Did you know that the loudest land animal is the howler monkey? The howler monkey can produce sounds that reach 140 decibels. For reference, that is about as loud as a jet engine at take-off, which can rupture your eardrums.
Like the howler monkey, we are here to make some noise about recent agricultural and resource law updates from across the country. This edition of the Ag Law Harvest brings you court cases dealing with zoning ordinances, food labeling issues, and even the criminal prosecution of a dairy farm. We then look at a couple states proposing, or disposing, of legislation related to agriculture.
A zoning ordinance has Michigan landowners hogtied. The Michigan Supreme Court recently ruled that Michigan’s 6-year statute of limitations does not prevent a township from suing a landowner for alleged ongoing zoning violations, even if the start of landowner’s alleged wrongdoing occurred outside the statute of limitations period.
Harvey and Ruth Ann Haney (“Defendants”) own property in a Michigan township that is zoned for commercial use. Defendants began raising hogs on their property in 2006. Defendants started with one hog and allegedly grew their herd to about 20 hogs in 2016. In 2016, Fraser Township (“Plaintiff”) filed suit against Defendants seeking a permanent injunction to enforce its zoning ordinance and to prevent Defendants from raising hogs and other animals that would violate the zoning ordinance on their commercially zoned property. Defendants filed a motion to dismiss and argued that Plaintiff’s claims were barred because of Michigan’s 6-year statute of limitations. A statute of limitations is a law that prevents certain lawsuits from being filed against individuals after a certain amount of time has passed. In Ohio, for example, if someone were to be injured in a car accident, they would only have 2 years to bring a personal injury claim against the person who caused the accident. That’s because Ohio has passed a law that mandates most personal injury claims to be brought within 2 years of the date of injury.
In the Michigan case, Defendants argued that because their first alleged wrongdoing occurred in 2006, Plaintiff could not file their lawsuit against the Defendants in 2016. A trial court disagreed with Defendants and denied their motion to dismiss. Defendants took the motion up to the Michigan Court of Appeals, and the Court of Appeals found that Plaintiff’s claim was barred because of the 6-year statute of limitations. Plaintiff appealed to the Michigan Supreme Court, which overturned the Court of Appeals’ decision and held that Plaintiff’s claim was not barred. The Michigan Supreme Court reasoned that the presence of the hogs constitutes the alleged unlawful conduct of the Defendants, and that unlawful conduct occurred in 2006 and has occurred almost every day thereafter. The court concluded that because Defendants unlawful conduct was ongoing after 2006, Plaintiff’s claims were not barred by the statute of limitations. The case now goes back to the trial court to be tried on the merits of Plaintiff’s claims against Defendants.
Where there’s smoke, there’s fire. Family Dollar Stores, Inc. (“Family Dollar”) has found itself in a bit of nutty situation. Plaintiff, Heather Rudy, has filed a class action lawsuit against Family Dollar, alleging that Family Dollar has misled her and other consumers by marketing its Eatz brand Smoked Almonds as “smoked.” Plaintiff asserts that Family Dollar is being deceptive because its Smoked Almonds are not smoked over an open fire, but instead flavored with a natural smoke flavoring. Plaintiff’s claims against Family Dollar include violating the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”); breaches of express warranty and implied warranty of merchantability; violation of the Magnuson-Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment.
Family Dollar filed an early motion to dismiss, arguing that Plaintiff has not stated a claim for which relief can be granted. A federal district court in Illinois dismissed some of Plaintiff’s claims but ruled that some claims against Family Dollar should be allowed to continue. Plaintiff’s claims for breaches of warranty, violation of the Magnuson-Moss Warranty Act, negligent misrepresentation, and fraud were all dismissed by the court. The court did decide that Plaintiff’s claims under ICFA unjust enrichment should stay. The court reasoned that Plaintiff’s interpretation that Family Dollar’s almonds would be smoked over an open fire are not unreasonable. Moreover, the court recognized that nothing on the front label of Family Dollar’s Smoked Almonds would suggest, to consumers, that the term “smoked” refers to a flavoring rather than the process by which the almonds are produced. The court even pointed out that competitors’ products contain the word “flavored” on the front of similar “smoked” products. Therefore, the court concluded that Plaintiff’s interpretation of Family Dollar’s Smoked Almonds was not irrational and her claims for violating the ICFA should continue into the discovery phase of litigation, and possibly to trial.
