a matter of law, but the court refused to do so.  “Whether a particular activity constitutes “agritourism” is an issue that shades to gray quite quickly,” stated the court.  “Given the great variety of factual situations, we decline to rule on whether celebratory events constitute “agritourism” as a matter of law.”

Also noteworthy is the court’s attention to the BZA’s analysis of the activities that were to take place on the Lusardi property.  The BZA pointed to a lack of evidence that any crops or flowers grown on the property would be used in the events.  Also remiss was evidence that the only agricultural crop grown on the property—hay—was somehow connected to the celebratory events that would take place.  The court observed that these evidentiary flaws supported the BZA’s conclusion that the Lusardis were proposing an event venue with an incidental theme rather than an agricultural activity with an incidental event. 

Wedding barn issues have been a cause of controversy in recent years.  The Lusardi v. Caesarscreek Township decision follows an Ohio Supreme Court case earlier this year regarding whether a wedding barn fit within the agricultural exemption from zoning for buildings and structures used “primarily for vinting and selling wine.”  In that case, the Supreme Court determined that making and selling wine was the primary use of the barn and that weddings and events were incidental, yet were related to the production because event guests had to purchase the wine produced at the farm.  Taken together, these cases illustrate the importance Ohio’s agricultural zoning exemption places on production activities.  Where agricultural goods are being produced and sold, additional incidental activities such as celebratory events that are related to agricultural production will likely fall under the agricultural exemption.  But as the Lusardi case illustrates, local zoning may prohibit celebratory events that don’t have a clear connection to agricultural production and instead appear to be the primary rather than incidental use of the property.

Read the case of Lusardi v. Caesarscreek Township Board of Zoning Appeals here.

A “primary” education: Ohio Supreme Court rules on wedding barn dispute

Who knew wedding barns could lead us to the Ohio Supreme Court?  Such is the case for a longstanding controversy over a wedding barn in Medina County.  Litchfield Township opposed the use of the barn for weddings enough to file a lawsuit and appeal its case to Ohio’s highest court.  In a unanimous decision issued today, the court ruled that the weddings could go on.

The case revolves around Forever Blueberry Barn, LLC (“Blueberry Barn”), whose owners built a barn in 2015 in Litchfield Township. The owners’ plans were to host weddings and other social events in the barn.  The owners believed their use qualified the barn as agriculture under Ohio’s broad “agricultural exemption” from zoning authority.  The township thought differently, and claimed that the use was not agriculture and instead violated the township’s residential district zoning regulations.  The township sought an injunction to prevent weddings and events from taking place in the barn.

The Medina County Court of Common Pleas issued the injunction against Blueberry Barn, agreeing that the barn did not qualify for the agricultural exemption.   But the court later withdrew the injunction upon receiving evidence that Blueberry Barn had planted grape vines on the property.  Doing so constituted “viticulture” and fit the land use within the definition of “agriculture” for purposes of the agricultural exemption, the court determined.

On appeal, however, the Ninth District Court of Appeals concluded that the trial court should have examined whether the barn itself was being “used primarily for the purpose of vinting and selling wine.”  Ohio’s agricultural exemption prevents townships from using zoning authority to prohibit the use of land for “agriculture,” which includes viticulture, and also states that townships can’t prohibit the use of buildings or structures “used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture.…”  The appellate court said that a determination must be made at the trial level whether the wedding barn structure was “used primarily” for wine vinting and sales.

At its second trial court hearing, Blueberry Barn brought forth evidence that it produced and stored wine in the barn along with storing winemaking equipment.  Blueberry Barn also explained to the court that persons could only rent the wedding barn if they purchased wine from Blueberry Barn.  Based on this evidence, the trial court concluded that the primary use of the barn was for vinting and selling wine.  On a second appeal by the township, the Ninth District Court of Appeals agreed with the trial court’s judgment.  The township appealed yet again, this time to Ohio’s Supreme Court.

The issue before the Court focused on one word in the agricultural exemption:  primarily.  In order for the agricultural exemption to apply, the wedding barn must be used primarily for vinting and selling wine.  The agricultural exemption does not define the word primarily, so the Court looked to the ordinary dictionary meaning of the word “primary,” which is “of first rank, importance, or value.”  The Court reminded that whether a use is primary is a question of fact to be determined by the trial court.

The township argued that the trial court’s conclusion that vinting and selling wine was the primary use of the barn was incorrect, because only 4% of the barn’s physical space involved vinting and selling wine.  The Supreme Court disagreed with such a conclusion, and clarified that “primary” does not mean “majority.” The Court stated that the amount of space or time devoted to vinting and selling wine would not determine whether the use is “primary.”  It would not be unreasonable for a new winery producing limited quantities of wine in its early stages of production to use its barn space for other purposes, reasoned the Court.

