agricultural exemption
Applying Ohio’s “agricultural exemption” from zoning is a constant challenge for county and township zoning officials. A township in Logan County faced that challenge when a landowner claimed its composting facility to be an agricultural land use that is exempt from township zoning authority. After obtaining a composting permit from the Ohio EPA, the landowner established the compost facility, despite the township’s disagreement that the facility qualified for the “agricultural exemption.”
When there is uncertainty about the meaning or application of a law such as the Logan County zoning situation, Ohio law allows a county prosecutor to request a legal opinion from the Ohio Attorney General (Ohio AG). That’s exactly what the Logan County Prosecuting Attorney did, directing four questions to the Ohio AG that relate to how township zoning regulations, the agricultural exemption, and state permitting laws apply to the compost facility. The Ohio AG’s resulting opinion offers helpful guidance for rural zoning officials who face the challenge of understanding whether a land use is an agricultural land use that is exempt from zoning. It also provides an explanation of the relationship between state issued permits and local zoning authority.
Here’s a summary of the Ohio AG’s response to the questions the Logan County prosecutor raised.
1. Is a compost facility considered “agriculture” that is exempt from township zoning under the agricultural exemption, and if not, is it subject to township zoning?
Logan County didn’t receive a definitive answer to this question. Instead, the Ohio AG explained that it does not have the authority to answer a question of fact. It is the township zoning officials who must determine whether land is “agriculture” for purposes of the agricultural exemption, based upon the facts of the specific situation. In doing so, the township may exercise its discretion and examine any factors necessary and relevant to making its decision, including the nature and character of all activities conducted on the land as well as activities to prepare an agricultural product that are not conducted on the land at issue, and the township’s decision is subject to judicial review.
The Ohio AG did, however, provide a useful summary of the agricultural exemption provisions in Ohio Revised Code sections 519.01 and 519.21, which apply to townships, as follows:
- ORC 519.01 provides a definition of “agriculture” as “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.”
- The opinion explained that the terms “in conjunction with” and “secondary to” in the emphasized language above carry common meanings: “in conjunction with” means “occurring together” and “secondary to” means “of second rank, importance or value.” Because “composting” is not specifically listed in the agriculture definition, it must be done “in conjunction with” and “secondary to” the production of the agricultural products used for the composting. The Ohio AG stated that, “If the composting facility is located on land that does not engage in agri-cultural activity, composts agricultural products that are not produced on its premises, or does not use the compost on its premises, then the composting facility is likely not “agriculture” pursuant to R.C. 519.01.”
- ORC 519.21(A) contains the limitation on power that is the agricultural exemption: “the Revised Code confers 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 . . . and no zoning certificate shall be required for any such building or structure.”
- The Ohio AG explained that taken together, ORC 519.01 and ORC 519.21(A) require that land on which the secondary agricultural activities of processing, drying, storage, and marketing of agricultural products occurs or land on which a building or structure is located must “be primarily used for an agricultural purpose to qualify for an exemption from the township zoning resolutions.” Conversely, agricultural activities that are merely an accommodation to a business are not “agriculture” under ORC 519.01 and could be regulated as a commercial use under township zoning regulations.
2. Can township zoning resolutions regulate composting facilities by considering such as a “conditional use” if the zoning resolution does not explicitly address composting as a permitted or conditional use?
A simple explanation by the Ohio AG answered this question. According to Ohio law, A township may only regulate a non-agriculture composting facility as a conditional use if the township zoning resolution includes composting or solid waste facilities as permitted conditional uses in the applicable zoning district.
3. What recourse does a township have if a composting facility claims to be exempt from zoning due to the agricultural exemption, even though composting is not included in the agricultural exemption statute?
For a violation of a zoning resolution or a question regarding the interpretation of a township zoning resolution, the Ohio AG explained that a township may choose to utilize the remedies outlined in ORC 519.23 and ORC 519.24. Those remedies include a criminal cause of action and fines or an action to enjoin or abate a violation.
4. Does a township have any recourse if the Ohio Environmental Protection Agency (Ohio EPA) issues a permit for a composting facility when a property owner failed to secure a local zoning permit?
In response to this question, the Ohio AG explained that while some laws do preempt local authority over a land use, the state solid waste laws do not “supersede the authority of a township to enact zoning regulations.” This means that a township is not required to permit a facility simply because the Ohio EPA issues a permit for it. The Ohio AG concluded that if a township determines that a composting facility is not “agriculture” and not exempt from zoning under the agricultural exemption, that facility then would be subject to the township zoning regulations and Ohio EPA composting facility regulations.
Read Ohio Attorney General Opinion No. 2024-004 in the Opinions Database on the Ohio Attorney General’s website.
Tags: Zoning, agricultural zoning, agricultural exemption, compost
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Yes, you read it right: our roundup of agricultural law questions includes a question on popcorn--not one we often hear. Below is our answer to it and several other legal questions we’ve recently received in the Farm Office.