Undercover investigation leads to criminal prosecution of Pennsylvania dairy farm. A Pennsylvania Court of Appeals (“Court of Appeals”) recently decided on Animal Outlook’s (“AO”) appeal from a Pennsylvania trial court’s order dismissing AO’s petition to review the decision of the Franklin County District Attorney’s Office (“DA”) to not prosecute a Pennsylvania dairy farm (the “Dairy Farm”) for animal cruelty and neglect. An undercover agent for AO held employment at the Dairy Farm and captured video of the condition and treatment of animals on the farm, which AO claims constitutes criminal activity under Pennsylvania’s animal cruelty laws.
AO compiled a report containing evidence and expert reports documenting the Dairy Farm’s alleged animal cruelty and neglect. AO submitted its report to the Pennsylvania State Police (“PSP”) in 2019. The PSP conducted its own investigation which lasted for over a year, and in March 2020, issued a press release indicating that the DA would not prosecute the Dairy Farm.
In response, AO drafted private criminal complaints against the Dairy Farm and submitted those to the local Magisterial District Judge. The local Magisterial Judge disapproved all of AO’s complaints and concluded that the complaints “lacked merit.” AO then filed a petition in a Pennsylvania trial court to review the Magisterial Judge’s decision. The trial court dismissed AO’s petition and concluded that the DA correctly determined “that there was not enough evidence, based upon the law, to initiate prosecution against any of the Defendants alleged in the private criminal complaints.” AO appealed the trial court’s decision to the Court of Appeals which ended up reversing the trial court’s decision.
The Court of Appeals concluded that the trial court failed to view the presented evidence through a lens that is favorable to moving forward with prosecution and the trial court failed to consider all reasonable inferences that could be made on the evidence. The Court of Appeals observed that the trial court made credibility determinations of the evidence by favoring the evidence gathered by PSP over the evidence presented by AO. The Court of Appeals noted that a trial court’s duty is to determine “whether there was evidence proffered to satisfy each element of an offense, not to make credibility determinations and conduct fact-finding.” Additionally, the Court of Appeals found that the trial court did not do a complete review of all the evidence and favored the evidenced obtained by PSP over the evidence presented by AO. The Court of Appeals determined that had the trial court reviewed all the evidence, it would have found that AO provided sufficient evidence to establish prima facie cases of neglect and animal cruelty, which would have provided the legal basis for the DA’s office to prosecute the claims.
Lastly, the DA argued that no legal basis for prosecution exists because the Dairy Farm is protected by the normal agricultural operations exemption to Pennsylvania’s animal cruelty laws. However, the Court of Appeals found that the conduct of the Dairy Farm, as alleged, would fall outside the normal agricultural operations exemption because AO’s report demonstrates that the Dairy Farm’s practices were not the dairy industry norm.
Ultimately the Court of Appeals found that AO’s private criminal complaints did have merit and that the DA had enough evidence and a legal basis to prosecute AO's claims. The Court of Appeals remanded the trial court’s decision and ordered that the DA to go ahead and prosecute the Dairy Farm on its alleged animal cruelty violations.
Wyoming fails to pass legislation limiting what can be considered agricultural land. The Wyoming House of Representatives struck down a recent piece of legislation looking to increase the threshold requirement to allow landowners the ability to classify their land as agricultural, have their land appraised at an agricultural value, and receive the lower tax rate for agricultural land. Current Wyoming law classifies land as agricultural if: (1) the land is currently being used for an agricultural purpose; (2) the land is not part of a patted subdivision; and (3) the owner of the land derived annual gross revenue of $500 or more from the marketing of agricultural products, or if the land is leased, the lessee derived annual gross revenues of $1,000 or more from the marketing of agricultural products.
