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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.

Bill establishes time limits for township and county infrastructure review

A bill approved by the Ohio General Assembly proposes limiting the amount of time county and township officials have for recommending local infrastructure needs for the operation or expansion of a Concentrated Animal Feeding Facility (CAFF).  Both the House and Senate have approved H.B. 22, sponsored by Rep. Buchy (R-77).  The bill now awaits action by Governor Kasich.

Recently introduced on May 17, 2011, H.B. 22 proposes a 75 day time limit for county commissioners and township trustees to provide final recommendations for improvements to local infrastructure that are needed to accomodate a CAFF.   Notification by the CAFF to the county and township is a required step in the Livestock Environmental Permitting Program (LEPP) permit application process.  Information on anticipated traffic routes and number and weights of vehicles must accompany the notification.  Under current law, the county and township must next provide initial recomendations to the CAFF for needed infrastructure improvements.  The CAFF may accept the recommendations or may propose an alternative, and the county and township must then render written final recommendations for infrastructure improvements.  The CAFF must submit the county and township's final recommendations in its LEPP permit application.

Under the language agreed to by the legislature in H.B. 22, if the county or township fails to provide the written final recommendations in 75 days, the CAFF may proceed with the permit application by submiting an affidavit in lieu of the written final recommendations.  The affidavit must state that the CAFF provided the required notification but did not receive written final recommendations from the county or township within 75 days of giving the notification.

The legislature's approval of H.B. 22 comes in the wake of a controversial denial of a LEPP permit application by Hi-Q for an egg laying facility in Union County.  ODA Director Zehringer denied Hi-Q's application because it did not contain the required final infrastructure recommendations from county and township officials.  Hi-Q and Union County had reached an impasse on infrastructure issues, and Hi-Q submitted the permit without any final recommendations by the county.  (See our earlier post on the Director's decision.)  Under H.B. 22's language, Hi-Q could have submitted an affidavit instead of the written final recommendations because more than 75 days had passed since Hi-Q's original notification to the county and township.    The Director thus would not have had to deny the permit application for lack of county and township written final recommendations for infrastructure improvements.

H.B. 22 also proposes changing LEPP from a program to a Division of Livestock Environmental Permitting, and contains a number of other revisions to ODA programs and regulations.  See the analysis of H.B. 22 on the Ohio Legislature's website.

Current bill in House would yield different outcome for Hi-Q CAFF permit

In a unique and controversial case, the Ohio Department of Agriculture (ODA) has denied an application under its Livestock Environmental Permitting Program for Hi-Q Egg Products, LLC to establish an egg laying facility in Union County.   In denying the application, ODA Director Zehringer followed the recommendations made in April 2011 by the ODA hearing officer who reviewed the permit application (see our earlier post).  The hearing officer had recommended denial on the basis of an incomplete application, because  Hi-Q's application did not include a written statement from local officials certifying that final recommendations had been made for local infrastructure improvements and costs, as required by program regulations (OAC 901:10-1-02(A)(6)).  Hi-Q claimed that the county and township failed to provide the recommendations, while the county and township argued that there were no final recommendations because  Hi-Q refused to discuss an alternative transportation route.  In agreeing that the recommendations were not included in the application, Director Zehringer stated that there was "no other viable option but to deny the [permit] due to an incomplete application." 

Ohio's  Livestock Environmental Permitting Program (LEPP) regulates the installation and operation of  large Confined Animal Feeding Facilities (CAFFs).  Critics have long complained that the program fails to consider the potential impacts of CAFF development  upon the local community.  Those concerned about local impacts have used the public hearing process to voice opposition to CAFF permits, but have never successfully prevented approval of a permit.  Until now, the program's obscure requirement for county and township approval of infrastructure improvements has gone unnoticed as a prevention mechanism by such opponents.   

