ohio agricultural exemption from zoning
Who knew wedding barns could lead us to the Ohio Supreme Court? Such is the case for a longstanding controversy over a barn in Medina County. Litchfield Township so opposed the use of the barn for weddings that it initiated a lawsuit and eventually appealed the case to Ohio’s highest court. In a unanimous decision issued today, the court ruled against the township and in favor of the wedding barn.
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 as agriculture under the agricultural exemption. But the court later withdrew the injunction upon receiving evidence that the owners of Blueberry Barn had planted grape vines on the property. Doing so constituted “viticulture," which is within the definition of “agriculture” for purposes of the agricultural exemption, the court determined.
On an appeal by the township, 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 and winemaking equipment in the barn. 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 us 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. The same concept applies to determining the primary use of a barn. 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 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.
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.
Does the law require a minimum amount of acreage for a landowner to engage in agricultural activities like raising crops, livestock or horses in Ohio? This is a common question I receive in the Farm Office. The answer is usually a simple "no," but the explanation is not exactly simple.
One situation where there could be a legal minimum acreage requirement is if land is within a municipality. Because cities, towns and villages have greater zoning authority than counties and townships in Ohio, they can prohibit agriculture altogether or establish regulations for agricultural activities such as minimum acreage requirements.
That's not the case when counties and townships have zoning. Their zoning regulations are subject to an Ohio law that largely exempts agricultural land uses from zoning--the "agricultural exemption." Unless a parcel is in what I call a "subddivision situation," county and township zoning can't prohibit or regulate agricultural land uses on that parcel. Within a platted residential subdivision or where there are 15 or more contiguous subdivided lots established outside of the platting process, county and township could use zoning to regulate certain agricultural activities on lots that are less than five acres. For example, zoning could regulate lots under one acre and could regulate animal husbandry activities, set back lines, and building sizes on lots between one and five acres.
But if a lot in a subdivision situation is over five acres, the agricultural exemption applies and a county or township can't regulate or prohibit agricultural activities on the lot. This means county or township zoning can't require a landowner to have at least two acres to raise cattle or horses, for instance, or to have at least five acres to plant an agricultural row crop. These types of requirements would be an attempt to regulate agriculture, and Ohio's agricultural exemption from zoning simply doesn't allow counties and townships to do so in those situations.
Note that Ohio's Current Agricultural Use Valuation (CAUV) law does establish a minimum acreage. CAUV is the program that allows qualifying property to be valued and taxed as agricultural rather than for its fair market value. Parcels must be either at least ten acres in size or produce an average annual gross income of $2500 from agriculture. The land must be dedicated to "commercial" agricultural activity to qualify for CAUV. Zoning regulations and CAUV eligibility are not related to one another but they likely lead to confusion on the issue of minimum acreage for agriculture.
For more on agriculture and zoning, see our Zoning Law shelf on theFarm Office Ag Law Library, here.