Wyoming House Bill 23 sought to increase the threshold amount of gross revenues derived from the marketing of agricultural products to $5,000 for all producers. The Wyoming Farm Bureau Federation and Wyoming Stock Growers associations supported the bill. Proponents of the bill argued that the intent of agricultural land appraisals is to support commercial agriculture, not wealthy landowners taking advantage of Wyoming’s tax laws. Opponents of the bill argued that House Bill 23 hurt small agricultural landowners and that the benefits of the bill did not outweigh the harms. House Bill 23 died with a vote of 34-25, failing to reach the 2/3 approval for bills to advance.
Oregon introduces legislation relating to overtime for agricultural workers. Oregon House Bill 4002 proposes to require agricultural employers to pay all agricultural employees an overtime wage for time worked over 40-hours in a workweek. House Bill 4002 does propose a gradual phase-in of the overtime pay requirements for agricultural employees. For the years 2023 and 2024, agricultural employees would be entitled to overtime pay for any time worked over 55 hours in a workweek. For 2025 and 2026, the overtime pay requirement kicks in after 48 hours. Then in 2027, and beyond, agricultural employers would be required to pay an overtime pay rate to employees that work more than 40 hours in a workweek.
Did you know that a group of ferrets is called a business? Ironically, we are in the business of ferreting out agricultural and resource law issues and providing you updates. This edition of the Ag Law Harvest provides an update on recent court decisions from across the country that deal with the right to farm, food labeling, and conditional use permits for solar gardens.
Right to Farm Act upheld in North Carolina. Earlier this month, a three-judge panel on the North Carolina Court of Appeals upheld the constitutionality of North Carolina’s right to farm law. In 1979, the North Carolina legislature enacted the Right to Farm Act (the “Act”). In 2017 and 2018 the North Carolina legislature amended the Act by passing House Bill 467 and Senate Bill 711 (collectively referred to as “the Amendments”). The Amendments sought to clarify and strengthen North Carolina’s right to farm law. The Plaintiffs argued that the Amendments violated North Carolina’s equivalent of the U.S. Constitution’s Fourteenth Amendment Due Process Clause and that the Act exceeded the scope of North Carolina’s police power. The Court of Appeals disagreed. The Court recognized North Carolina’s interest in promoting and preserving agriculture and that North Carolina has the authority to regulate such an interest. The Court found that the Act’s limitation on potential nuisance claims against those engaged in agriculture, forestry, and other related operations helps to protect North Carolina’s interest, and encourages North Carolina’s goal to encourage the availability and continued “production of food, fiber, and other products.” The Plaintiffs also argued that the Amendments were “private laws” to specifically protect the swine industry in violation of North Carolina’s Constitution. The Court found, however, that the Act and the Amendments are laws of general applicability that apply to all agricultural and forestry operations, not just swine producers. Lastly, the Plaintiffs argued that because the language in House Bill 467 limited the amount of compensation that can be recovered in a nuisance action against agricultural and forestry operations, the Plaintiffs’ right to a trial by jury had been impaired and/or abolished. The Court ruled, however, that North Carolina has the authority to “define the circumstances under which a remedy is legally cognizable and those under which it is not.” The Court found that there are many examples where compensation and remedies are limited within North Carolina law and that House Bill 467 did not “impair nor abolish the right to a jury trial.”
Where is the cacao? A California man (“Plaintiff”) is suing Costco Wholesale Corporation (“Costco”) for allegedly mislabeling Costco’s “Chocolate Almond Dipped Vanilla Ice Cream Bars” (the “Product”). Plaintiff argues that because of the Product’s packaging and name, he expected the Product’s chocolate would have been predominately derived from cacao beans. Plaintiff asserts that chocolate is defined by the Food and Drug Administration (“FDA”) and California law “as prepared from ground roasted cacao bean” and that it must be “made chiefly from cacao beans with a small amount of optional ingredients.” Based on this definition, Plaintiff claims that Costco’s packaging is misleading because the Product’s chocolate contains mostly vegetable oils and small amounts of ingredients derived from cacao beans. In his Complaint, Plaintiff argues that federal regulations require Costco to label the Product as “milk chocolate and vegetable oil coating” rather than just “chocolate.” However, the court found that neither of Plaintiff’s cited regulations support a viable theory of liability against Costco. First, the court could not find Plaintiff’s definition of chocolate anywhere in the Code of Federal Regulations. Secondly, the court held that there are no federal regulations that require a certain amount of cacao bean ingredients as opposed to vegetable oils to be used in “chocolate” and that there is no language mandating the labeling of Costco’s Product as “milk chocolate and vegetable oil coating almond dipped ice cream bars.” The court also dismissed Plaintiff’s claim that Costco engaged in consumer deception with its Product’s label. The court found that a reasonable consumer would not have been deceived by the Product’s label and that if there were any questions about the ingredients of the Product, a consumer could have resolved those questions by looking for the ingredients list on the back of the Product’s packaging.