A farm lease landlord didn’t notify a tenant of the intent to terminate a verbal farm lease before the new September 1 deadline. What are the consequences if the landlord now tries to enter into a new lease agreement with another tenant operator?
Ohio’s new “statutory termination law” requires a landlord to provide written notice of termination of a verbal farmland lease by September 1 of the year the lease is effective. The law is designed to prevent a tenant from losing land late in the leasing cycle, after the tenant has made commitments and investment in the land. The new law now establishes September 1 as the deadline for a valid termination, unless a lease provides otherwise. If a landowner terminates after September 1, the consequences are that a tenant could either try to force continuation of the lease for another lease period or seek damages for the late termination. Those damages could include reimbursement for work already completed, such as fall tillage, nutrient applications, and cover crops; reimbursement for input costs such as seed and fertilizer that tenant cannot use or return; and lost profits from the tenant's loss of the crop. Find our law bulletin on the new statutory termination date for farm leases on the Farm Office website.
A farmer plans to build a barn and grain bins close to the property line of a neighbor. Does the neighbor have a legal right to stop the farmer from building so close to the boundary?
No, probably not. Because the neighbor lives in a rural area, Ohio’s “agricultural exemption” from local zoning regulations applies to the situation. The agricultural exemption law states that except in limited circumstances, agricultural land uses and structures used for agriculture, like barns, are not subject to township or county zoning regulations and building permit requirements. If this township has building setback requirements in its zoning resolution, for instance, the farmer is not subject to the regulations and can build the barn closer to the property line than the setback provisions require and farmer is not required to obtain a zoning or building permit for the barn. One exception is that if the farmer’s land is less than five acres and is one of at least 15 lots that are next to or across from one another, the agricultural exemption would not apply to the farmer's land. Find the agricultural exemption from zoning in Ohio Revised Code 519.21.
In replacing a line fence, a landowner entered a neighbor’s property and cleared 10 feet from the fence of all brush and trees, even though the neighbor warned the landowner not to do so. Did the landowner have a right to cut and remove the neighbor’s trees and vegetation?
No. Ohio law in Ohio Revised Code 971.08 does allow a person to enter up to 10 feet of an adjacent neighbor’s property for the purpose of building or maintaining a line fence, but it is only a right of entry for the purpose of working on the fence. It allows a person to access the neighbor's property without fear of legal action for trespass. But the law does not allow a person to remove trees or vegetation within the 15 foot area. In fact, the law specifically states that a person will be liable for any damages caused by the entry onto the neighbor’s property, including damages to crops. Additionally, since the neighbor stated that the trees should not be removed and the landowner removed them anyway, the landowner could be subject to another Ohio law for “reckless destruction” of trees and vegetation. That law could make the landowner liable for three times the value of the trees that were removed against the neighbor’s wishes. Find the reckless destruction of vegetation law in Ohio Revised Code 901.51.
Would a milk contamination provision in an insurance policy address milk that could be contaminated as a result of the East Palestine train derailment?
Probably not. Milk contamination coverage provisions in a dairy's insurance policies typically only apply to two situations: unintentional milk contamination by the dairy operator and intentional contamination by a party other than the dairy operator. Contamination resulting from an unintentional pollution incident by a party other than the dairy operator would not fit into either of these situations. But insurance policies vary, so confirming a farm’s actual policy provisions is important when determining insurance coverage.
A grower of popcorn wants to process, bag, and ship popcorn. Does the grower need any type of food license?
No. Popcorn falls under Ohio’s “cottage food law.” Popcorn is on the list of “cottage foods” identified by the Ohio Department of Agriculture (ODA) as having lower food safety risk than "potentially hazardous foods." A producer can process and sell a cottage food without obtaining a food license from the ODA or the local health department. However, the producer may only sell the food within Ohio and must properly label the food. Labeling requirements include:
- Name of the food product
- Name and address of the business of the cottage food production operation
- Ingredients of the food product, in descending order of predominance by weight
- Net weight and volume of the food product
- The following statement in ten-point type: "This product is home produced."
Read our law bulletin on Ohio’s Cottage Food Law on the Farm Office website.
Tags: farm lease, statutory termination, line fences, trees, Zoning, agricultural exemption, dairy, Insurance, popcorn, cottage foods
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Let’s hope the marriages that began at Stoney Hill Farm in southwestern Ohio fare better than the wedding barn where they started. Yet another lawsuit over the Stoney Hill wedding barn has ended in an adverse ruling for the owner. The Second District Court of Appeals recently upheld a permanent injunction that for now, prevents the owner from renting the barn for weddings and other events.
The case highlights the continuing conflicts across Ohio over what to do with wedding barns on farms. Should wedding barns be subject to local zoning and state building and fire codes? Or should wedding barns qualify for the exemptions from zoning, building, and fire codes Ohio law provides for agricultural types of land uses? It’s a question that has often ended up in court, as the statutory zoning exemptions for agriculture and agritourism in Ohio law are unclear and require judicial interpretation.
