Recent Blog Posts
Ohio livetock farms have been a target of animal welfare organizations, evidenced by recent releases of undercover videos taken at Buckeye Veal Services and Conklin Dairy Farm and the broadcast of the "Death on a Factory Farm" documentary. The strategy is to gain employment or access to the farm, videotape without the knowledge or permission of the farm owner, and later release video suggesting that the farm mistreats its livestock. This approach has heightened the visibility of farm animal welfare issues in Ohio, but the strategy and its impacts raise many legal issues. A presentation I recently prepared for the Ohio Agricultural Law Symposium highlights research we're conducting at OSU to identify the legal issues and implications of the undercover video approach. Below is synopsis of a few of the more controversial legal issues.
- Ohio's penalty structure for animal cruelty. At least one animal welfare organization claims that it has targeted Ohio for undercover investigations because Ohio is one of the few remaining states that limits animal cruelty punishment to misdemeanor penalties (with the exception of a repeated offense against "companion animals," which is a fifth degree felony). Most states have adopted a felony penalty structure for acts of animal cruelty, which results in more severe punishment. Ohio legislators have made nearly a dozen attempts to increase penalties for animal cruelty, most recently with H.B. 55 (see our earlier post). The proposals always fail, allegedly due to an effective lobbying effort from groups who argue that penalties for cruelty to animals in Ohio should not be higher than those for abuse of humans. While undercover video releases don't appear to be moving felony penalty legislation forward currently, they could be garnering public support for a future proposal. Should Ohio adopt a felony penalty, and if it does, will undercover investigations find a new state target?
- Duty to report animal abuse. The videographer of the Conklin Dairy Farm video witnessed acts of mistreatment against animals by an employee for approximately one month before the organization released the videos. Many argue that the videographer should have reported the abuse right away, but neither Ohio or any other state has a law requiring an ordinary person to report animal cruelty. Fifteen states have laws mandating that veterinarians report suspected animal cruelty: Ohio does not. Another 13 states have "voluntary" reporting laws for veterinarians, which grant a veterinarian immunity and a waiver of client confidentiality upon reporting abuse, but not Ohio. Ohio does have several mechanisms a person could use to initiate an investigation of suspected animal cruelty through local law enforcement or the county humane society. In a similar vein, should livestock farms have an employment policy requiring employees to report incidents of animal mismanagement and abuse by other employees?
- Who's committing the crime? The person committing the act against an animal is the obvious offender, but what about the videographer and the employer? Circumstances may exist such that the videographer was a legal "accomplice" to the crime. Under Ohio law, a person can be prosecuted as an accomplice if the person solicited another to commit a criminal offense; aided, abetted or conspired with another in committing the offense; or caused an innocent or irresponsible person to commit the offense, and also shared in the intent to commit the crime. Likewise, it may be possible to prove that a videographer acted with "recklessness" by observing and taping the crime or by encouraging and interacting with the offender; recklessness is the required mental state for an animal cruelty violation. As for the employer, Ohio's humane society law clarifies that a conviction of an employee for animal cruelty does not prevent the prosecution of the employer for "allowing a state of facts to exist which will induce cruelty to animals" by the employee.
These are only a few of the issues surfacing from the undercover video strategy. Given the current climate of continued attempts to "out" livestock farmers and push the farm animal welfare issue in Ohio, perhaps it's time we begin finding solutions to the issues.
Court has agreed to review appellate decision to close winery
A controversial split decision on agricultural zoning from the Fifth District Court of Appealswill go before the Ohio Supreme Court. The court has agreed to review Terry v. Sperry, 2010-Ohio-1299 (March 23, 2010), an appellate decision that endorsed a township's desire to close down a winery in an exurban residential area. The court agreed with the township's assertion that Myrrdin Winery could not utilize Ohio's "agricultural exemption" from township zoning authority because the winery imported more grapes than it grows on the premises and thus does not meet the statute's definition of "agriculture." Because the winery did not qualify as "agriculture," the court held that the township could enjoin its operation. We disagree with the court's reliance on the definition of "agriculture" because the statute also includes specific exemption language for wineries that bypasses the agriculture definition. See our earlier post, Ohio court allows township to use zoning to prohibit winery.
The Supreme Court's decision to review the case should result in much needed clarification of township zoning authority over wineries, a recurring issue in Ohio. With more and more wineries developing in Ohio, many will be anxious for the Supreme's Court's interpretation of the statute. The court should reach a decision in early 2011.