One never knows when the Buckeyes will pop up in a conversation or even a court case, and it happened in this one.  In a teaching moment, the Supreme Court used Ohio Stadium to illustrate its interpretation of the word “primary.” It would be hard to argue that football is not the primary use of Ohio Stadium even if the stadium holds 20 events a year and only 7 of those events are for Buckeye football, the Court explained.  Additionally, the Court pointed to the fact that only those who purchased wine from Blueberry Barn could use the facility for weddings or events as further support for the trial court’s factual determination that wedding rentals contributed to the barn’s primary use of vinting and selling wine.  The Court affirmed the ruling in favor of Blueberry Barn, bringing an end to the six-year wedding barn controversy.

I’ve taught zoning law and Ohio’s agricultural exemption for many years.  One question I’ve received hundreds of times is this:  how do we know which use of a structure is “primary”?  The Court’s decision today sheds light on this seemingly minor but highly relevant question.  The answer is one that helps us interpret not only the “used primarily for vinting and selling wine” language in the agricultural exemption, but also relates to additional provisions that apply to “agritourism” structures.  Several references in the agricultural exemption prohibit zoning regulation over buildings “used primarily” for agritourism.  When next asked what “primary” means, I can now happily refer to the new “primary-use test” created today by the Supreme Court:  primary does not mean majority, but does mean of first rank, importance, or value.  That’s a primary contribution to Ohio’s agricultural zoning law.

Read the Ohio Supreme Court’s decision in Litchfield Twp. Bd. Of Trustees v. Forever Blueberry Barn, L.L.C. here.

What We’ve Been Up To: Factsheets on Reducing Risk in Agritourism

Agritourism continues to boom across the United States, with agritourism farms offering activities from apple picking to zip lining.  Literally A to Z.  Consumer interest in food and farming, along with an economic need to augment farm income through diversification, have combined to drive this boom.  As more farms delve into agritourism, their liability risks change.  Risk and liability are hard, if not impossible, to totally eliminate, but there are a number of steps that agritourism farms can take to reduce the chances of something bad happening.

Based upon the questions generated from our law bulletin on Ohio’s agritourism law, we wanted to take an in depth look at common legal issues and risks facing agritourism.  Created as part of a project for the Agricultural & Food Law Consortium, our new factsheet series does just that.  Specifically, these factsheets examine:

• Legal risks of animal and human interactions
• Selling food on the farm
• Agritourism immunity laws across the country
• Zoning laws across the country
• Insurance coverage for agritourism

Each factsheet addresses common considerations and questions about starting and operating an agritourism farm, and provides links to helpful resources.  The factsheets are designed to have something for everyone in the industry.  From those just thinking about implementing agritourism who need to think about the basic risks, to those agritourism farms that are already well established and want a risk refresher.  Beyond the industry, those professionals who advise agritourism farms may find the considerations helpful.

Most of the new factsheets include a checklist.  The checklists include questions that an agritourism farmer should ask their attorney, zoning inspector, insurance provider, local health department, and more.  The checklists do not represent the only legal concerns that an agritourism farm must think about, but rather a starting point.  Every agritourism farm is unique, and must be treated as such when examining liability and risk.

The reducing legal risk in agritourism project is available on our website HERE, as well as the National Agricultural Law Center’s website HERE.  This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.

Wedding Barns: Exempt from Township Zoning or Not?

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

The answer to the question in the title is still ‘it depends,’ but the answer is more likely yes when the barn is also a winery.  A recent court decision found that a barn in Medina County where weddings occur qualifies for the agricultural zoning exemption because of the barn’s use for wine production, marketing, and sales.

The decision represents the culmination of a battle between Medina County’s Litchfield Township and Forever Blueberry Barn, LLC that began in 2015.  The township filed suit that year, alleging that Forever Blueberry Barn was operating a rental facility for wedding receptions in violation of the township zoning ordinance.  At first, the trial court sided with the township and issued an injunction; however, Forever Blueberry Barn was able to lift that injunction by convincing the trial court that the agricultural zoning exemption’s vinting and viticulture provisions apply.

The first time the case went to the Ninth District Court of Appeals, the township won a brief victory when the appellate court ordered the trial court to review its decision and determine specifically whether or not the viticulture exception applied to the barn in question.  Essentially, the court of appeals believed that the trial court was convinced that the exemption should apply, but the trial court’s responsibility is to also explain why.

The second time on appeal, which resulted in the decision just recently issued, the Ninth District believed that the lower court appropriately examined and applied the agricultural zoning exemption’s vinting and viticulture provisions.  The Ninth District relied on case law from the Ohio Supreme Court instructing lower courts to “liberally construe” exemptions from restrictive zoning provisions.  The agricultural zoning exemption in Ohio Revised Code § 519.21 qualifies as an exemption from restrictive zoning provisions.  Specifically, it exempts “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.”  That case, which is cited as Terry v. Sperry, 2011-Ohio-3364, is available here.