How we got here
The legal battles against Powlette, the owner of Stoney Hill Farm, started in 2018. The owner constructed a new two-story, 8,000 square foot barn on 26 acres he had purchased in Miami Township. Declaring that the barn would be used for the agricultural purpose of housing horses, Powlette received an exemption from local zoning regulations for the barn. That’s because Ohio’s “agricultural exemption” removes township zoning authority from agricultural land uses and structures to ensure that agriculture can take place in Ohio’s unincorporated areas.
But when Powlette later advertised the barn as Stoney Hill Rustic Weddings and began using it to host weddings and events, the township filed a notice of zoning violation. The township’s zoning resolution did not permit those types of uses in Powlette’s zoning district. The Board of Zoning Appeals and Montgomery County Court of Common Pleas reviewed the facts and determined Powlette was using the barn not just for agriculture but as a place of “public assembly,” in violation of zoning regulations.
Powlette then planted grapevines on the property and began making wine, claiming those activities allowed him to continue using the barn under another part of the agricultural exemption. That part gives zoning and building code exemptions for buildings that are used primarily for vinting and selling wine that are on land where there is viticulture, the growing of grapes. The township again disagreed that Powlette could host weddings and events in the barn and sought a permanent injunction against its continued use. The Montgomery Township Common Pleas court reviewed Powlette’s use of the barn and determined that the winery-based zoning exemptions did not apply or allow him to hold weddings and events. The trial court issued a permanent injunction, preventing Powlette from renting, leasing, or operating weddings, receptions, parties, or other celebratory events in the barn for a fee. Powlette appealed the injunction to the Second District Court of Appeals, which brings us to the court’s decision on September 30, 2022.
As a side note, the Montgomery Court of Common Pleas fined Powlette $50,000 last month for continuing to hold weddings in the barn despite the permanent injunction issued by the court. Powlette’s response is that he is not in violation of the injunction since he no longer charges a fee for the weddings. He claims an Ohio Supreme Court case allows him to have free weddings for guests who purchase his wine.
Additionally, note that there have been several other legal actions against Powlette from the Montgomery County Board of Building Regulations and the Fire District for building code and fire code violations, also based on the use of the structure for weddings and events and also resulting in rulings against Powlette. And public attention has been high, with television and newspaper reporters covering the township and neighborhood conflicts over the late night, noisy wedding parties at Stoney Hill.
The Court of Appeals decision
The question Powlette raised with the Court of Appeals in the recent case is whether the Montgomery County Common Pleas court properly granted the permanent injunction. Powlette maintains that the trial court erred by failing to find that the Stoney Hill barn is used for agriculture or agritourism, which would exempt the structure from zoning. The appellate court reviewed the trial court’s finding that the only agricultural use in the barn was the storing of hay in the upper level of the barn, which also contained outdoor decks, decorative windows, chandeliers, two restrooms, a staging area for bridal parties, a prep area with cabinets and a refrigerator, and electrical, heating and cooling systems. The evidence indicated, however, that the hay was stored in the barn for use as decorations or seating and not as animal feed. The court did not see error in the trial court’s conclusion that the barn was constructed for events and not for an agricultural purpose.
The appellate court also agreed that the wedding barn should not be exempt from zoning as agritourism. Ohio law defines agritourism as an agriculturally related educational, cultural, historical, entertainment, or recreational activity on a farm. Powlette argued that wedding guests were educated about agriculture, were entertained by interacting with animals and taking wagon rides, that rural weddings are historical and cultural events, and that gathering for a rural wedding in a recreational event. However, the court questioned how those activities were “agriculturally related.” With little explanation, the court stated that it could not see any connection between the wedding venue in the second story of the barn and any agricultural activities occurring on the property. “Instead, the barn was built in order to serve as an event venue in a rural, agricultural setting,” the court concluded.
The court also disagreed with Powlette’s second argument against the trial court, that the permanent injunction it granted was overbroad and foreclosed him from any future activities that would qualify as agritourism. Quickly dispensing with that argument, the court stated that Powlette could request that the injunction be dissolved if he properly engaged in an exempt agricultural use, such as establishing a vineyard and vinting operation as the primary use of the barn.
What now for wedding barns?
Given that Powlette has begun planting grapes and making wine, a request to dissolve the injunction against him may be the next step of the Stoney Hill wedding barn story. But the bigger questions remain: should wedding barns like Stoney Hill be exempt from zoning oversight? Should an owner be permitted to build or renovate a barn for weddings and events in any rural area, or should local zoning be able to regulate where wedding barns can be? For now, the answer from the Second District Court of Appeals is clear: barns built to serve as wedding venues aren’t agriculturally related to the land, don’t have an agricultural purpose, and should not be exempt from zoning. But like marriage, the future of whether wedding barns are subject to rural zoning in Ohio could be subject to change.
Read the court's decision in Miami Twp. Bd. of Trustees v Powlette.
Tags: wedding barns, agricultural zoning, Zoning, agritourism, Stoney Hill, agricultural exemption
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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.
Tags: agritourism, wedding barns, Zoning, agricultural exemption
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