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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:

  1. 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.  
  2. 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.
  3. 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. 
  4. 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?
  5. 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.

OSU Agricultural & Resource Law Program at Farm Science Review ~ September 17-19, 2013.  See http://fsr.osu.edu/. Ohio State Bar Association Agricultural Law Committee ~ fall meeting ~ date TBA in September, 2013. American Agricultural Law Association Annual Conference ~ October 31 -- November 2 in Madison, Wisconsin.  Information is available on the AALA website. Ohio Agricultural Law Symposium 2014 ~ Friday, May 16, 2014.  Location and program to be announced; check back for further details.

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By: Peggy Kirk Hall, Wednesday, October 28th, 2009

Does the law require a minimum amount of acreage for a landowner to engage in agricultural activities like raising crops, livestock or horses in Ohio?  This is a common question I receive in the Farm Office.  The answer is usually a simple "no," but the explanation is not exactly simple.

One situation where there could be a legal minimum acreage requirement is if land is within a municipality.  Because cities, towns and villages have greater zoning authority than counties and townships in Ohio, they can prohibit agriculture altogether or establish regulations for agricultural activities such as minimum acreage requirements. 

That's not the case when counties and townships have zoning.  Their zoning regulations are subject to an Ohio law that largely exempts agricultural land uses from zoning--the "agricultural exemption."  Unless a parcel is in what I call a "subddivision situation," county and township zoning can't prohibit or regulate agricultural land uses on that parcel.  Within a platted residential subdivision or where there are 15 or more contiguous subdivided lots established outside of the platting process, county and township could use zoning to regulate certain agricultural activities on lots that are less than five acres. For example, zoning could regulate lots under one acre and could regulate animal husbandry activities, set back lines, and building sizes on lots between one and five acres.

But if a lot in a subdivision situation is over five acres, the agricultural exemption applies and a county or township can't regulate or prohibit agricultural activities on the lot.  This means county or township zoning can't require a landowner to have at least two acres to raise cattle or horses, for instance, or to have at least five acres to plant an agricultural row crop.  These types of requirements would be an attempt to regulate agriculture, and Ohio's agricultural exemption from zoning simply doesn't allow counties and townships to do so in those situations.

Note that Ohio's Current Agricultural Use Valuation (CAUV) law does establish a minimum acreage.  CAUV is the program that allows qualifying property to be valued and taxed as agricultural rather than for its fair market value.  Parcels must be either at least ten acres in size or produce an average annual gross income of $2500 from agriculture.   The land must be dedicated to "commercial" agricultural activity to qualify for CAUV.   Zoning regulations and CAUV eligibility are not related to one another but they likely lead to confusion on the issue of minimum acreage for agriculture.

For more on agriculture and zoning, see our Zoning Law shelf on theFarm Office Ag Law Library, here.

 

HappyPigThere's much debate about Ohio's Issue 2, a proposal regarding farm animal welfare.  Below are answers to legal questions about Issue 2.  Are there other unanswered legal questions?  If so, let me know.

What is Issue 2?

Issue 2 is a ballot issue that Ohio voters will decide in the November 3, 2009 general election.  The issue proposes an amendment to the Ohio Constitution that addresses the care of livestock in Ohio.

How did Issue 2 get on the ballot?

There are two ways to propose an amendment to the Ohio Constitution:  by citizen initiative or by a joint resolution passed by Ohio’s legislature, the General Assembly.  Both methods require that the proposal be placed on the ballot for majority approval by Ohio voters.  Issue 2 arose through a joint resolution in the General Assembly.  The Ohio House of Representatives and the Ohio Senate both approved the proposed constitutional amendment.  As required by law, the Ohio General Assembly then submitted the enacted resolution to the Ohio Secretary of State, who chairs the Ohio Ballot Board.  The five member Ballot Board reviewed the resolution and developed a summary of the joint resolution for the ballot.  The Ohio Attorney General certified that the Ballot Board’s summary is an accurate depiction of the joint resolution, and the summary will appear as Issue 2 on the November 3, 2009 general election ballot.  You may view the joint resolution passed by the Ohio legislators here, which is the actual language that would be included in the Ohio Constitution if approved on November 3, 2009.  The Ballot Board’s summary of the joint resolution, which is the actual language that will appear on the ballot as Issue 2, is here.  To learn more about the ballot initiative procedure in Ohio, visit this page.

