Supporting Agriculture through Zoning

1. 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

2. 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

3. 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

4. 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.”

5. 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)

6. 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.

7. 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.

8. 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

9. 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

10. 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?

12. 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

13. Current Types • Exclusive agricultural zoning • Large lot zoning • Area-based zoning • Fixed area • Sliding scale • Cluster • Conservation development • Agricultural buffer zoning

14. Typology

15. Results

17. 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.

18. 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.

19. 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.

20. 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

21. 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.

22. 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.

23. 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.

24. Agribusiness How can we plan for agribusinesses? • Local definition of agriculture can be more expansive • Include a definition for agribusiness • Use conditional use provisions

25. 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.

26. 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.

27. 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

28. 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

29. 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

30. http://cffpi.osu.edu

31. Policy Brief – http//cffpi.osu.edu

32. Extra Slides

33. 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 …

34. 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.

35. 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

36. 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

37. 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

38. 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

39. 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.

40. 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”?

41. 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”