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Supporting Agriculture through Zoning Jill Clark Director, OSU Center for Farmland Policy Innovation support from the OSU Ag and Resource Law Program This project was supported by the USDA Cooperative State Research, Education and Extension Service, USDA, Grant #2006-38428-16876

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supporting agriculture through zoning

Supporting Agriculturethrough Zoning

Jill Clark

Director, OSU Center for

Farmland Policy Innovation

support from the OSU Ag and Resource Law Program

This project was supported by the USDA Cooperative State Research, Education and Extension Service, USDA, Grant #2006-38428-16876

organization
Organization
  • Legal basis for agricultural zoning
    • “Exemption clause”
    • Definition of agriculture
    • Takings
  • Typical types of agricultural zoning
    • Some pros and cons
  • Our study
  • Results
    • Focus on agricultural zoning
  • Recommendations
exemption clause powers not conferred orc 303 21 a 519 21 a
Exemption Clause“Powers not conferred” - ORC 303.21(A); 519.21 (A)
  • Ohio zoning law “confers no power” on counties or townships:
    • To prohibit the use of any land for agricultural purposes
    • To prohibit the construction or use of buildings or structures
      • That are incident to agricultural use 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 certificateshall be required for any such building or structure
definition of agriculture orc 303 01 519 01
Definition of Agriculture - ORC 303.01; 519.01

“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.”

exceptions to powers not conferred orc 519 21 b
Exceptions to “Powers not conferred”- ORC 519.21 (B)
  • If in a platted subdivision approved under subdivision law,
    • Or in any area consisting of 15 or more lots approved under subdivision law that are contiguous to one another, even if divided by a road
  • Then the township may regulate:
    • Agriculture on lots of one acre or less
    • Set back building lines, height, and size of buildings or structures incident to the agricultural use of land
    • And…(continued)
exceptions to powers not conferred orc 303 21 b 519 21 b
Exceptions to “Powers not conferred” –ORC 303.21(B); 519.21 (B)

The county/township may regulate …

  • Dairying and animal and poultry husbandry
    • On lots greater than one acre but not greater than five acres
    • When at least 35% of the lots are developed
    • After 35% of the lots are developed, dairying and animal/poultry husbandry shall be considered a nonconforming use of land pursuant to ORC 519.19.
rural zoning and agriculture exceptions to powers not conferred orc 303 21 b 519 21 b
Rural Zoning and AgricultureExceptions to “Powers not conferred” –ORC 303.21(B); 519.21 (B)
  • But . . .the above exception:
    • Confers no power on any county/township zoning commission, board of commissioners/township trustees, or board of zoning appeals
    • To regulate agriculture, buildings or structures, and dairying and animal and poultry husbandry on lots greater than five acres.
is agricultural zoning a taking of property rights
Is agricultural zoning a “taking”of property rights?
  • Must examine “regulatory takings” law in Ohio:
    • A takings occurs if the regulation “does not substantially advance a legitimate state interest”
    • Or denies a landowner of “all economically viable use of the land”
      • Shemo v. Mayfield Hts., Ohio Supreme Court (2002), 95 Ohio St.3d 59
is it a taking of property rights
Is it a “taking” of property rights?
  • Regulatory takings analysis as applied to agricultural zoning:
    • Failure to allow rezoning from agricultural district to residential district was not a taking because it did not deprive landowner of all economically viable uses of the land
      • Could still use the land for agricultural purposes
      • Or for lesser density residential development
        • Trafalgar Corp. v. Miami County Board of Commissioners, Ohio Supreme Court
our study
Our Study
  • Past and current studies focus on where zoning exists in rural Ohio
      • OSU Extension, Zoning Survey and Ohio Rural Zoning Map, 1998
      • Gough and Cowley, Zoning Survey, 2004
  • What about how zoning exists in rural Ohio?
      • What is the content of Ohio’s rural zoning?
methods
Methods
  • 88 ordinances selected
    • Selection criteria:
      • Region (NW, NE, Central, SW, SE)
      • Level of “exurbanization” (Irwin typology)
  • Purpose and Function
    • Zoning “type” assigned based on:
      • Purpose of the ordinance
        • Preamble, intent language
      • Actual function of the ordinance
        • District regulations—permitted and conditional uses, zoning techniques
current types
Current Types
  • Exclusive agricultural zoning
  • Large lot zoning
  • Area-based zoning
    • Fixed area
    • Sliding scale
  • Cluster
  • Conservation development
  • Agricultural buffer zoning
resulting types focus on supporting agriculture
Resulting TypesFocus on Supporting Agriculture

Exclusive agricultural zoning

  • Perry Township, Muskingum County - This mandatory exclusive agricultural district permits only agriculture, farming, dairying, pasturage, apiculture, horticulture, floriculture, viticulture, and animal and poultry husbandry.
  • Green Township, Ashland County - This mandatory exclusive zoning district permits only agriculture, farm dwellings, home occupations, essential services, and accessory uses, with a minimum lot size of one acre.
pittsfield township lorain county
Pittsfield Township, Lorain County