Ohio Agricultural Law Symposium will take place September 17, 2010
Ohio State University Extension and the Ohio State Bar Association will again partner to provide the third annual Ohio Agricultural Law Symposium on September 17, 2010. The continuing legal education event targets the educational needs of attorneys who work in agricultural and rural arenas. Ohio Supreme Court Justice Paul Pfeifer leads our slate of speakers; he'll provide an update on relevant case law impacting agriculture. Joining the Justice will be Jesse Richardson, Assoc. Prof. from Virginia Tech and Policy Advisor for the Water Resources Council, who will address water law and ethics in counseling farm families. Duane Siekman, CEO of the Ohio Corn Growers and Ohio Wheat Growers Associations, will present on energy and agriculture, and Tony Logan, Ohio's USDA Rural Development State Director, will provide an update from his office. The local food and farming landscape, a growing practice area for agricultural and rural attorneys, will be the topic of discussion from Jill Clark with OSU's Center for Farmland Policy Innovation. Attorneys Robert Moore and Dave Pennington of Wright Law Company will present on proving damages in agricultural litigation, and attorneys David Pryor and Greg Flax will lead a panel discussion on growing the agricultural law practice. I'll provide a presentation on the legal issues attendant to undercover operations on the farm.
The Symposium will take place at The Ohio State University on the Friday before an Ohio football showdown between OSU and Ohio University--attorneys can come for the education and stay for the game. For more information, visit the Ohio State Bar Association CLE link at http://www.ohiobar.org or click here for the Symposium Brochure 2010.
Tags: CLE, continuing legal education, law conferences, Ohio Agricultural Law Symposium
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Transition Incentives Program aims to help new and disadvantaged farmers obtain land.
The Farm Bill's new Transition Incentives Program (TIP) is now available in Ohio. The addition to the Conservation Reserve Program (CRP) will provide rental payments to transition CRP land from a retired farmer to a beginning or socially disadvantaged farmer who returns the land to sustainable production. TIP received $25 million in funding from the 2008 Farm Bill. Program supporters hope the funds will enable beginning and socially disadvantaged farmers to obtain affordable land for agricultural production.
Here's how the program will work:
- The CRP landowner must be a "retired" or "retiring" landowner.
- The CRP contract must expire on or after September 30, 2010, but there is an exception for certain contracts that expired in 2008 and 2009.
- The landowner must enroll all or a portion of the CRP land in TIP by the enrollment deadline. Contracts expiring in 2010 and eligible 2008 and 2009 contracts must be enrolled by September 30, 2010. Later contracts must be enrolled during the last year of the contract.
- The new or socially disadvantaged farmer or rancher must develop a conservation plan for the TIP land.
- By October 1 of the CRP contract expiration year, the landowner must agree to sell or lease (for a minimum of five years) the land to a non-family "beginning" or "socially disadvantaged" farmer or rancher and must allow the farmer to make improvements on the land in accordance with the approved conservation plan.
- The beginning or socially disadvantaged farmer must return the land to production using sustainable grazing or crop production methods.
- The beginning or socially disadvantaged farmer will be eligible to enroll the land in continuous CRP, Conservation Stewardship Program or Environmental Quality Incentives Program, with a waiver of the provision requiring 12 months of continuous ownership.
- The landowner will receive up to two additional CRP annual rental payments if all TIP requirements are met.
A few important definitions:
- A "retired or retiring" owner is one who has ended active labor as a crop producer, or plans to do so within five years of the TIP arrangement.
- A "new or beginning farmer or rancher" is one who has been farming for less than ten years and who will materially participate in the operation of the TIP land. If an entity, at least 50% of the entity's members or stockholders must meet the ten year, material participation requirements.
- A "socially disadvantaged farmer or rancher" is a member of a group that has been subject to racial or ethnic prejudice. Examples include American Indians, Alaskan Natives, Asians, Asian-Americans, Blacks, African Americans, Hispanics. Unlike other federal programs, this definition does not encompass gender prejudice; hence, women do not qualify as socially disadvantaged for purposes of the TIP program.
A few questions arise when considering whether there will be interest in TIP. Are there sufficient incentives for the CRP landowner to transition the land, are there connections between CRP landowners and beginning or socially disadvantaged farmers, and how will the rental payment affect the purchase or lease price for the land? Ohio will soon have an indication of program interest, with the first enrollment deadline of September 30, 2010 quickly approaching.