Conditional use permits at the center of the Minnesota’s “solar system.” Move over Sun because conditional use permits are at the center of attention in Minnesota, for now. The Minnesota Court of Appeals has recently ruled against a county’s decision to deny two conditional use permits to build solar gardens in McLeod County, Minnesota. Two subsidiary companies of Nokomis Energy LLC (“Plaintiff”) each applied for a conditional use permit (“CUP”) to build separate, one-megawatt solar energy facilities. McLeod County considered the two CUP applications at public hearings. Two neighboring landowners expressed concerns about stray voltage and the number of fetal deaths among their livestock. The landowners claimed that the number of fetal deaths increased after other solar facilities were constructed nearby. Plaintiff did not deny that solar gardens can produce stray voltage but proposed to alleviate those concerns by hiring only licensed professionals and to allow third-party oversight during construction. Plaintiff also offered to conduct stray voltage testing before and after construction and indicated that it would accept any conditions set forth by county officials. The county, however, denied both applications on the basis that the proposed sites are “prime farmland” and because the stray voltage would negatively affect livestock. The court rejected the county’s assessment. First, the court held that preserving prime farmland is not a sufficient legal basis for denying a CUP. Second, the court ruled that the county cannot deny a CUP without first considering whether any proposed conditions would eliminate any concerns about the application. Here, the court found that McLeod County’s failure to address Plaintiff’s proposals to eliminate the stray voltage concerns amounts to an unjust denial of Plaintiff’s CUPs.
Thanks for reading and Happy New Year!
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.
I recall sharing my concern with a professor when I was in law school: how will I ever know all the answers to legal questions? No worries, he said. You can’t know the answer to every legal question, but you do need to know how to find the answers. I think of that advice often as legal questions come across my desk.
We’ve had a steady stream of them this summer, and the questions provide a snapshot of what’s going on around the state. Here’s a sampling of questions we’ve received recently, complete with our answers—some we knew and some we had to find.
What do you know about the $500 million to be set aside at USDA for meat processors—who will administer it and what is the timeline? USDA published a notice on July 16, 2021 titled “Investments and Opportunities for Meat and Poultry Processing Infrastructure” seeking input on how to allocate the funds. The notice solicits comments on how to address challenges and increase competition in meat and poultry processing through the $500 million in infrastructure and other investments. USDA is looking at current programs, combinations of programs, and potential programs that can leverage the funds to expand and diversify meat and poultry processing capacity and make the supply chain more resilient. A review of the questions USDA raised in the notice gives a good indication of the types of programs we might see, and administration of the programs could be at both the federal and state levels. The comments are due by August 30, 2021 and USDA will review them before moving forward. It will be at least several months before decisions are made and the funds are available.
If I enroll my land in the Wetlands Reserve Program, does the land still qualify for Current Agricultural Use Valuation tax treatment? Yes. Ohio’s CAUV law allows eligible land to be assessed as agricultural land for property taxation under the CAUV formula. Eligible land is “land devoted exclusively to agricultural use.” The definition of that term is important, and the relevant section that places wetlands and other conservation practices within that definition is ORC 5713.30(A)(1(c), which states that "land devoted exclusively to agricultural use" include tracts, lots, or parcels of land with at least ten acres which “were devoted to and qualified for payments or other compensation under a land retirement or conservation program under an agreement with an agency of the federal government.” According to court cases in Ohio, wetlands enrolled in federal conservation programs fit within this term and should qualify for CAUV treatment, even wetlands used as a mitigation bank. An Ohio Attorney General opinion disagrees that a wetlands mitigation bank is a government conservation program, but that is an advisory rather than binding opinion and a mitigation bank is not the same as the federal Wetlands Reserve Program.