While the Hi-Q denial is a first, opponents of large livestock operations won't have cause to celebrate the decision for long if a current legislative proposal meets with success.  H.B. 229, introduced May 17, 2011 by Rep. Buchy, will place a time limit on the county and township officials who must consider local infrastructure improvements needed for a CAFF permit application.  According to the proposal,  local officials would have 75 days after receiving notice of the proposed facility to render a written statement on local infrastructure improvements and costs.  After 75 days, the permit applicant may submit a notarized affidavit stating that it had provided local officials with notice but did not receive any written final recommendations from the local government within the required timeframe.  Under the law as proposed by H.B. 229, ODA could not deny a permit application that lacks the written statement from local officials as long as 75 days have passed after giving notice and the permit applicant submits the notarized affidavit rather than the written statement from local officials. 

H.B. 229 is currently before the House Agriculture and Natural Resources committee.  Visit this link to view H.B. 229 and here for Director Zehringer's press release on the Hi-Q permit.

In a case of first impression for Ohio, a hearing officer for the Ohio Department of Agriculture (ODA) is recommending that the ODA Director deny a CAFO permit application because it does not contain final recommendations on infrastructure improvements from county and township officials.  The recommendation came as a result of a hearing on Hi-Q's permit application that took place last December, after ODA's previous Director, Robert Boggs, notified Hi-Q of his intent to deny the application for failure to include the local governments' recommendations on infrastructure.

The ODA hearing officer reviewed the notice of intended denial and Hi-Q's permit application and agreed that the application was not complete.  Ohio's Livestock Environmental Permitting Program requires Hi-Q to attach to its application for a permit to install and permit to operate a facility the "written statements from the board of county commissioners of the county and the board of township trustees of the township in which the facility will be located, certifying that, in accordance with those sections, the applicant has provided the boards with the required written notification and that final recommendations, if any, regarding improvements and costs of improvements have been made by the boards."  OAC 901:10-1-02(A)(6).  According to the hearing officer, Hi-Q's application did not include the county and township recommendations.

Hi-Q's attorneys argued that the proposed poultry facility's permit was complete and that the Union County and York Township officials had failed to abide by the permitting program requirements by refusing to give recommendations.  The apparent point of disagreement between the two sides relates to the fact that Hi-Q changed its transportation route after receiving written recommendations and requirements from the county and township on Hi-Q's original proposed transportation route.  The county and township recommended that Hi-Q complete over $7 million in road improvements and pay $132,000 annually for maintenance of the original route.  Hi-Q then proposed a new transportation route; the county and township never made final recommendations for improvements necessary for the new route.  Both sides claim that the other side refused to discuss or agree upon recommendations for the new route.

In reaching its recommendation to deny the permit application on the basis of incompleteness, the ODA hearing officer stated that "[t]his matter garnered widespread media attention and polarized emotional support and opposition.  The facts material to this recommendation are, however, essentially undisputed."

The hearing officer's recommendation will be forwarded to James Zehringer, the new Director of ODA appointed by Governor Kasich.  Zehringer has the authority to make the final decision on whether to grant Hi-Q's application.  If the Director denies Hi-Q's permit for failure to contain the local governments' recommendations, it will be the first time that local reaction to a proposed facility has negatively impacted a facility permit application in Ohio.  Local opponents to CAFOs have unsuccessfully fought permit applications in many instances, but had no legal basis for denial.  According to Ohio law, the ODA must approve a permit application if the applicant meets all of the requirements of the Livestock Environmental Permitting Program (LEPP); the only requirement involving the local community is the infrastructure recommendation provision that is at issue in the Hi-Q application. 

A change to LEPP's local government provision may occur, however, if the ODA follows recommendations recently passed by the agency's Concentrated Animal Feeding Facilities Advisory Committee.  The committee recently approved a proposal in March that recommends giving local government officials a 75-day limit to file their responses to a permit application.  The application could proceed through the approval process if the local governments don't respond within the 75-day window.  The 75-day recommendation by the committee would require legislative action by the Ohio General Assembly.

Read the Hi Q ODA Hearing Officer Recommendation or visit the Ohio Livestock Environmental Permitting Program.