Tag Archives: agricultural zoning

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.

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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.

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Ohio Legislature May Reconsider CAUV Bill

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

The Ohio Legislature is once again considering a bill regarding Ohio’s current agricultural use valuation (CAUV) program. CAUV permits land to be valued at its agricultural value rather than the land’s market or “highest and best use” value. Senator Cliff Hite (R-Findlay) introduced SB 36 on February 7, 2017. The bill would alter the capitalization rate used to calculate agricultural land value and the valuation of land used for conservation practices or programs. The bill has yet to be assigned to a committee.

The content of SB 36 closely mirrors the language of a bill meant to address CAUV from the last legislative session: SB 246. Introduced during the 131st General Assembly, SB 246 failed to pass into law. SB 246 proposed alterations to the CAUV formula which are identical to those proposed by the current bill: SB 36. According to the Ohio Legislative Service Commission’s report on SB 246, the bill would have proposed changes that would have led to a “downward effect on the taxable value of CAUV farmland.” The likely effect for Ohio farmers enrolled in CAUV would have been a lower tax bill.

Due to the similarity between the two bills, the potential impacts of SB 36 on the CAUV program will likely be comparable to those of the previous bill. The proposed adjustment of the capitalization rate is likely to reduce the tax bill for farmers enrolled in CAUV. More specifically, the bill proposes several changes to the CAUV formula:

  • States additional factors to include in the rules that prescribe CAUV calculation methods. Currently, the rules must consider the productivity of the soil under normal management practices, the average price patterns of the crops and products produced to determine the income potential to be capitalized and the market value of the land for agricultural use. The proposed legislation adds two new factors: typical cropping and land use patterns and typical production costs.
  • Clarifies that when determining the capitalization rate used in the CAUV formula, the tax commissioner cannot use a method that includes the buildup of equity or appreciation.
  • Requires the tax commissioner to add a tax additur to the overall capitalization rate, and that the sum of the capitalization rate and tax additur “shall represent as nearly as possible the rate of return a prudent investor would expect from an average or typical farm in this state considering only agricultural factors.”
  • Requires the commissioner to annually determine the overall capitalization rate, tax additur, agricultural land capitalization rate and the individual components used in computing those amounts and to publish the amounts with the annual publication of the per-acre agricultural use values for each soil type.

To remove disincentives for landowners who engage in conservation practices yet pay CAUV taxes at the same rate as if the land was in production, the proposed legislation:

  • Requires that the land in conservation practices or devoted to a land retirement or conservation program as of the first day of a tax year be valued at the lowest valued of all soil types listed in the tax commissioner’s annual publication of per-acre agricultural use values for each soil type in the state.
  • Provides for recalculation of the CAUV rate if the land ceases to be used for conservation within three years of its original certification for the reduced rate, and requires the auditor to levy a charge for the difference on the landowner who ceased the conservation practice or participation in the conservation program.

To read SB 36, visit this page. For more information on previous CAUV bills, see our previous blog post.

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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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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.

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Agricultural zoning case will go to Ohio Supreme Court

Court has agreed to review appellate decision to close winery

A controversial split decision  on agricultural zoning from the Fifth District Court of Appealswill go before the Ohio Supreme Court.  The court has agreed to review Terry v. Sperry, 2010-Ohio-1299 (March 23, 2010), an appellate decision that endorsed a township’s desire to close down a winery in an exurban residential area.  The court agreed with the township’s assertion that Myrrdin Winery could not utilize Ohio’s “agricultural exemption” from township zoning authority because the winery imported more grapes than it grows on the premises and thus does not meet the statute’s definition of “agriculture.”  Because the winery did not qualify as “agriculture,”  the court held that the township could enjoin its operation.  We disagree with the court’s reliance on the definition of “agriculture” because the statute also includes specific exemption  language for wineries that bypasses the agriculture definition.  See our earlier post,  Ohio court allows township to use zoning to prohibit winery.

The Supreme Court’s decision to review the case should result in much needed clarification of township zoning authority over wineries, a recurring issue  in Ohio.   With more and more wineries developing in Ohio, many will be anxious for the Supreme’s Court’s interpretation of the statute.  The court should reach a decision in early 2011.

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Bill introduced to address on-farm bioenergy production

Proposal would ensure that on-farm bioenergy activities qualify for CAUV and are exempt from zoning regulation.

A legislative proposal in the Ohio House of Representatives would include on-farm bioenergy production activities in two key provisions of Ohio law:  qualification for differential tax assessment under the Current Agricultural Use Valuation program and exemption from local zoning authority.  Representatives Pryor and Domenick introduced  House Bill 485 in mid-April with assistance from the Ohio Department of Agriculture.  The bill was referred to the House Agriculture and Natural Resources Committee, but no other action on the bill has taken place.