VOLUNTARY Exclusive agricultural zoning - Example

This voluntary exclusive district is available to landowners of 300 or more acres, with permitted and conditional uses that are primary agricultural or agricultural support related.

resulting types focus on supporting agriculture19
Resulting TypesFocus on Supporting Agriculture

Conditional Use Zoning

  • Milford Township, Defiance County - This ordinance uses a "conditional use" approach in its Agricultural District; for example, single family dwellings are conditional uses, and are granted only if their placement is consistent with the agricultural priorities of the district.
  • Perry Township, Allen County - In Perry Township has a similar policy in its Agricultural District; here, single family dwellings are conditional uses, and must first meet a minimum lot size requirement of 2.5 acres to be considered.
darby township union county
Darby Township, Union County

VOLUNTARY Area-Based Fixed-Scale Zoning

  • One residential lot from every 20 acres
  • Agribusinesses are allowed (some permitted, some conditional)

Darby Township Zoning Map 11/07 A-1 Dark Green= Voluntary Agricultural Zoning DistrictU-1 Light Green = Rural DistrictR-1 Yellow = Low Density Residential DistrictB-2 Red = Local BusinessLI= Light Industrial

Source: LUC Regional Planning Commission

Sou

resulting types focus on supporting agriculture21
Resulting TypesFocus on Supporting Agriculture

Large Lot Zoning

  • Harrison Township, Darke County - The minimum lot size in the Agricultural District of Harrison Township allows single family dwellings, accessory uses and public uses as permitted uses, but with a minimum lot size of 20 acres (churches and private schools have a minimum lot size of 5 acres).
  • Pittsfield Township, Lorain County - This zoning ordinance has a minimum 40 acre lot size in its Voluntary Primary Agricultural Use District.
resulting types focus on supporting agriculture22
Resulting TypesFocus on Supporting Agriculture

Planned District Zoning

  • Miami Township, Montgomery County - The Planned Agriculture District permits agricultural uses, single family dwellings, recreation and open space on tracts of land at lease 20 acres in size that must be developed according to a development plan.

Varying Lot Sizes

  • Harrison Township, Darke County - Harrison Township has a Rural District that prescribes different lot sizes for different uses within the district to reduce the impact of non-park development.
resulting types focus on supporting agriculture23
Resulting TypesFocus on Supporting Agriculture

Lot Split Limitations

  • St Mary's Township, Auglaize County - In St Mary's Township, a single tract of land in the Agricultural District may be subdivided "so as to provide no more than four residential lots which are less than five acres."
  • Montgomery Township, Marion County - In Montgomery Township, a parcel of land in the Agricultural District may be subdivided to provide a maximum of four new residential lots that are less than ten acres.
agribusiness
Agribusiness

How can we plan for agribusinesses?

  • Local definition of agriculture can be more expansive
  • Include a definition for agribusiness
    • Use conditional use provisions
zoning and farm markets exceptions to powers not conferred orc 303 21 519 21
Zoning and Farm MarketsExceptions to “Powers not conferred”ORC 303.21; 519.21

Ohio zoning law “confers no power” on townships:

  • To prohibit the use of any land for a farm market in an agricultural, industrial, residential, or commercial district
  • If 50% or more of the gross income received from the market is derived from produce raised on farms owned or operated by the market operator in a normal crop year
  • But may regulate:
    • Size of the structure, size of parking areas that may be required, set back building lines, and egress or ingress
    • If such regulation is necessary to protect the public health and safety.
observation thus far
Observation thus far…
  • Previous typologies are not enough to describe how agriculture is considered in current codes.
  • Unlike expectations, often purpose and function do not match.
  • Compatibility issues: Stated intent to protect ag from incompatible uses, but residential development is permitted, thus considered compatible?
  • Regional and urbanization trends appear in this initial analysis.
recommendations
Recommendations
  • Plan for agriculture
    • Access existing agricultural resources
    • Examine agricultural capacity and future needs
  • Create a direct linkage between stated district purpose and the function of the district
    • At minimum, for legal reasons
    • Recognize the difference between productive and non-productive purposes of agricultural zoning
recommendations28
Recommendations
  • Reframe agricultural zoning in terms of agriculture
  • Define incompatible uses
  • Focus on density
  • Explore agricultural zoning techniques that are creative and locally relevant
    • Agriculture need not be limited to one zone
recommendations29
Recommendations
  • View ag zoning in combination with other non-ag zones
  • Be more proactive with zoning
  • Address the equity issue
  • Learn from others
    • Multiple agricultural zones; Voluntary agricultural zones; PUDs; density zoning; Use of conditional uses; Consider density versus minimum lot size; Varying lot sizes; Limiting lot splits; Conservation development
the general welfare debate
The General Welfare Debate

H.B. 148, effective Nov. 5, 2004:

Am. Sub. 18, passed Dec. 8, 2004

Sec. 303.02. Except as otherwise provided in this section, in the interest of the public health, safety, and convenience, comfort, prosperity, or general welfare, the board of county commissioners may, in accordance with a comprehensive plan, regulate by resolution …

Sec. 303.02. Except as otherwise provided in this section, in the interest of the public health, and safety, the board of county commissioners may regulate by resolution, in accordance with a comprehensive plan …

the general welfare debate am sub s 18 cont
The General Welfare DebateAm. Sub. S. 18, cont.

