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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.

Not surprisingly, a group called Ohioans for Humane Farms has requested a petition initiative certification from the Ohio Attorney General that could place a second proposed consititutional amendment on farm animal care before Ohio voters this fall.  Ohioans approved "Issue 2" last fall, a constitutional amendment that created the Ohio Livestock Care Standards Board  to create standards for the care and well-being of farm animals (see earlier posts.) 

The current petition certification request for a new initiative, submitted January 27 and signed by over 1,000 Ohio electors, requests approval to circulate a petition that proposes amending the Constitution to require the newly created Ohio Livestock Care Standards Board "to adopt certain minimum standards that will prevent the cruel and inhumane treatment of farm animals, enhance food safety, and strengthen Ohio farms." 

The  petition's proposed constitutional amendment goes beyond the expected prohibitions on confinement of pregnant pigs, laying hens and veal calves that farm animal welfare advocates have advanced in other states, but it does not conflict with the language enacted by Ohio's Issue 2.  According to the proposed ballot initiative, the minimum requirements the Ohio Livestock Care Standards Board would be required to adopt include:

• Prohibition of the confinement of veal calves, pregnant pigs and egg-laying hens on a farm, for all or the majority of any day, in a way that prevents the animal from lying down, standing up, fully extending his or her limbs, or turning around freely.  There are exceptions for scientific or agricultural research; veterinary treatments; rodeo, fair, or other exhibitions; 4-H and similar programs; during slaughter; or for pregnant pigs, in the seven days prior to giving birth.  A "farm" is land, buildings and equipment used for the commercial production of animals for food an fiber.
• Requirements that all killings of cows and pigs be performed in a humane manner using methods deemed "acceptable" by the American Veterinary Medical Association, and prohibition of any killing of cows and pigs by strangulation.
• Prohibitions against the sale, transport or receipt for use in the human  food supply of  any "downer" cow or calf that is too sick to stand or walk.
• Misdemeanor charges for any violation of the standards developed by the Livestock Care Standards Board, punishable by up to one year of jail and/or $1,000.

If passed by Ohio voters, the proposed constitutional amendment would take effect within six years of the date of its adoption.

The Ohio Attorney General must act on the initiative petition by February 5, 2010.  If the Attorney General certifies that the petition's summary  contains a fair and truthful statement of the proposed amendment, the petition goes to the Ohio Ballot Board, who must ensure within ten days that the proposal contains only one constitutional amendment.  If approved, the Attorney General files the petition with the Secretary of State, and the proponents may then begin collecting signatures on the petition.  The number of valid signatures required to place the initiative on the ballot is at least 10% of the number of votes cast for governor in the last election (total votes for governor in 2006 were 4,022,928).  At least 44 of Ohio's 88 counties must be represented with signatures from at least 5% of each county's votes cast for governor in the last election.  The proponent must file the petitions by June 30, which is 125 days before the date of the general election date of November 2, and the proponent will have ten days to correct the insufficiency of signatures after a determination by the Secretary of State.

According to a press release issued by the Humane Society of the United States, the ballot proposal by Ohioans for Humane Farms is supported by The Humane Society of the United States, Farm Sanctuary, Ohio Society for the Prevention of Cruelty to Animals, Toledo Area Humane Society, Geauga Humane Society, Ohio League of Humane Voters, Center for Food Safety, United Farm Workers, Consumer Federation of America and Center for Science in the Public Interest.

View the initiative petition for the Livestock Board Amendment on the Ohio Attorney General's website at http://www.ohioattorneygeneral.gov/Legal/Ballot-Initiatives.

Representatives Sayre and Bolon introduced the implementation legislation for State Issue 2's Ohio Livestock Care Standards Board on Tuesday, January 19.  H.B. 414 does the following:

• Defines "livestock" as equine animals, regardless of the purpose for which the equine are raised; porcine, bovine, caprine and ovine animals; poultry; alpaca and llamas. 
• Requires the appointment of the Ohio Livestock Care Standards Board within 45 days of the bill's effective date and establishes board member provisions such as terms of office, vacancies, meetings and compensation.
• Reiterates Issue 2's language regarding the purpose of the board.
• Directs the board to adopt rules regarding civil penalties for violating care standards.
• Establishes duties of the director of the Ohio Department of Agriculture for assisting the board and grants authority to the director and his/her representative to enter property for inspection and investigation.
• Prohibits anyone from providing false information in response to the livestock care standard requirements, or otherwise violating the rules developed by the board.
• Creates an Ohio livestock care standards fund and authorizes the director of the Ohio Department of Agriculture to use the fund for program administration and enforcement.
• Increases the commercial feed and seed inspection fee in ORC 923.44 by 15 cents over the next three years, in five cent increments per year--to 30, 35 and 40 cents per ton--and increases the minimum fee from 25 to 50 dollars.
• Allows the director of ODA to request annual transfers of not less than $500,000 from the commercial feed and seed fund to the Ohio livestock care standards fund.
• States that the law does not affect the authority of county humane societies or officials.
• Clarifies that the law does not apply to food processing production activities regulated under ORC Chapter 1717.

View H.B. 414 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 and 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.