The proposal addresses “biodiesel production, biomass energy production, electric or heat energy production and biologically derived methane gas production”  where at least 50% of the starting material or feedstocks are from the same tract, lot or parcel on which the energy production takes place.  This 50% requirement targets on-farm energy production, where a farm is producing and processing the energy inputs, as long as no more than 50% of the supplementary inputs derive from other properties.

The bioenergy production activities that meet the 50% rule would be included in the CAUV’ program’s definition of “land devoted exclusively to agricultural use” in ORC 5713.30, thus guaranteeing eligibility for the CAUV property tax rate.  The bioenergy production activities would also become part of the definition of “agriculture” for purposes of county and township zoning, ORC 303.01 and ORC 519.01.  Because counties and townships have  limited zoning authority over “agriculture,” the proposal would ensure that a county or township could not use zoning authority to prohibit the qualifying bioenergy production activities. 

H.B. 485 is available online, here.

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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.

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Township loses agricultural zoning appeal

A four year battle over the construction of a garden center has ended with an appellate decision affirming that the retail building is exempt from zoning under Ohio’s agricultural exemption provision in ORC 519.21.   The Second District Court of Appeals decided Siebenthaler Company v. Beavercreek Township on December 11, 2009.

The Siebenthaler Company constructed a building in 2006 on its 435 acre parcel in Beavercreek Township, Greene County.  Siebenthaler has grown trees, plants and flowers on the property since the 1950s.  The company planned the garden center for the sale and display of its nursery stock along with other products such as garden supplies and garden furniture.  The building would also contain a few offices, including one for providing landscaping services to its clients. 

The issue in this case is whether the garden center is exempt from township zoning authority pursuant to the  agricultural zoning exemption in ORC 519.   ORC 519.21(A) prevents township zoning officials from using their 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, 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).  Chapter 519 defines “agriculture” as “farming; ranching; 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; 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).

It seems apparent that Siebenthaler’s production activities fit within the definition of agriculture as the “production of nursery stock, trees anf flowers,” that its garden center also fits within that definition as the “marketing of agricultural products” conducted in conjunction with and secondary to such production, and that the building is “incident to an agricultural use of the land.”   Nevertheless, Beavercreek Township determined that the building did not qualify for the agricultural zoning exemption.  After detailing to the township why the agricultural zoning exemption applied, Siebenthaler constructed the garden center.  Upon the building’s completion, the zoning inspector issued a cease, desist and removal order based on Siebenthaler’s failure to obtain permits for the building.  Siebenthaler appealed to the township’s Board of Zoning Appeals, which upheld the zoning inspector’s order.  An appeal to the Greene County Court of Common Pleas yielded different results.  The court concluded that the garden center is incident to the primary use of the property for agriculture and therefore exempt from zoning regulation.  The township appealed the case to the court of appeals.

The court of appeals agreed that the agricultural zoning exemption applied to the garden center.  Evidence had indicated that the primary function of the garden center was to serve as an outlet for the agricultural products grown on the property, said the court.   To the contrary, the township produced no evidence suggesting that other activities, such as selling other products and offering landscaping services, were the primary activities or occupied a greater amount of time than agricultural production.  

In response to the Board of Zoning Appeals’ decision that the garden center “was not being used solely for a bonafide agricultural purpose,”  the court of appeals clarified that Ohio law does not require such.  Rather, the law requires that a structure only be “directly and immediately related”  and “usually or naturally and inseparably dependent upon” an agricultural use of the property.  Marketing activities may occur in conjunction with, and must be of lesser importance than, the agricultural production on the property, the court explained.

As of this date, there is no record of the township seeking review of the decision by the Ohio Supreme Court. 

The Siebenthaler case is one example of the tension that often exists between zoning officials and agricultural operations.  It’s difficult to understand why the Siebenthaler case progessed as far as it did, but many factors likely contributed to the situation:  the lack of clarity in ORC 519.21, the need to redefine “agriculture” in ORC 519.01, non-farm growth and development in traditionally agricultural areas, diversification of agricultural businesses, concerns for safety,  inadequate resources for zoning officials, property rights expectations, and of course, complete misunderstandings of the law.  Agriculture and local zoning authority is a continuing problem Ohio should address, first by identifying when incompatible land uses may occur and public health and safety may be at issue, second by revising our zoning laws to reflect the changes in agriculture and the rural landscape and last, through education.  

Watch for a few more agricultural zoning cases currently under consideration by Ohio courts.  The Second District’s opinion in Siebenthaler v. Beavercreek is available here.

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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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