The summertime slowdown hasn't affected the number of agricultural law questions we've received from across Ohio. Here's a sampling of recent questions and answers:
Is a tree service business considered “agriculture” for purposes of Ohio rural zoning?
No, tree trimming and tree cutting activities are not listed in the definition of agriculture in Ohio’s rural zoning laws, although the definition does include the growing of timber and ornamental trees. The definition ties to the “agricultural exemption” and activities that are in the “agriculture” definition can be exempt from county and township zoning. Here is the definition, from Ohio Revised Code sections 303.01 and 519.01:
"agriculture" includes farming; ranching; algaculture meaning the farming of algae; aquaculture; apiculture; horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any combination of the foregoing; and the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production.
What are the benefits of being enrolled in the “agricultural district program” in Ohio, and is there a penalty for withdrawing from the program?
There are three benefits to enrolling farmland in the agricultural district program:
- The first is the nuisance protection it offers a landowner. A landowner can use the defense the law provides if a neighbor who moves in after the farm was established files a lawsuit claiming the farm is a “nuisance” due to noise, odors, dust, etc. Successfully raising the defense and showing that the farm meets the legal requirements for being agricultural district land would cause the lawsuit to be dismissed.
- The second benefit is that the law also exempts agricultural district land from assessments for water, sewer and electric line service extensions that would cross the land. As long as the land remains in agricultural district program, the landowner would not be subject to the assessments. But if the land is changed to another use or the landowner withdraws the land from the agricultural district program, assessments would be due. The assessment exemption does not apply to a homestead on the farmland, however.
- A third benefit of the agricultural district program law is that it requires an evaluation at the state level if agricultural district land is subject to an eminent domain action that would affect at least 10 acres or 10% of the land. In that case, the Director of the Ohio Department of Agriculture must be notified of the eminent domain project and must assess the situation to determine the effect of the eminent domain on agricultural production and program policies. Both the Director and the Governor may take actions if the eminent domain would create an unreasonably adverse effect.
As for the question about a withdrawal penalty, the law does allow the county to assess a penalty when a landowner withdraws land from the agricultural district program during the agricultural district enrollment period, which is a five-year period. If a landowner removes the land from the agricultural district, converts the land to a purpose other than agricultural production or an agricultural conservation program, or sells the land to another landowner who does not elect to continue in the agricultural district program, the landowner must pay a withdrawal penalty. The amount of the penalty depends on whether the land is also enrolled in the Current Agricultural Use Value program. See the different penalty calculations in Ohio Revised Code 929.02(D(1).
Read the agricultural district program law in Chapter 929 of the Ohio Revised Code and contact your county auditor to learn about how to enroll in the program.
My farmland is within the village limits and the village sent me a notice that I must cut a strip of tall grass on my land. Do I have to comply with this?
Yes. Ohio law allows a municipality such as a village to have vegetation, litter, and “noxious weeds” laws. These laws can set a maximum limit for the height of grass, require removal of litter on the property, and require ridding the land of “noxious weeds.” The purpose of the laws is to protect property values, protect public health by preventing pests and nuisances from accumulating, and keep noxious weeds from spreading to other properties. The village is within its legal authority to enforce its grass, litter, and noxious weeds laws on a farm property that is within the village limits. Failing to comply with an order by the village can result in a fine or financial responsibility for all expenses incurred by the village to remedy the problem.
Is it legal to pull water from a river or stream to irrigate land in Ohio?
Yes, as long as the withdrawal occurs on private land or with the consent of the public or private landowner. Registration with the Ohio Department of Natural Resources is required, however, if the amount withdrawn exceeds 10,000 gallons per day and the State has the ability to scale the 10,000 gallon amount back if the withdrawal is within an established groundwater stress area. Withdrawal registration information is available on the Division of Water Resources website.
Note that according to Ohio’s “reasonable use” doctrine, if a water withdrawal causes “unreasonable” harm to other water users, a legal action by harmed users could stop or curtail the use or allocate liability for the harm to the person who withdrew the water. To avoid such problems, a person withdrawing the water should ensure that the withdrawal will not cause “unreasonable” downstream effects.
An urban farmer wants to build a rooftop greenhouse to grow hemp and then wants to make and sell cannabis-infused prepared foods at a market on her property. Who regulates this industry and where would she go for guidance on legal and regulatory issues for these products?
Regulation and oversight of food products that contain cannabis is a combination of federal and state authority. Federal regulation is through the U.S. Food and Drug Administration and state regulation is via the Ohio Department of Agriculture’s Food Safety Division. She should refer to these resources:
- U.S. - https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd#legaltosell
- Ohio - https://agri.ohio.gov/divisions/food-safety/resources/Hemp-Products
As for the growing of hemp, the Ohio Department of Agriculture (ODA) regulates indoor hemp production in Ohio. There is a minimum acreage requirement for indoor production—she must have at least 1,000 square feet and 1,000 plants. See these resources from ODA:
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.
It’s time to round up another batch of legal Q&A. Here's a sampling of questions from around the state that we’ve recently received in the Farm Office.