For more information on TIP, visit the FSA site.
Tags: CRP, TIP, Transition Incentives Program, transitioning farmland
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Bill makes wind and solar in Ohio competitive with neighboring states
Passed by both chambers of the Ohio legislature early morning on Friday, June 4, S.B. 232 provides tax exemptions for certain sources of new power generation. The bill was sponsored by State Senator Chris Widener and enjoyed bipartisan support. A press release from the Governor’s office makes clear he intends to sign it into law as soon as he receives it.
The new law will eliminate both the tangible personal property tax and the real property tax on new advanced energy projects. Qualified energy sources include wind, solar, and all other renewable energy resources as defined in Ohio Revised Code Section 4928, in addition to clean coal, nuclear energy, and the cogeneration of electricity from waste heat sources. To qualify, new projects involving wind, solar and other renewables must be under construction by January 1, 2012 and in service by January 1, 2013. All other qualified energy sources must be under construction by 2017.
One impetus for this change in tax treatment is that the current tangible tax rate energy companies pay is not competitive with other states. In Ohio, the tax rate for wind facilities stands at approximately $40,000 per megawatt, while solar is approximately $100,000 per megawatt. This compares to a range of $3,000 to $9,000 per megawatt in neighboring states.
The Ohio Department of Development will certify the exemption and base new payment rates (payment in lieu of taxes) on the number of Ohioans employed in the construction and installation of a qualified facility. Energy companies will have to comply with several other requirements including road repair, first responder training, and the establishment of university partnerships to promote the education, training and curriculum development of renewable energy industries.
The new rates will be as follows:
- Solar - $7,000 per MW
All other facilities:
- $6,000 per MW when 75% or more Ohio-domiciled employees are employed during construction and installation.
- $7,000 per MW when 60% or more Ohio-domiciled employees are employed during construction and installation.
- $8,000 per MW when 50% or more Ohio-domiciled employees are employed during construction and installation.
The bill also addresses Current Agricultural Use Valuation (CAUV) property and provides that the installation of an energy facility will not cause the remaining portion of a CAUV tract to be ineligible for CAUV.
The new law may signify the beginning of wind development in Ohio’s rural communities. Three wind projects have already received an Ohio Power Siting Board certificate and may be the first projects situated to apply for the new tax exemptions. Information regarding the three approved wind projects and four pending projects can be found on the Ohio Power Siting Board website.
Full text of S.B. 232 is available here.
Tags: cauv, property tax exemption, renewable energy law, renewable energy tax exemption, tangible personal property tax exemption, wind energy
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Bill modifies penalties for animal cruelty, with focus on companion animals
Months before the current controversy of alleged animal cruelty by employees of Conklin Dairy Farms, Rep. Williams and Combs introduced H.B. 55 to revise portions of Ohio's animal cruelty law. Yesterday, the Ohio House passed the animal cruelty bill, which had been introduced last March.
H.B. 55 focuses largely on cruelty to "companion animals," which includes dogs, cats, and any animal kept inside a residential dwelling. Changes to the companion animals provisions include authority to order child offenders to undergo counseling and psychological treatment, inclusion of companion animals in court protection orders, and requirements for the State to approve continuing education courses on animal abuse counseling for medical and social work professions.
In regards to cruelty to animals other than companion animals, H.B. 55 adds a new penalty provision. The penalty remains a second degree misdemeanor for first offenses, but increases to a first degree misdemeanor for subsequent violations of the law. Current law addresses each offense as a second degree misdemeanor. Under Ohio law, a first degree misdemeanor can result in a maximum penalty of 180 days in jail and a $1,000 fine, while a second degree misdemeanor violation carries a maximum of 90 days in jail and a $750 fine.
