Supporting Agriculture through Zoning

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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
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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

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Exemption ClausePowers 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 certificate shall be required for
  any such building or structure

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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.

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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)

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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.

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Rural Zoning and Agriculture Exceptions 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.

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Is agricultural zoning a takingof 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

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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

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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 Ohios rural zoning?

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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 regulationspermitted and conditional
  uses, zoning techniques

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Current Types

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

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Typology
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Results
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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.

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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.

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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.

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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 District U-1 Light Green Rural District
R-1 Yellow Low
Density Residential District B-2 Red
Local Business
LI Light Industrial
Source LUC Regional Planning Commission Sou
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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.

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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.

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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.

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Agribusiness

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

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Zoning and Farm MarketsExceptions to Powers not
conferredORC 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.

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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.

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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

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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

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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

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http//cffpi.osu.edu
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Policy Brief http//cffpi.osu.edu
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Extra Slides
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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

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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.

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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

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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

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Agricultural Zoning Authority Purposes 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

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Agricultural Zoning Authority Purposes 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

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What about Zoning and CAFOs?ORC 903.25 States
CAFO Permitting Program
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• Ohios 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.

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CAFOs as Agribusiness
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• 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?

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CAFOs as Agribusiness
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• Legal challenges havent resolved this issuethe
  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