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Can Ohio townships use their zoning authority to regulate outdoor signs on agricultural property? This is a question I've received many times. I can now refer townships to legal guidance provided by the Ohio Attorney General in an opinion issued October 20, 2009 (OAG 2009-041). The OAG opinion walks us through an analysis of the persistently problematic Ohio Revised Code section 519.21, commonly referred to as the 'agricultural zoning exemption,' which states that townships may not use their zoning 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," with a few exceptions.
The OAG opinion provides the following explanation of how the agricultural exemption applies to an outdoor sign on agricultural property:
"1. Pursuant to R.C. 519.21(A), officials of a township that has not adopted a limited home rule government under R.C. Chapter 504 may not regulate the location, height,bulk, or size of a fee-standing outdoor sign that is located on a lot greater than five acres and deemed to be a structure when the use of the sign relates directly and immediately to the use for agricultural purposes of the lot on which the sign is located.
2. The use of a free-standing outdoor sign is directly and immediately related to the use for agricultural purposes of the lot on which the sign is located when the sign advertises the sale of agricultural products derived from the lot on which the sign is located.
3. The use of a free-standing outdoor sign is not directly and immediately related to the use for agricultural purposes of the lot on which the sign is located when the sign advertises the sale of (1) agricultural products not derived from the lot on which the sign is located or (2) things other than agricultural products.
4. Township officials may consider any information or facts they deem necessary and relevant in order to determine in a reasonable manner whether the use of a free-standing outdoor sign is directly and immediately related to the use for agricultural purposes of the lot on which the sign is located or an attempt to promote an activity that is not conducted in conjunction with, and secondary to, the production of the agricultural products derived from the lot on which the sign is located."
Note that the opinion pertains only to townships that have not adopted a limited home rule form of government--most of our townships have not taken the action necessary to adopt limited home rule powers. The opinion also notes that the 'farm market exception' may provide townships with limited authority to regulate outdoor signs, and that a different outcome could result for regulation of lots less than five acres in a subdivision setting.
The OAG's guidance is consistent with the history of the agricultural exemption and the many court cases that have interpreted the law. When the Ohio legislature gave townships zoning authority over 50 years ago, it tried to ensure that townships would not "zone out" all agricultural land uses in rural areas. The legislature's foresight on the issue of agricultural land use was remarkable, but their statutory language has yielded uncertainty and confusion. The OAG's opinion attempts to clarify some of that language, but the opinion forces townships into a careful analysis of each individual situation that may prove difficult and problematic for zoning officials.
The opinion itself recognizes the challenges posed by a "mixed use" situation, where the sign includes multiple products or partial products--some that derive from the property and others that do not, or promotes an activity related to the property's agricultural use. The Attorney General doesn't resolve this problem, but defers to the townships on these types of situations. The opinion states that when addressing these situations, township officials may consider "any information or facts they deem necessary and relevant in order to determine in a reasonable manner whether the use of an advertising device is drectly and immediately related to the use for agricultural purposes of the lot on which the device is located," or conversely is an "attempt to promote an activity that is not conducted in conjunction with and secondary to the production of the agricultural prouducts derived from the lot." Once again, township zoning officials may find themselves in a state of uncertainty over how or whether to regulate a land use on an agricultural property.
Read OAG opinion 2009-041 at http://www.ohioattorneygeneral.gov/Legal/Opinions.
If you heard a collective sigh of relief around Ohio on Thursday, it was likely coming from Ohio townships after learning the outcome of the long-awaited “Phantom Fireworks” court case. The Ohio Supreme Court unanimously agreed that Ohio townships may rely on countywide comprehensive land use plans as a basis for township zoning, rather than preparing individual township comprehensive plans. B.J. Alan Co. v. Congress Twp. Bd. of Zoning Appeals, Slip Opinion No. 2009-Ohio-5863 (Nov. 12, 2009).
I tend to like the pragmatic opinions authored by Justice Pfeifer, and this case is no exception. The decision answers with brevity the question of whether a township must prepare its own comprehensive land use plan in order to comply with Ohio zoning law. Examining the language of Ohio Revised Code 519.02, which grants townships the authority to utilize zoning “in accordance with a comprehensive plan,” the court determined that the statute does not require each township to develop its own comprehensive plan. Such an interpretation would be reading additional language into 519.02, said the court, and “the law requires only that a zoning resolution be ‘in accordance with a comprehensive plan.’” A countywide comprehensive plan is sufficient, and “accounts for the interrelationship of communities and marshals resources and expertise.”