Is a constitutional amendment the same as a law?

Yes.  Ohio’s Constitution is one source of law; Ohio also has statutory law (the Ohio Revised Code), administrative law (agency rules), and common law (written court decisions).   However, the Constitution is Ohio’s “supreme” law because it establishes the framework for Ohio’s governmental structure, sets forth powers of the government, provides for fundamental individual rights, and is difficult to change.  Only a majority vote by Ohio voters can change the Ohio Constitution.

What does Issue 2’s proposed constitutional amendment do?

Issue 2 proposes to amend the Ohio Constitution by including language in the Constitution that:

  • Creates an Ohio Livestock Care Standards Board that would have the authority to establish standards for livestock care in Ohio.
  • Gives the Ohio Department of Agriculture the authority to oversee and enforce the livestock care standards.
  • Grants the Ohio General Assembly the authority to enact laws necessary for creating the Livestock Care Standards Board and overseeing, implementing and enforcing its standards.

Who would be on the Ohio Livestock Care Standards Board?

Issue 2 establishes a thirteen member Livestock Care Standards Board.  No more than seven members on the board may be of the same political party.  The Ohio General Assembly would have the power to set the terms of office for the Board members and determine any conditions for the Board members' service. The proposal states that the Board would consist of:

  • The director of the department of agriculture, who would serve as chair of the Board;
  • Ten members appointed by the Governor with Senate approval, which must include:  one family farm representative, one member knowledgeable about food safety in Ohio; two members representing statewide farmer organizations; one veterinarian licensed in Ohio; the State Veterinarian; the dean of an Ohio college or university’s agriculture department; two members of the public representing Ohio consumers; one member representing a county humane society
  • One family farmer appointed by the Speaker of the Ohio House of Representatives.
  • One family farmer appointed by the President of the Ohio Senate.

What is a “family farmer” for purposes of Issue 2?

Issue 2 does not contain a definition of “family farmer,” nor does Ohio’s statutory laws.

How would the Board create the livestock care standards?

Issue 2 does not specifically detail how the Livestock Care Standards Board would go about creating the livestock care standards, but it does state that when developing the standards, the Board must consider factors that include, but are not limited to, agricultural best management practices for such care and well-being, biosecurity, disease prevention, animal morbidity and mortality data, food safety practices, and the protection of local, affordable food supplies for consumers.  Issue 2 also directs the Ohio legislature to enact laws to help the Board carry out its duties, which would allow the legislature to establish a process for the Board to follow when developing the livestock care standards.

Who would enforce the livestock care standards

According to Issue 2, the state department that regulates agriculture (which is currently the Ohio Department of Agriculture) would have the authority to implement and enforce the standards developed by the Livestock Care Standards Board, and could create administrative rules and regulations necessary to do so. 

How much will a Livestock Care Standards Board cost and how will it be funded?

The Office of Budget and Management has prepared a fiscal analysis for Issue 2.  The analysis projects costs based upon similar Ohio boards and programs.  OBM assumes that funding will derive from the state’s General Revenue Fund, since the proposal does not designate a funding source.  See the OBM’s cost projections here.

Do other Ohio laws affect the care of farm animals?

Yes.  Ohio currently has laws related to the care of domestic animals, commonly referred to as our animal cruelty laws.  The laws prohibit acts such as torture; confinement without adequate shelter, fresh air, food or water; and unnecessary or cruel harm to an animal.  Unless the Ohio General Assembly changes them, these laws will remain in effect and will apply to farm animals even if Issue 2 passes. The Ohio General Assembly could choose to amend the existing animal cruelty laws to include the livestock care standards developed by the Board.  See Ohio’s animal cruelty laws here

If Issue 2 passes, could it ever be changed?