One of the big issues the second time on appeal involved what is known as the burden of proof.  The township argued that the barn owner had to prove that the barn’s primary use was vinting and selling wine by clear and convincing evidence.  This is a fairly high standard in civil cases, and courts often reserve the higher standard for accusations of things such as fraud or breach of fiduciary duties.  Essentially, the township wanted to see receipts and written business plans that the barn owner did not have.

However, the court said that determining the barn’s primary use must only be proven by a preponderance of the evidence, which asks simply whether it is more likely that the barn was used primarily for vinting rather than for some other purpose.

Here, the court was persuaded by testimony of the barn’s owner that the barn was primarily used for vinting and selling wine.  The member’s testimony included statements that:

• Part of the barn will be used as a tasting room where wine will be sold directly to the public during established business hours;
• The barn itself may be rented out for private events, including weddings, on the condition that a certain quantity of wine is purchased for the event;
• Grapevines had been planted on the property and had started producing mature grapes.

As to this last point, the court noted that even one grapevine is sufficient to count as the growing of grapes.  The court again cited the Ohio Supreme Court’s Terry v. Sperry decision, which said that there is no minimum number of vines needed for a farm to qualify as engaging in viticulture.

It is important to note that this decision in Litchfield Twp. v. Forever Blueberry was not unanimous.  One judge dissented, believing that the primary use of the barn is as an event venue, with vinting activities being merely peripheral.  This dissent demonstrates the continued lack of a consensus on the application of this statute to wedding barns, even in cases with evidence of wine making activities.

What are our main takeaways from this case?

• There is still no consensus on whether wedding barns are exempt from township zoning.
• One producing grapevine can be sufficient to establish a viticulture activity.
• Renting out barns for events must still be secondary to the barn’s vinting use.

The case is cited as Litchfield Twp. Bd. of Trustees v. Forever Blueberry Barn, L.L.C., 2019-Ohio-322 (9th Dist.), and the full text of the decision is available here.

Addressing the Legal Side of Spring Agritourism Activities

Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

If you are an agritourism provider or are interested in learning more about agritourism, sign up for our AgritourismReady event on April 5^th!  Details of the event are here.

Spring has sprung and many agritourism providers are busy gearing up for spring agritourism activities such as maple syrup production, school tours, and berry picking. Agritourism providers should take time this spring to review the key elements of Ohio’s new agritourism law and understand how the law affects the agritourism operation.

Ohio’s new agritourism law applies to qualifying farms, including you-pick operations and farm markets, when an agritourism activity is conducted on that farm.  A qualifying farm under the law is either at least 10 acres in size or a farm under 10 acres that grosses an average income of $2500 from production (the same requirements for qualifying for Ohio’s CAUV property tax program).  Agritourism activities include agriculturally related educational, entertainment, historical, cultural, or recreational activities.  Below are two important benefits of Ohio’s agritourism law that agritourism providers should review this spring: liability protection and zoning protection.

Liability Protection

One of the main benefits of the law is liability protection for agritourism providers against claims by participants injured as a result of an inherent risk of an agritourism activity. The law defines inherent risks to be dangers and conditions that are an integral part of the activity, including surface and subsurface land conditions, actions of wild animals and domestic animals other than vicious or dangerous dogs, dangers of farm structures and equipment, illness from contacting animals, feed or waste, and the participant’s failure to follow instructions or use reasonable caution.

There are several limitations and requirements under the law that impact this liability protection. Most importantly, agritourism providers must post signs either at the entrance to the farm or at each agritourism activity in order to receive liability protection under the law.  The signs must meet the specifications of the law.  For more information about posting signs and the law’s liability protection, our previous post on agritourism is here.

Zoning

Ohio’s agritourism law also provides some zoning protections to agritourism providers. Under the law, township and county zoning authorities cannot prohibit agritourism activities on farms.  But, townships and counties can regulate some factors related to agritourism to protect public health and safety. These factors include the size of structures used primarily for agritourism, setbacks for structures, ingress and egress from the parcel, and the size of parking areas.  A township or county that wants to regulate these limited factors must have provisions addressing the factors in the local zoning code.  We explain the zoning provisions of the agritourism law in more detail in our law bulletin, here.