Had the court reached a different conclusion, it would have invalidated hundreds of Ohio township zoning resolutions that are based on county land use plans. This was the hope of the B.J. Alan Company, which brought the case as a challenge to a zoning decision by Congress Township in Wayne County. The township denied the company’s request for a use variance to allow it to construct a Phantom Fireworks store on land zoned for agricultural use. When the case went to the court of appeals, that court agreed with the company’s argument that Congress Township’s zoning resolution was invalid according to ORC 519.02 because it was not based on a township comprehensive plan.
The controversial nature of the case led to parties lining up in interesting partnerships on both sides of the appeal to the Ohio Supreme Court. Backing the township were the Ohio Township Association, the Ohio Farm Bureau Federation, the Wayne County Farm Bureau and the Ohio Prosecuting Attorneys’ Association. On the opposite side in support of B.J. Alan Company’s appeal were the Ohio Home Builders’ Association, American Planning Association and Ohio Planning Conference.
The Supreme Court referred the case back to the court of appeals to resolve the question of whether Congress Township’s zoning is indeed “in accordance with” the Wayne County comprehensive plan. The court did examine the county plan, and held that the plan itself is a valid comprehensive plan for purposes of ORC 519.02. Sidestepping the fact that Ohio law does not clearly define a “comprehensive plan,” the court concluded that the Wayne County plan “presents a thorough study of the region and sets forth comprehensive land-use goals for the County.”
For now, townships need not panic about finding the time and funds to develop township comprehensive plans. Townships may continue to enforce their zoning resolutions based on county plans. Unknown to us is whether B.J. Alan Company will need to find a new piece of land for its Phantom Fireworks store—that decision is now in the hands of the appellate court.
By a solid margin, Ohio voters on November 3 passed Issue 2, a constitutional amendment that establishes a Livestock Care Standards Board. (See "Understanding Ohio's Issue 2" post on October 28). The ballot issue was a forceful jab at the Humane Society of the United States, who had identified Ohio as its next target for new laws restricting certain livestock confinement practices. Passing Issue 2 was an accomplishment for its proponents, and it has generated a good deal of discussion around the country about using Ohio's strategy as a model for other states. But now a significant challenge looms before the Governor, the Ohio General Assembly and the Ohio Department of Agriculture: implementing Issue 2. Much must happen before the new Article 14 of the Constitution results in actual standards for livestock care. A number of concerns and needs rise quickly to the surface:
- Establishing board conditions. The new law allows the Ohio General Assembly to set the terms of office and conditions of service for the members of the Livestock Care Standards Board. An important first step in implementing Issue 2 is for the Ohio legislature to utilize this authority and establish clear guidelines for board members, as it has done for other state boards. Doing so should diminish the potential of issues such as political maneuvering in board appointments, internalized power by the board, procedural conflicts and uncertainty, and should help increase the efficiency and productivity of the board.
- Clarifying definitions. A few terms in the new law are vague, perhaps intentionally, and have already led to serious debate. What is a "family farmer"? Issue 2 uses the term when referring to the composition of the board--one member representing "farmily farms" and two "family farmers" are to be on the board. Yet neither the new Article 14 or Ohio law defines the term. Also scattered throughout the law is the term "local foods," a popular term these days, but what is its legal meaning? The lack of a definition for "livestock" led to one campaign argument that the term livestock includes dogs, and that the board could thus use its power to regulate or endorse "puppy mills" --a weak argument that demonstrates a lack of understanding about Ohio animal laws but illustrates the need for definitional clarity. The Ohio legislature should refine these terms in its legislation.
- Appointing the board. Critics of Issue 2 claim that the Livestock Care Standards Board will not represent the full range of agricultural interests in Ohio, a criticism frequently made on agricultural policy issues. The law itself establishes the board's composition, but filling those slots is a crucial step in the implementation process. At risk is acceptance of the board and its standards by Ohio's smaller scale and alternative farmers, many of whom opposed the law, as well as citizens who fear that the board will amount to "big agribusiness" regulating itself. Ensuring that the board contains diverse types and sizes of agricultural operations appears critical to the board's future success.
- Integration with existing institutions and programs. The law's several references to "local foods" immediately leads me to the Ohio Food Policy Council, established two years ago by Governor Stickland. The Food Policy Council focuses on the environmental, social, and economic benefits that Ohio's food and farming system contributes to Ohio, and has developed an impressive body of work and set of recommendations for the state. We also have the Livestock Environmental Permitting Program, responsible for permitting of confined animal feeding operations. How will Ohio integrate the Livestock Care Standards Board with these and other related programs?
- Transparency. This concern needs little explanation; any appearance of a closed, pre-ordained process could doom the board's credibility and solidify attempts to reverse Issue 2 on the next ballot.