Sec. 303.02. … Except as otherwise provided in this section, in the interest of the public convenience, comfort, prosperity, or general welfare, the board, by resolution, in accordance with a comprehensive plan, may regulate the location of, set back lines for, and the uses of buildings and other structures, including tents, cabins, and trailer coaches, and the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of the county, and may establish reasonable residential landscaping standards and residential architectural standards, excluding exterior building materials, for in the unincorporated territory of the county and, for. Except as otherwise provided in this section, in the interest of the public convenience, comfort, prosperity, or general welfare, the board may regulate by resolution, in accordance with a comprehensive plan, for nonresidential property only, the height, bulk, number of stories, and size of buildings and other structures, including tents, cabins, and trailer coaches, percentages of lot areas that may be occupied, sizes of yards, courts, and other open spaces, and the density of population in the unincorporated territory of the county. For all these purposes, the board may divide all or any part of the unincorporated territory of the county into districts or zones of such number, shape, and area as the board determines. All such regulations shall be uniform for each class or kind of building or other structure or use throughout any district or zone, but the regulations in one district or zone may differ from those in other districts or zones.

farmland protection zoning
Farmland Protection Zoning
  • Can a township use zoning to protect or support agriculture?
    • Must not be an exception that applies
      • Agricultural exception in ORC 519.21 applies to “prohibiting” or “regulating” agriculture
      • Does agricultural protection zoning “prohibit or regulate” agriculture?
    • Must have a valid purpose for the zoning
agricultural zoning authority purposes orc 303 01 519 02
Agricultural Zoning Authority Purposes: ORC 303.01; 519.02
  • For purposes of:
    • Public health and safety
  • May regulate:
    • Height, bulk, number of stories, and size of buildings and other structures, including tents, cabins, and trailer coaches
    • Percentages of lot areas that may be occupied
    • Set back building lines
    • Sizes of yards, courts, and other open spaces
    • The density of population
    • The uses of buildings and other structures, including tents, cabins, and trailer coaches
    • The uses of land for trade, industry, residence, recreation
agricultural zoning authority purposes orc 303 02 519 02
Agricultural Zoning AuthorityPurposes: ORC 303.02; 519.02
  • For purposes of:
    • Public convenience, comfort, prosperity, or general welfare
  • May regulate:
    • Location of, set back lines for, and the uses of buildings and other structures
    • Uses of land for trade, industry, residence, recreation, or other purposes
    • And may establish reasonable landscaping standards and architectural standards excluding exterior building materials
agricultural zoning authority purposes orc 303 02 519 0238
Agricultural Zoning AuthorityPurposes: ORC 303.02; 519.02
  • For purposes of:
    • Public convenience, comfort, prosperity, or general welfare
  • For nonresidential property only, may regulate:
    • Height, bulk, number of stories, and size of buildings and other structures
    • Percentages of lot areas that may be occupied
    • Sizes of yards, courts, and other open spaces
    • Density of population
what about zoning and cafos orc 903 25 state s cafo permitting program
What about Zoning and CAFOs?ORC 903.25 – State’s CAFO Permitting Program

39

    • Ohio’s Livestock Environmental Permitting Program also includes an exemption from zoning:
  • An owner or operator of an animal feeding facility who holds a permit through the LEPP or who is operating under an approved operation and management plan,
  • Shall not be required by any political subdivision to obtain a license, permit, or other approval pertaining to manure, insects or rodents, odor, or siting requirements for installation of an animal feeding facility.
cafos as agribusiness
CAFOs as “Agribusiness”

40

  • Definition of “agriculture” does not include “agribusiness”
    • Can a township regulate a CAFO by including it in a definition of “agribusiness”?
    • I.e., redefine livestock activities as “agribusiness”, then prohibit or regulate the “agribusiness”?
cafos as agribusiness41
CAFOs as “Agribusiness”

41

  • Legal challenges haven’t resolved this issue—the actual issue has not been addressed by the courts in these two cases.
    • Meerland Dairy v. Ross Township
    • Carver v. Deerfield Township
  • But, Ohio law dictates that a township cannot enact regulations that are in conflict with a specific statutory grant of authority.
    • I.e., circumscribing the ORC definition of “agriculture”