Are there any special requirements for a cottage food producer for selling “gluten free” or “vegan” products? Yes. You need to ensure that you meet federal regulations to use “gluten free” terminology on your cottage food label. There isn’t a label review and approval process for using the language, though, as it’s “self-policing.” You must be sure that your product does not include any gluten containing ingredients. And because low levels of gluten could result from cross contamination in your kitchen, your product must be below the tolerance level of 20 ppm of gluten. There isn’t a testing requirement to prove that you’re under 20 ppm before you sell it, but if for some reason someone challenged your product or ODA randomly sampled it, it must meet the 20 ppm standard. You can have your food lab tested if you want to have that assurance. Otherwise, you should carefully manage your kitchen to reduce cross contamination. The FDA provides the gluten free labeling rule on its website and has a helpful FAQ page also. FDA has said it will be updating the gluten free rule, but I haven’t seen anything new yet.
Vegan labeling is a lesser regulatory concern. If you use that or related terms like “animal free” on your product, federal law requires that you be “truthful and not misleading” to the consumer. There isn’t a federal or state definition of “vegan” to help with that determination, but the agencies explain the term basically as not containing any animal products. Your ingredient list should confirm any vegan or animal free claims on the product.
Are there regulations pertaining to online sales of perennial plants? Yes. The seller must obtain a nursery license from the Ohio Department of Agriculture. The type of license will depend on their type of sales. A phytosanitary certificate might also be required by the importing states where their sales will take place; ODA also handles those certificates. Additionally, the seller will need to obtain a vendor’s license from the Department of Taxation to collect and submit sales tax on the plant sales.
Does a “Scenic River” designation by the Ohio Department of Natural Resources allow the agency to take my property that’s along the river? No. The language in the Scenic Rivers statute is misleading, as it states that “the area shall include lands adjacent to the watercourse in sufficient width to preserve, protect, and develop the natural character of the watercourse, but shall not include any lands more than one thousand feet from the normal waterlines of the watercourse unless an additional width is necessary to preserve water conservation, scenic, fish, wildlife, historic, or outdoor recreation values.” Without reading the entire statute, it does sound as though ODNR could be laying some type of claim to up to 1,000 feet of the lands adjacent to the river. However, further along in the statute is this language that prohibits the agency from having any authority over the private land: “Declaration by the director that an area is a wild, scenic, or recreational river area does not authorize the director or any governmental agency or political subdivision to restrict the use of land by the owner thereof or any person acting under the landowner's authority or to enter upon the land and does not expand or abridge the regulatory authority of any governmental agency or political subdivision over the area.” The designation is a declaration, and not a land claim, transfer of rights, or a taking. Additionally, my further research indicates that ODNR has never used eminent domain to take private property along a scenic river, nor does it have funding allocated from the legislature to purchase scenic river lands.
Do I need a license to make and sell egg noodles from the farm? Yes. Egg noodles don’t fall under Ohio’s Cottage Food Law, which allows you to make and sell certain low-risk “cottage foods” with little regulation or licensing requirements. Instead, producing egg noodles for sale from a home kitchen requires a home bakery registration. You obtain the registration from the Ohio Department of Agriculture’s Food Safety Division. It requires that you submit a request for inspection form, pass an inspection of the home, and submit a $10 fee. The inspection will confirm that walls, ceilings and floors are clean, easily cleanable and in good repair; the kitchen does not have carpeted floors; there are no pets or pests in the home; the kitchen, equipment and utensils are maintained in a sanitary condition; the kitchen has a mechanical refrigerator capable of maintaining 45 degrees and equipped with a thermometer; if the home has a private well, proof of a well test completed within the past year showing a negative test result for coliform bacteria; the food label meets labeling requirements.
