ohio agricultural exemption from 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.