What is cruelty to animals? Ohio's animal cruelty law is Ohio Revised Code section 951.13, which states that "no person shall:
- (1) Torture an animal, deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate or kill, or impound or confine an animal without supplying it during such confinement with a sufficient quantity of good wholesome food and water;
- (2) Impound or confine an animal without affording it, during such confinement, access to shelter from wind, rain, snow, or excessive direct sunlight if it can reasonably be expected that the animals would otherwise become sick or in some other way suffer. Division (A)(2) of this section does not apply to animals impounded or confined prior to slaughter. For the purpose of this section, shelter means a man-made enclosure, windbreak, sunshade, or natural windbreak or sunshade that is developed from the earth’s contour, tree development, or vegetation;
- (3) Carry or convey an animal in a cruel or inhumane manner;
- (4) Keep animals other than cattle, poultry or fowl, swine, sheep, or goats in an enclosure without wholesome exercise and change of air, nor or feed cows on food that produces impure or unwholesome milk;
- (5) Detain livestock in railroad cars or compartments longer than twenty-eight hours after they are so placed without supplying them with necessary food, water, and attention, nor permit such stock to be so crowded as to overlie, crush, wound, or kill each other."
Before passing H.B. 55 yesterday, the House included floor amendments that make minor revisions to the dangerous and vicious dog provisions in Ohio Revised Code 955.11.
The Ohio Senate has not introduced a similar animal cruelty bill, and has only a few more sessions until its summer recess begins in early June. If the Senate doesn't pass the animal cruelty legislation before the end of the year, the bill will expire and must be reintroduced after January, in the next session of the Ohio General Assembly.
Animal rights groups have advocated around the country for stiffer penalties on animal cruelty offenses. Most state animal cruelty laws contain both misdemeanor and felony penalties, with the more severe felony charges typically applying to acts that are intentional, heinous or involve mutilation. Under Ohio law, felony charges apply to certain offenses against companion animals and some dog-fighting offenses. For an overview of state animal cruelty laws, visit this publication by the Michigan Animal Legal and Historical Center. View the entire chapter of Ohio law on offenses to domestic animals, which includes the animal cruelty law and various penalty provisions, here.
See Ohio H.B. 55 here. The floor amendments to H.B. 55 are in the House Journal for May 27, 2010.
Bill introduced in Ohio House of Representatives to clarify liability standards
A recurring problem around Ohio may be resolved if H.B. 503 progresses through the General Assembly before the end of the year. Representatives Bubp (R-88th Dist.) and Garrison (D-93rd Dist.) recently introduced the bill to revise Ohio's animals at large law. The proposal clarifies the standards for civil and criminal liability under the law.
The animals running at large law, found in Ohio Revised Code Chapter 951, states that no owner or keeper of horses, mules, cattle, sheep, goats, swine, or geese "shall permit" the animals to run at large on public roads or outside of their enclosures. Many law officers, prosecutors and judges have interpreted the word "shall" as a trigger for automatic liability--if an animal is out, the owner is liable. But in a case before the Ohio Supreme Court, the court stated that the law does not establish automatic liability. The court explained that the law creates the duty to exercise ordinary care to keep animals from running at large and sets up a "rebuttable presumption" of liability. An animal owner whose animals are found running at large has the opportunity to rebut the presumption of liability and prove that he or she exercised ordinary care to contain the animals. Despite the Supreme Court opinion, animal owners have continued to be subject to prosecution under an automatic liability standard.
H.B. 503 removes the possibility of interpreting the animals at large law as a strict liability law and lays out two different standards for civil and criminal liability. An owner or keeper of animals who "negligently" permits animals to run at large is liable for all damages caused by the animal, and an owner or keeper who "recklessly" permits animals to run at large is guilty of a fourth degree criminal misdemeanor. Under Ohio law, "negligence" is the failure to exercise ordinary care, while "recklessness" is acting with indifference to consequences and with disregard to a known risk.
H.B. 503 would alleviate the problems many animal owners in Ohio have faced--potential criminal liability when natural disasters, vandals, pranksters or neighbor disputes, rather than the owner's action or inaction, caused the release of the animals. A disturbing increase in such incidents led the Ohio State Bar Association and its Agricultural Law Committee to work with H.B. 503 sponsors to develop the revisions. View H.B. 503 here.
Tags: animals at large, livestock, livestock liability, livestock running at large
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Appellate Court decides that a livestock trailer is "farm machinery" under Ohio law
Why does it matter? A "motor vehicle" must display a license plate according to Ohio Revised Code Section 4503.21(A), but "farm machinery" is exempt from the requirement.
When a farmer pulling a trailer loaded with cattle in Wayne County did not have a license plate on the trailer, a state trooper cited him for violating ORC 4503.21(A). The farmer argued that the trailer did not require a license plate because it was exempt as "farm machinery." The municipal court judge disagreed because the trailer fits within the definition of "motor vehicle." The court found the farmer guilty of a minor misdemeanor. But a later opinion issued by the Ninth Circuit Court of Appeals overturned the judge's decision and held that the livestock trailer is "farm machinery" that is exempt from Ohio's license plate requirements.
