Recent Blog Posts

A claim that the Ohio Department of Agriculture’s (ODA) anhydrous ammonia regulations are unreasonable and fail to protect public health and safety has again been rejected by the courts.  A recent decision by Ohio’s Fifth District Court of Appeals concluded that the challenge by Sharon Township’s Board of Trustees in Medina County failed to establish a valid legal claim.

The case raised considerable controversy in Sharon Township, where the owner of South Spring Farms requested ODA approval to install a 12,000 gallon anhydrous ammonia storage tank.   Ohio law grants ODA the authority to adopt rules concerning the handling and storage of anhydrous ammonia and other fertilizers and also prohibits any local regulation of fertilizers.   ODA created anhydrous regulations in the late 1970s; those regulations require ODA approval of the location and design of a stationary ammonia system.

ODA approved South Spring Farms’ application in 2010 and granted a permit for installation of the tanks.  Sharon Township filed a lawsuit against ODA, asking the trial court to grant an injunction prohibiting the ODA from permitting the installation of anhydrous storage tanks “until the ODA established regulations which would reasonably protect the health, safety, and welfare of people and property which can be reasonably foreseen to be exposed to the toxic and deadly effect of an uncontrolled release of this dangerous material, anhydrous ammonia.”

The legal basis for the denial of Sharon Township’s request for an injunction by both the trial and appeals courts concerns the issue of whether there is a “real and substantial controversy” that necessitates injunctive relief by the court, rather than “an opinion advising what the law would be upon a hypothetical state of facts.”  The Court of Appeals could not find any support for Sharon Township’s claim that the ODA regulations are unreasonable or fail to protect public health and safety.  Without such support, the court concluded that there was no controversy it could resolve.  Granting the township’s request for an injunction would thus amount to “judicial legislation,” said the court.

The case is one that raises questions about the relationships between agriculture and its surrounding communities.  Are communities becoming less willing to tolerate agricultural activities, even though Ohio laws are often set up to support and encourage agriculture?

The use of anhydrous ammonia is a routine practice farmers have engaged in for several decades, yet it upset a surprising number of local leaders and residents in this instance.  The large size of the tank may have been a factor, as well as the extent of non-farm residents in the area.  In addition to the possibility of a leak or spill, concerns raised by the community included proximity to many residents, fear of tampering by methamphetamine producers, an earlier chemical spill by the farm and lack of requirements for fencing.  Whether these are real or perceived threats, the fact that they were raised so strongly and taken to the court of appeals gives us cause for concern.

The case is Bd. of Twp. Trustees Sharon Twp. v. Zehringer, 2011-Ohio-6885 (Dec. 28, 2011).

Ohio attorneys involved in AALA's 32nd annual conference

The American Agricultural Law Association (AALA) has hosted another excellent educational event, recently concluded on October 22 in Austin, TX.  Approximately 250 attorneys, law students and professionals across the United States attended the conference.  Ohio attendees were visible on the program in several ways, including:

• Paul L. Wright of Wright Law Co., LPA presented on “Estate Planning in a Climate of Change.”
• Robert Moore of Wright Law Co., LPA presented on “Partnerships:  the Neglected, the Disaster and the Desirable Plan.”
• Peggy Hall of The Ohio State University presented on “Animal Welfare Litigation Impacting Livestock Producers: Emerging Issues.”
• Larry Gearhardt of Ohio Farm Bureau Federation received an AALA Excellence in Agricultural Law award.
• Peggy Hall of The Ohio State University was inducted as the AALA’s President Elect.

Nashville, Tennessee is the site of the AALA’s 2012 conference, which will take place October 19-20.  For more information on the AALA, visit http://aglaw-assn.org.

The agenda is in place for the fourth annual Ohio Agricultural Law Symposium, a program for attorneys and others working in the agricultural arena.  The Symposium takes place on Friday, November 18 at The Ohio State University's Ohio Union and features state and national experts on the most current legal and policy issues facing Ohio agriculture.

Nine topics are packed into the day-long program, including presentations by Ohio Senator Cliff Hite, Washington D.C. agricultural policy consultant Dale Moore and American Farm Bureau attorney Danielle Quist.  Ohio attorneys and experts will speak on Livestock Care Standards, agri-environmental law, USDA audits, CAUV, oil and gas development and estate planning.   Here is the complete agenda for the day:

Welcome – Peggy Hall, Director, OSU Agricultural & Resource Law Program

Chesapeake TMDL:  EPA’s New Framework for Watershed Regulation    

Danielle Quist, Senior Counsel for Public Policy, American Farm Bureau Federation, Washington, D.C.

Nutrient-Enriched Lakes, Livestock Emissions, and Other Hot Environmental Topics for Ohio Agriculture    

Jack Van Kley, Van Kley and Walker LLC, Columbus

Enforcing Ohio’s New Livestock Care Standards    

James Patterson, Assistant Attorney General, State of Ohio

The Office of Inspector General Audit: Preventing and Detecting Waste, Fraud and Abuse    

Diana Blust, Senior Auditor, U.S. Department of Agriculture, Office of the Inspector General

Current Issues in Current Agricultural Use Valuation     

Larry Gearhardt, Ohio Farm Bureau Federation, Columbus

Representing Landowners in Oil and Gas Leases and Mineral Disputes (Concurrent 1)    

Richard A. Yoss, Yoss Law Office, Woodsfield

Estate Planning for Farmers in an Era of  New Laws and New Wealth (Concurrent 2)      

Beatrice Wolper, Emens & Wolper Law Firm, Columbus Paul L. Wright, Wright Law Co., LPA, Dublin

Fighting for Agriculture in Washington: The Farm Bill and other Farm Policy Issues    

Dale W. Moore, Vice President, Policy Directions, Inc, Washington, D.C.  

Legislative Outlook for Ohio Agriculture    

Senator Cliff Hite, Chair, Ohio Senate Agriculture, Environment and Natural Resources Committee

The Ohio Agricultural Law Symposium is a partnership project of OSU's Agricultural & Resource Law Program and the Ohio State Bar Association and its Agricultural Law Committee.  The goal of the Symposium is to provide a forum for education, discussion and interaction on legal issues for Ohio agriculture.  As in the past, OSU offers scholarships for law students to attend the Symposium at no cost through the support of the Paul L. Wright Agricultural Law endowment fund.

The Symposium brochure  provides additional information about the program.

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.