My township recently notified me of having noxious weeds. They identified "ragweed" as the problem, but the Ohio Revised Code's list of noxious weeds doesn’t list "ragweed.” What are my rights? Under Ohio law, you have five days to respond to the township trustees to explain that no action need to be taken because no noxious weeds exist on the property and that plants were incorrectly identified as noxious weeds. Therefore, your conversations with the township trustees should have met the legal requirements because you notified them that plants were incorrectly identified as noxious weeds. Having a written record is always best, just in case there is ever a dispute, so you may want to follow up with the townships trustees in an email, just to confirm that no action need to be taken.
I read that each landowner has a ten foot right of access on either side of the fence row. How does that work? The ten foot right of access is for a situation where one neighbor hasn’t shared in the construction of the line fence. If a landowner chooses to build a line fence and the adjoining neighbor doesn’t share in the construction of the fence. Ohio Revised Code Section 971.08 allows the landowner to enter the neighbor’s property for up to ten feet for the length of the fence to build and maintain the fence. A landowner who stays within that ten feet strip cannot be held guilty for trespassing, but can be liable for any damages caused on the neighbor’s property, including damages to crops.
A neighbor is spraying herbicides on the fence row where an adjoining neighbor is raising organic livestock. Is there anything the livestock operator can do? There could be a spray drift issue if the herbicides are coming over onto the organic producer’s property. The most common legal action for dealing with spray drift is negligence, and another legal theory is trespass. If the drift causes harm, there would be a legal claim under either of those theories and the sprayer could be liable for harm caused by the drift. Before moving right to a lawsuit, however, a letter from an attorney that explains the potential liability for the drift could be helpful. Losing the organic certification would be costly, and an attorney would likely point that out. Those types of letters don’t take a lot of time and wouldn’t be as costly as filing a lawsuit. Additionally, the sprayer’s insurance policy might address negligence for spray drift and could provide a mechanism for compensation to the livestock producer.
We are in the process of buying a farm property to raise horses and relocate a small craft brewery to the location and grow hops and barley for the brewery. Can you provide information to help navigate the legal issues in doing this? Let’s start with two separate issues—the liquor licensing issue and the zoning issue. You may already know that Ohio has a relatively new licensing law that eases the liquor license process for small brewers—the A-1c license, explained at https://www.com.ohio.gov/liqr/permitclasses.aspx. That would allow you to brew and sell onsite if you meet the license requirements.
The zoning question is not as straightforward and instead is an “it depends” answer. Ohio zoning law does specifically exempt wineries from local zoning regulation, if the winery is growing grapes. There is not a similar specific exemption for breweries, though. In some situations, the agricultural exemption from zoning authority applies and prevents the township from prohibiting an agricultural use if it meets the definition of “agriculture.” Some of the activities you describe, growing hops and grains and raising horses, do fit within that definition. Processing and marketing activities, like making and selling beer on-site, only fit within that definition if they are “secondary to” the growing/production activities. Showing that the brewery would be a “secondary” use to the primary production activities could be difficult, and there aren’t clear standards on how to prove which is primary and which is secondary. Some townships have examined amount of the property dedicated to the different uses, some have examined financial returns of the different uses, some have looked at amount of time… it’s a bit gray and open to interpretation.
The other way to be exempt from zoning regulations would be to prove that the brewery is “agritourism.” This requires first showing that the activity is a cultural, recreational, entertainment or historic activity that is “agriculturally related” to the property and that the property qualifies as a “working farm” that is engaged in commercial agricultural production. Townships vary on how closely they examine these different components, but it seems that many are becoming more strict about what is and is not “agriculturally related” to the property. If none of the exemptions apply, whether you could engage in the land use would depend on your district zoning provisions. You’d want the zoning district to allow a brewery activity as a permitted use in the zoning district, or to be able to seek a “conditional use” permit for it.
If someone has a hornet’s nest in the yard in a neighborhood with a sidewalk, is there concern if the hornets were to attack someone walking by? This is one of those “maybe” answers. We don’t have clear legal guidance or court cases on liability for stings in Ohio, and my guess is that’s because the cases may settle out in the insurance process. The hornet nest, though, is probably a natural situation that is less likely to result in liability on the landowner’s part than a manmade condition, especially if the nest is out in the open and easily seen. The law expects people to bear responsibility to protect themselves from open and obvious natural dangers. However, the fact that the landowner knows it is there could be problematic given the neighborhood situation, as in “you should have done something about it because you knew people would be walking by,” especially if it’s not easy for passers-by to detect it or if the landowner knows someone in the neighborhood is allergic to bees. To avoid the risk of potential harm or problems, the landowner could consider either putting up a sign warning about the nest or have it removed. The cost of removal would probably be less than an injury claim or a lawsuit. The landowner may also want to talk with her insurance agent to see if there would be coverage for an incident—likely not, but it’s worth an ask. That might bring the landowner some peace of mind if he or she allows it to remain.
If you have an agricultural law question, send it to firstname.lastname@example.org and we'll do our best to provide an answer. We can't give you legal advice,of course, but we can explain the laws that apply to the situation. Also be sure to check for answers in our law bulletins on the Ag Law Library, here on the Farm Office website.
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.
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.
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.
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.
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.
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.
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.