Confusing? As with many Ohio laws relating to agriculture, the statute itself is likely responsible for the confusion. The license plate law states in Ohio Revised Code Section 4503.21 that:
- "(A) No person who is the owner or operator of a motor vehicle shall fail to display in plain view on the front and rear of the motor vehicle the distinctive number and registration mark . . . except that . . . the owner or operator of a motorcycle, motorized bicycle, manufactured home, mobile home, trailer, or semitrailer shall display on the rear only. . ." [emphasis added]
In conclusion, a "trailer" must have a rear license plate. The law defines a "trailer" in Ohio Revised Code Section 4501(M), which includes, among other things:
- " . . . a vehicle used to transport agricultural produce or agricultural production materials between a local place of storage or supply and the farm when drawn or towed on a public road or highway at a speed greater than twenty-five miles per hour . . ."
And so it appears that a trailer transporting livestock to a sale in Wayne County should have displayed a rear license plate. Not so, said the court, because the law also states in the definition of "motor vehicle" that the definition does not include "farm machinery." If a trailer transporting livestock fits within the definition of "farm machinery," then it is not a motor vehicle that requires a license plate, the court reasoned. Which brings us to the definition of "farm machinery" in ORC 4503.01(U); that definition begins:
- “ 'Farm machinery' means all machines and tools that are used in the production, harvesting, and care of farm products, and includes trailers that are used to transport agricultural produce or agricultural production materials between a local place of storage or supply and the farm . . . [emphasis added]
Hence, the confusion--two similar references to trailers used for agricultural purposes, but with different outcomes. The appellate focused on the "farm machinery" definition to determine the outcome of the case, and stated:
- "We conclude that the cattle Mr. Besancon was hauling were "agricultural produce" under Section 4501.01(U) because they were the progeny of livestock animals. We further conclude that the auction house is a “place of . . . supply” under that section because it is a location at which goods are offered for sale at various prices. A magistrate found that Mr. Besancon was using the livestock trailer to transport cattle to an auction house. Mr. Besancon, therefore, was using it to transport agricultural produce between a local place of supply and his farm. Accordingly, it was farm machinery under Section 4501.01(U)."
The impact of the Ninth District court's decision could extend beyond the license plate law. Many other highway and traffic laws include mention of "farm machinery" and utilize the same definition for "farm machinery" found in ORC 4501.01(U). The Besancon case provides other courts, especially those in northeast Ohio's ninth appellate district, a basis for sorting through the muddled treatment of agriculture in Ohio roadway laws.
See State v. Besancon, 2010-Ohio-2147, here.
Tags: farm machinery, license plates exemptions, motor vehicle exemptions
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Proposal would ensure that on-farm bioenergy activities qualify for CAUV and are exempt from zoning regulation.
A legislative proposal in the Ohio House of Representatives would include on-farm bioenergy production activities in two key provisions of Ohio law: qualification for differential tax assessment under the Current Agricultural Use Valuation program and exemption from local zoning authority. Representatives Pryor and Domenick introduced House Bill 485 in mid-April with assistance from the Ohio Department of Agriculture. The bill was referred to the House Agriculture and Natural Resources Committee, but no other action on the bill has taken place.
The proposal addresses "biodiesel production, biomass energy production, electric or heat energy production and biologically derived methane gas production" where at least 50% of the starting material or feedstocks are from the same tract, lot or parcel on which the energy production takes place. This 50% requirement targets on-farm energy production, where a farm is producing and processing the energy inputs, as long as no more than 50% of the supplementary inputs derive from other properties.
The bioenergy production activities that meet the 50% rule would be included in the CAUV' program's definition of "land devoted exclusively to agricultural use" in ORC 5713.30, thus guaranteeing eligibility for the CAUV property tax rate. The bioenergy production activities would also become part of the definition of "agriculture" for purposes of county and township zoning, ORC 303.01 and ORC 519.01. Because counties and townships have limited zoning authority over "agriculture," the proposal would ensure that a county or township could not use zoning authority to prohibit the qualifying bioenergy production activities.
H.B. 485 is available online, here.
Tags: agricultural zoning, bioenergy, biofuels, cauv
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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.