Preparing for the 2017 Season

As agritourism providers prepare for the 2017 season, providers should take a few actions to ensure the benefits of the agritourism law for their operations:

• Post the required signs at the entrance to the agritourism operation or at each agritourism activity. Also, consider adding your own signs to give instructions, guide visitors safely around the property or warn visitors of potential hazards.
• Even with the law’s liability protection, make sure the property is as safe and clean as possible.  Spring is a good time to walk the property to identify any dangerous conditions that might put a visitor at risk and fix those conditions before inviting guests on the property.
• Farms under 10 acres in size should take time to brush up on good recordkeeping practices. Farms that are under 10 acres may be required to prove that they qualify as a farm under the agritourism law by showing $2500 in gross receipts.  Be sure to maintain all records of farm income.
• If starting a new agritourism activity, check the local zoning code to see if the township or county has zoning requirements for the few agritourism factors it can regulate.  Be prepared for a visit by the local zoning inspector and be ready to show the inspector that the activity falls under the new agritourism law’s zoning protections because it is “agritourism” conducted on a “farm.”

A full description of the Ohio Agritourism Law is available via our law bulletin here.

Ohio Legislature Passes Agritourism Legislation

An agritourism bill first introduced over a year ago has finally received approval from the Ohio General Assembly. Visit our new blog site here to read this post.

Ohio Senate Introduces Agritourism Legislation

A new bill in the Ohio Senate addresses several legal issues for Ohio agritourism operators.  Senators Jones (R-Springboro) and Peterson (R-Sabina) introduced S.B. 334 on May 7.  The bill would impact Ohio agritourism operators in regards to civil liability, property taxation, zoning regulation and amusement ride standards.

To read this post, go to our new blog site at aglaw.osu.edu/blog.

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.

Ohio Supreme Court decides agricultural zoning case

Court rules in favor of Myrddin Winery

The Ohio Supreme Court has clarified how the “agricultural exemption” contained in Ohio zoning law applies to wineries.  The Court agreed with appellant Myrddin Winery in ruling today that Ohio law does not grant a township or county zoning authority over buildings or structures used for the vinting and selling of wine if they are on property used for viticulture, which is the growing of grapes. 

The case before the Court, Terry v Sperry, involved a Milton Township property  in northeast Ohio located in a district zoned as residential.  Prior to establishing the winery on the property, the Sperrys asked the township whether a winery was a permissible use of the property.  The township zoning inspector advised that the winery was an agricultral use that did not require a zoning permit pursuant to Ohio’s “agricultural exemption” from zoning.  The Sperrys proceeded to establish and operate Myrddin Winery, making wine from a small number of grape vines grown on the property and from grape concentrate purchased from other sources.  The Sperrys sold the wine, as well as food items, to customers who visited the winery. 

When the township later received complaints about the winery from neighbors, the township decided that the winery was no longer a permissible agricultural use.  Rather, the township claimed that the use constituted a restaurant and retail business that was not permitted in the residential zoning district.  The township sought an injunction to close down the winery.  The Sperrys argued that the township could not exert zoning authority over the winery because of the agricultural exemption in Ohio zoning law.

Both the Mahoning Court of Common Pleas and the Seventh District Court of Appeals agreed with the township, and held that it could exert zoning authority over the winery.  The courts examined the “agricultural exemption” contained in Ohio Revised Code Chapter 519, which limits township and county zoning authority over agricultural land uses.  The courts concluded that the agricultural exemption did not apply to Myrddin Winery because the winery did not fit within the statute’s definition of “agriculture.”  The definition includes “viticulture,” but also states that the processing and marketing of agricultural products are included in the definition of agriculture only if those activities are secondary to agricultural production.  Pointing to the small number of grape vines grown on the property, the township argued that the winery was not “agriculture” because the processing of grapes and marketing of wine were the primary uses of the property, and grape production itself was secondary to the processing and marketing activities. 

The Ohio Supreme Court disagreed that the statute’s definition of agriculture dictated the outcome of the case.  The Court turned instead to additional language regarding wineries contained inORC 519.21(A), another part of the agricultural exemption.  That provision states that a township has no power to prohibit the “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.”  (Emphasis added).   That provision, stated the Court, is a “clear and unambiguous” exemption from zoning authority for winery buildings, as long as grapes are also grown on the property.  Because of the unambiguous exemption, the township need not refer to the definition of “agriculture” or analyze the number of grapes or whether grape growing or processing and marketing are the primary uses of the property.

The Ohio Supreme Court’s decision in Terry v Sperry brings much needed clarification to Ohio’s agricultural zoning exemption, a complicated statute whose interpretation has long created headaches for local zoning officials.  When Ohio legislators granted zoning authority to townships and counties years ago, agricultural interests expressed concern that agricultural land uses would be “zoned out” of many rural areas.  The agricultural exemption addresses those concerns by limiting local zoning authority over agricultural land uses.  The problem arises with the statute’s attempt to determine what is or is not an agricultural land use.  The distinction is often muddy, but today’s decision provides some clarity:  in regards to buildings used for making and selling wine on property where wine grapes are growing, the township or county has no zoning authority.

Read the Terry v Sperry opinion here.