Is raising and training dogs considered “animal husbandry” for purposes of d the agricultural exemption from township zoning authority? Yes. The Ohio Supreme Court held in Harris v. Rootstown Twp. that “the raising and care of dogs constitutes animal husbandry and is included in the term “agriculture” within the meaning of R.C. 519.01.” This means that the agricultural exemption in Ohio Revised Code 519.21 applies to raising and caring for dogs, and township zoning can’t prohibit the use of any lot over five acres for those purposes. The township would have limited regulatory authority over dog raising on smaller lots in some situations, though. There is often confusion among townships over how to classify dogs, and that may be because they differ from what we typically think of as “farm animals.” But the Rootstown Twp. case, along with many other appellate level cases in Ohio, confirm that dogs are to be treated the same as “livestock” for purposes of the agricultural exemption from zoning.
Can both landowners be assessed half the cost of removal of noxious weeds that are growing in a partition fence? Maybe. The Ohio line fence law does allow a township to step in and clear the fence row of noxious weeds, brush, briers and similar vegetation if a complaint is filed by one landowner against an adjacent landowner who refuses to clear the weeds. The costs for doing so are assessed back on the refusing landowner whose fence row was cleared. If the noxious weeds arise from both sides of the fence, are growing in the fence, and must be cleared from both sides of the fence, the township trustees would have the authority to assess the costs of removal back on both landowners. I’ve never heard of that happening, but it’s certainly one of those “be careful what you wish for” situations.
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.
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.
Written by: Ellen Essman and Peggy Hall
October is almost over, and while farmers have thankfully been busy with harvest, we’ve been busy harvesting the world of ag law. From meat labeling to RFS rules to backyard chickens and H-2A labor certification, here’s our latest gathering of agricultural law news you may want to know:
Federal judge upholds Missouri’s meat labeling law—for now. Missouri passed a law in 2018, which among other things, prohibited representing a product as “meat” if it is not derived from livestock or poultry. As you can imagine, with the recent popularity of plant-based meat products, this law is controversial, and eventually led to a lawsuit. However, U.S. District Judge Fernando Gaitan Jr. decided not issue a preliminary injunction that would stop the Missouri Department of Agriculture from carrying out the labeling law. He reasoned that since companies like Tofurky, who brought the suit, label their products as plant-based or lab-grown, the law does not harm them. In other words, since Tofurky and other companies are not violating the law, it doesn’t make sense to stop enforcement on their account. Tofurky, the American Civil Liberties Union, and the good Food Institute have appealed Judge Gaitan’s decision, asserting that Missouri’s law infringes upon their right to free speech. This means that the Missouri law can be enforced at the moment, but the decision is not final, as more litigation is yet to come.
Oregon goes for cage-free egg law. In August, Oregon passed a new law that would require egg-laying chickens, turkeys, ducks, geese, or guinea fowl to be kept in a “cage-free housing system.” This law will apply to all commercial farms with more than 3,000 laying hens. A cage-free housing system must have both indoor and outdoor areas, allow the hens to roam unrestricted, and must have enrichments such as scratch areas, perches, nest boxes and dust bathing areas. As of January 1, 2024, all eggs sold in the state of Oregon will have to follow these requirements for hens. The law does allow hens to be confined in certain situations, like for veterinary purposes or when they are part of a state or county fair exhibition.
City can ban backyard chickens, says court. The Court of Appeals for Ohio’s Seventh District upheld the city of Columbiana’s ordinances, which ban keeping chickens in a residential district, finding that they were both applicable to the appellant and constitutional. In this case, the appellant was a landowner in Columbiana who lived in an area zoned residential and kept hens in a chicken coop on his property. The appellant was eventually informed that keeping his hens was in violation of the city code. A lawsuit resulted when the landowner would not remove his chickens, and the trial court found for the city. The landowner appealed the trial court’s decision, arguing that he did not violate the city ordinances as they were written, and that the city applied the ordinances in an arbitrary and unreasonable way because his chickens did not constitute a nuisance. Although keeping chickens is not explicitly outlawed in Columbiana, the Court of Appeals for Ohio’s Seventh District found that reading the city’s zoning ordinances all together, the “prohibition on agricultural uses within residential districts can be inferred.” Furthermore, the court pointed out that the city’s code did not ban chickens in the whole city, but instead limited them to agricultural districts, and that the prohibition in residential areas was meant to ensure public health. For these reasons, the court found that the ordinances were not arbitrarily and unreasonably applied to the appellant, and as a result, the ordinances are constitutional. To read the decision in its entirety, click here.