Yes, but because Issue 2 proposes an amendment to the Ohio Constitution, it could only be changed by another proposed constitutional amendment that must be approved by Ohio voters. 

How does Ohio’s Issue 2 differ from Proposition 2 that passed last year in California?

The ballot initiative known as Proposition 2 passed by California voters last fall amended California’s statutory law.  It was not a constitutional amendment like Ohio’s Issue 2.  The California law does not address the care of all livestock, but instead prevents certain actions for certain types of livestock.  California’s law prohibits the tethering or confinement of pregnant hogs, veal calves and egg-laying hens in a way that prevents the animal from lying down, standing up, fully extending its legs or turning around freely for a majority of the day.

Could a ballot proposal like California’s Proposition 2 come to Ohio if Issue 2 passes?

In addition to allowing initiatives that amend the Constitution, Ohio law allows citizens to propose new statutory laws through the ballot initiative process.  A person or group could use the ballot initiative to propose a law like California’s Proposition 2 in the future, and the proposal could be placed on the general election ballot for voter approval.  If Issue 2 passes, however, a future ballot proposal that conflicts with Issue 2’s constitutional amendment could be challenged legally. 

Do other states have laws like the one proposed by Issue 2?

A number of states have addressed the issue of farm animal care, but none have enacted a law similar to Ohio’s Issue 2.  Rather, the laws follow California’s approach of prohibiting certain practices for certain types of livestock, such as egg-laying poultry, veal calves and pregnant hogs.  Only Florida has enacted a constitutional amendment on farm animal care, and the Florida provision applies only to confinement of pregnant pigs.  For links to other state laws on farm animal welfare, see our website at http://aede.osu.edu/programs/aglaw or visit Michigan State University’s Animal Legal & Historical Center at http://www.animallaw.info/.

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Tags: Animals, ballot initiative, issue 2, livestock
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This blog is an outreach project of the Agricultural & Resource Law Program at The Ohio State University, a program supported by OSU Extension.   For additional resources from the program, visit go.osu.edu/aglaw.

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One “trust mill” is on its way out of Ohio, thanks to a recent ruling by the Ohio Supreme Court.  On October 14, 2009, the Court issued a hefty $6.4 million penalty against American Family Prepaid Legal Corp. and its affiliate, Heritage Marketing and Insurance Services, Inc.   The Court barred the companies from doing business in Ohio. The California-based companies targeted elderly Ohioans by offering a full array of estate planning services that would allegedly minimize estate probate costs.  Non-attorney salespeople contacted elderly persons and marketed a $1,995 prepaid estate plan, which essentially amounted to one living trust.  Upon delivery of the living trust to client homes, the salespersons also marketed insurance products.  The sales were high-pressure, according to the Court.  Credit must be given to the Columbus Bar Association for pursuing the case.  After receiving repeated complaints about the companies, the CBA investigated and determined that the companies were condoning the unauthorized practice of law.  While an attorney in California drafted the trust documents, non-attorney salespersons interacted with the clients, provided legal information, and answered legal questions. The Supreme Court had no sympathy for the companies and their sales scheme, and accurately described the “trust mill” issue that causes much frustration and concern in the legal profession.  Said the court:

"A living-trust package is often not needed and may even be harmful for persons who are without significant assets, who have simple estates, or whose estates may need court supervision.  A basic living-trust package...may even be insufficient and completely inappropriate for those having more substantial assets and who may need specific legal advice and even tax advice to meet their needs. ... [t]hese enterprises, in which the laypersons associate with licensed practitioners in various minimally distinguishable ways as a means to superficially legitimize sales of living-trust packages, are engaged in the unauthorized practice of law...by facilitating such sales, licensed lawyers violate professional standards of competence and ethics."

A misfortune of the case is that the companies have declared bankruptcy and ceased operations.  The Columbus Bar Association is exploring whether it can collect the fine from another insurance company owned by the father-son team behind the defunct companies.  The CBA hopes to distribute any amounts it collects back to victims of the trust scam.  To read the court's opinion, visit here.

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