by Gary Taylor
NOTE: The agricultural exemption to county zoning in Iowa is a constant source of consternation. Take heart, Iowa landowners and county officials; this recent case from Ohio should give you comfort that you are not alone in wrestling with the intent and interpretation of ag. exemption legislation.
Terry v. Sperry
(Ohio Supreme Court, July 12, 2011)
The Sperrys owns property in Milton Township, Ohio on which they live and operate a winery. The property is zoned R-1, Residential. Before starting the winery, the Sperrys contacted the township zoning official and inquired whether a winery could be located on the property. They were told that the business was allowed as a home occupation under the terms of the ordinance, and that a written approval or permit need not be issued. The Sperrys obtained the state and federal permits necessary to operate a winery. They started grape vines and harvested grapes, obtained grapes and grape juice from outside sources, and made and bottled wine on the premises. Five percent of the sales of bottled wine sold on the premises were from grapes planted, cultivated and harvested on the property. Shelf-stable foods were also sole on the premises.
In 2008, the township filed a complaint for temporary and permanent injunctions to stop the use of the property as a retail business and restaurant in an R-1 zone, based on neighbors’ complaints. The parties eventually agreed that the issue for the court was whether the Sperrys’ operation qualified as an agricultural use exempt from zoning regulation by Ohio Revised Code 519.21(A). The trial court and the Ohio Court of appeals both answered this question in the negative (siding with the township). The Sperrys appealed to the Ohio Supreme Court.
After going through the litany of cases holding that zoning regulations should be strictly construed in favor of the landowner, the Supreme Court turned to the relevant Ohio code provisions. The code R.C. 519.21(A) states that the township zoning enabling act “confer[s] 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….” R.C. 519.01 includes in the definition of agriculture “…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.” The township argued first that the Sperrys’ activities do not meet the definition of agriculture because only five percent of the wine sold on the premises was made from grapes grown on the premises, making the sales and processing the primary use, and the grape growing the secondary use. The Supreme Court agreed; however, it went on to state that while the winery itself does not constitute an agricultural use by the general definition of “agriculture,” the exemption in R.C. 519.21(A) contains no requirement that the vinting and selling of wine be a secondary or subordinate use of the property, or that viticulture be the primary use. On the contrary,
If there is agricultural use of the property (viticulture), the township may not regulate the zoning of buildings that are used primarily for vinting and selling wine. The General Assembly included a specific example of what constitutes “the use of buildings or structures incident to the use for agricultural purposes of the land on which such buildings or structures are located” when it followed that phrase with “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.” Therefore, under R.C. 519.21(A), a township may not prohibit the use of buildings for the vinting and selling of wine on a property as long as the property also cultivates grapes for wine making….Had the General Assembly intended that viticulture must be the primary use of the property to qualify under R.C. 519.21(A) for exemption from township zoning, it could have easily expressed that requirement.
The Court then referenced as an example R.C. 519.21(C) which requires that a farm market receiv 50 percent or more of its gross income from produce raised on farms owned or operated by the market operator before being exempt from township zoning. Under the “clear and unambiguous” language of the code, therefore, the Sperrys’ operation was exempt from township zoning. The Supreme Court reversed the judgment of the Court of Appeals