EPA proposes controversial Renewable Fuel Standard rule. On October 15, EPA released a notice of proposed rulemaking, asking for more public comment on the proposed volumes of biofuels to be required under the Renewable Fuel Standard (RFS) program in 2020. The RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel” and other fuels. Renewable fuels include biofuels made from crops like corn, soybeans, and sugarcane. In recent years, the demand for biofuels has dropped as the Trump administration waived required volumes for certain oil refiners. The administration promised a fix to this in early October, but many agricultural and biofuels groups feel that EPA’s October 15 proposed rule told a different story. Many of these groups are upset by the proposed blending rules, claiming that way the EPA proposes calculate the biofuel volumes would cause the volumes to fall far below what the groups were originally promised by the administration. This ultimately means the demand for biofuels would be less. On the other hand, the EPA claims that biofuels groups are misreading the rule, and that the calculation will in fact keep biofuel volumes at the level the administration originally promised. The EPA plans to hold a public hearing on October 30, followed by a comment period that ends November 29, 2019. Hopefully the hearing and comments will help to sort out the disagreement. More information is available here, and a preliminary version of the rule is available here.
New H-2A labor certification rule is in effect. The U.S. Department of Labor has finalized one of many proposed changes to the H-2A temporary agricultural labor rules. A new rule addressing labor certification for H-2A became effective on October 21, 2019. The new rule aims to modernize the labor market test for H-2A labor certification, which determines whether qualified American workers are available to fill temporary agricultural positions and if not, allows an employer to seek temporary migrant workers. An employer may advertise their H-2A job opportunities on a new version of the Department’s website, SeasonalJobs.dol.gov, now mobile-friendly, centralized and linked to third-party job-search websites. State Workforce Agencies will also promote awareness of H-2A jobs. Employers will no longer have to advertise a job in a print newspaper of general circulation in the area of intended employment. For the final rule, visit this link.
And more rules: National Organic Program rule proposals. The USDA has also made two proposals regarding organic production rules. First is a proposed rule to amend the National List of Allowed and Prohibited Substances for organic crops and handling. The rule would allow blood meal made with sodium citrate to be used as a soil amendment, prohibit the use of natamycin in organic crops, and allow tamarind seed gum to be used as a non-organic ingredient in organic handling if an organic form is not commercially available. That comment period closes on December 17, 2019. Also up for consideration is USDA’s request to extend the National Organic Program’s information collection reporting and recordkeeping requirements, which are due to expire on January 31, 2020. The USDA’s Agricultural Marketing Service specifically invites comments by December 16, 2019 on: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Great Lakes restoration gets a boost from EPA. On October 22, 2019, the EPA announced a new action plan under the Great Lakes Restoration Initiative (GLRI). The plan will be carried out by federal agencies and their partners through fiscal year 2024. Past GLRI action plans have removed environmental impairments on the lakes and prevented one million pounds of phosphorus from finding its way into the lakes. The plans are carried out by awarding federal grant money to state and local groups throughout the Great Lakes, who use the money to carry out lake and habitat restoration projects. Overall, the new plan’s goals are to remove toxic substances from the lakes, improve and delist Areas of Concern in the lakes, control invasive species and prevent new invasive species from entering the lakes, reduce nutrients running off from agriculture and stormwater, protect and restore habitats, and to provide education about the Great Lakes ecosystem. You can read EPA’s news release on the new plan here, and see the actual plan here. We plan to take a closer look at the plan and determine what it means for Ohio agriculture, so watch for future updates!
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 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.