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Supporting
Agriculture
through Zoning
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
![3D"OSU-b&w"](3D"slide0001_image001.gif")
![](3D"slide0001_image007.gif")
Organiza=
tion
<=
span
style=3D'font-size:88%'>•Legal basi=
s for
agricultural zoning
<=
span
style=3D'font-size:88%'>•Typical ty=
pes of
agricultural zoning
<=
span
style=3D'font-size:88%'>•Our study&=
#13;
<=
span
style=3D'font-size:88%'>•Results=
3;
<=
span
style=3D'font-size:88%'>•Recommenda=
tions
![](3D"slide0014_image008.gif")
Exemption
Clause
“Powers not conferred= 221; - ORC 303.21(A); 519.21 (A)
“Powers not conferred= 221; - ORC 303.21(A); 519.21 (A)
•<=
/span>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=
3;
•Including
buildings or structures that are used primarily for vinting and selling wine and that a=
re located on land any part of which is used for viticulture
–And no zoning certificate sha=
ll be
required for any such
building or structure
Definiti=
on of
Agriculture
- ORC 303.01; 519.01
- ORC 303.01; 519.01
<=
span
style=3D'font-size:92%'>•“Far=
ming;
ranching;
<=
span
style=3D'font-size:92%'>•aquacultur=
e;
apiculture; horticulture; viticulture;
•animal husbandry, including, but not limited to, t=
he
care and raising of livest=
ock,
equine, and fur-bearing animals;
•poultry husbandry and the production of poultry and
poultry products;
<=
span
style=3D'font-size:92%'>•dairy
production;
•the production of field crops, tobacco, fruits,
vegetables, nursery stock,
ornamental shrubs, ornamental trees, flowers, sod, or mushrooms;
<=
span
style=3D'font-size:92%'>•timber;
pasturage;
<=
span
style=3D'font-size:92%'>•any combin=
ation
of the foregoing;
•the processing, drying, storage, and marketing of
agricultural produc=
ts
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)
•If in
a platted subdivision approved under subdivision
law,
–Or i=
n any
area consisting of 15 or more lots approved
under subdivision law that are contiguous
to one another, even if divided by a road
–<=
/span>Agriculture on lots of one acre or less
–<=
/span>Set back building lines, height, and size of buildings or structures incident to the agricultu=
ral use of land
–<=
/span>And…(continued)
Exceptions to “Powers not
conferred” –
ORC 303.21(B); 519.21 (B)
ORC 303.21(B); 519.21 (B)
–The
county/township may regulate …
–<=
/span>Dairying and animal and poultry husbandry
•<=
/span>On lots =
greater
than one acre but not greater than five acres
•<=
/span>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.
•<=
/span>
Rural Zoning and Agriculture
Exceptions to “Powers not conferred” –
ORC 303.21(B); 519.21 (B)
Exceptions to “Powers not conferred” –
ORC 303.21(B); 519.21 (B)
–<=
/span>But
. . .the above exception:
•<=
/span>Confers no power on any county/township zoning commission, board of commissioners/township trustees, or board of zoning appeals
•<=
/span>To regulate agriculture,
buildings or struc=
tures,
and dairying and animal and poultry
husbandry on lots greater than fi=
ve acres.
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Is agricultural zoning a
“taking”
of property rights= ?
of property rights= ?
•Must examine “regulatory takings” law=
in Ohio:
–<=
/span>A takings occurs
if the regulation “does no=
t substantially advance a legitimate state <=
/span>interest”
–<=
/span>Or d=
enies a
landowner of “all economically viable
use of the land”
•<=
/span>Shemo v. Mayfield Hts., Ohio Supreme Court (2002), 95 Ohio St.3d 59
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Is it a “taking” of property rights?<=
/span>
•Regulatory takings analysis as applied to =
agricultural zoning:
–<=
/span>Failure to allow rezoning from agricultural distr=
ict to residential district was not =
a taking
because it did not deprive landowner of all economically viable uses of the land
•<=
/span>Could still use the land for agricultural purpose=
s
•<=
/span>Or for lesser density residential development
=
;
–<=
/span>Trafalgar Corp. v. Miami County Board of <=
/span>Commissioners,
Ohio Supreme Court
Our Stud=
y
•Past and current studies focus on where =
zoning
exists in rural Ohio
•OSU Extension, Zoning Survey and Ohio Rural Zoning
Map, 1998
<=
span
style=3D'mso-special-format:bullet;position:absolute;left:-3.46%'>•<=
/span>Gough
and Cowley, Zoning Survey, 2004
•What about how zoning exists in rural Ohio?
•What is the content of Ohio’s rural
zoning?
![3D"zoning](3D"slide0054_image010.gif")