Zoning and Vinting

By Jus­tice Paul E. Pfeifer

Accord­ing to archae­ol­o­gists, peo­ple have been mak­ing wine for at least 8,000 years. So when Gayle Sperry began oper­at­ing Myrd­din Win­ery at her Mil­ton Town­ship home – along with her son Kristofer and daughter-in-law Eve­lyn – they were engag­ing in an ancient and time-honored tra­di­tion. But tra­di­tion didn’t stop the neigh­bors from complaining.

Gayle’s prop­erty is in a res­i­den­tially zoned dis­trict. Under the town­ship zon­ing code, some of the uses per­mit­ted in a res­i­den­tial zone include agri­cul­ture, churches and other places of wor­ship, single-family dwellings, and home occupations.

Home occu­pa­tions must meet sev­eral cri­te­ria. For instance, there can’t be any change to the out­side appear­ance of the build­ing; the busi­ness can’t cre­ate traf­fic or park­ing prob­lems in the neigh­bor­hood, and no equip­ment or process can be used that cre­ates noise, odors, or other prob­lems for neighbors.

The Sperry’s prop­erty – which is less than two acres in size – con­tains 20 grape vines, of which 12 were har­vested. The Sper­rys also got grapes and grape juice from out­side sources. The grapes were destemmed, crushed, and fer­mented, and the wine bot­tled, aged, labeled, and sold, on the premises. Shelf-stable foods were also sold.

Before start­ing the win­ery, Kristofer con­tacted the zon­ing inspec­tor and asked if a win­ery could be located on his mother’s prop­erty. He was told that the busi­ness was allowed and that they needed no writ­ten per­mit. The Sper­rys then obtained the nec­es­sary fed­eral and state per­mits to oper­ate a win­ery on their property.

Despite these steps, in Jan­u­ary 2008 the zon­ing inspec­tor – based on neighbor’s calls – filed a com­plaint in court seek­ing to stop the Sperry’s use of the prop­erty as a retail busi­ness and restau­rant in a res­i­den­tial district.

Two ques­tions ulti­mately came before the court. First, are the win­ery activ­i­ties con­ducted on the prop­erty an Agri­cul­tural Use of the Prop­erty, as defined by the per­ti­nent sec­tion of the Ohio Revised Code. And sec­ond, is the Myrd­din Win­ery exempt from zon­ing reg­u­la­tion by Mil­ton Town­ship under that sec­tion of the Revised Code?

The trial court answered “no” to both ques­tions and granted sum­mary judg­ment to the zon­ing inspec­tor. The court also entered an order per­ma­nently restrain­ing the Sper­rys from oper­at­ing a win­ery on their property.

The Sper­rys appealed, and the court of appeals agreed with the trial court that the pri­mary use of the prop­erty was not viti­cul­ture (the grow­ing of grapes) but rather the vint­ing (the mak­ing) of and sell­ing of wine. The court of appeals con­cluded that the law required that viti­cul­ture be the pri­mary use of the prop­erty in order to qual­ify for the agri­cul­ture exemp­tion from town­ship zoning.

After that, the Sper­rys brought their case before us – the Ohio Supreme Court – for a final review. Because zon­ing res­o­lu­tions deprive a prop­erty owner of cer­tain uses of his land, such res­o­lu­tions – when reviewed by a court – are ordi­nar­ily con­strued in favor of the prop­erty owner. With that in mind, we began our review.

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The state law in ques­tion autho­rizes town­ship trustees, in the inter­est of the pub­lic health and safety, to adopt res­o­lu­tions lim­it­ing the size and loca­tion of build­ings, and the uses of land for trade, indus­try, res­i­dence and other pur­poses. But that power is lim­ited by another sec­tion of the code that pre­vents town­ships from, among other things, pro­hibit­ing the use of land for agri­cul­tural purposes.

The per­ti­nent law states that zon­ing com­mis­sions have no power to pro­hibit the use of any land for agri­cul­tural pur­poses or build­ings used for agri­cul­tural pur­poses, includ­ing build­ings that are used pri­mar­ily for vint­ing and sell­ing wine and that are located on land any part of which is used for viticulture.

“In other words,” as Jus­tice Judith Ann Lanzinger wrote in our major­ity opin­ion, the law pro­vides “two cir­cum­stances under which the use of a prop­erty is exempt from town­ship zon­ing reg­u­la­tions: (1) the prop­erty is used for agri­cul­tural pur­poses or (2) the con­struc­tion or use of buildings…on the prop­erty is inci­dent to an agri­cul­tural use of the land.”

The zon­ing inspec­tor argued that the Sper­rys’ activ­i­ties did not con­sti­tute agri­cul­tural use. The law defines agri­cul­ture as includ­ing farm­ing, ranch­ing, ani­mal hus­bandry and a vari­ety of other things, includ­ing viti­cul­ture. It also includes the pro­cess­ing of agri­cul­tural products.

The grow­ing and har­vest­ing of grapes on their prop­erty sat­is­fies the term “viti­cul­ture,” but to qual­ify as “agri­cul­ture” under the law’s def­i­n­i­tion, the vint­ing and sell­ing activ­ity must be sec­ondary to the pro­duc­tion of agri­cul­tural prod­ucts. But only five per­cent of the winery’s sales are from grapes pro­duced on the prop­erty, so the win­ery oper­a­tion doesn’t fall within the def­i­n­i­tion of “agriculture.”

There is the other exemp­tion though, which pro­vides that the town­ship has no power to pro­hibit the use of build­ings “inci­dent to the use for agri­cul­tural pur­poses of the land on which such buildings…are located, includ­ing buildings…used pri­mar­ily for vint­ing and sell­ing wine and that are located on land any part of which is used for viticulture.”

When the court of appeals reviewed this case, it focused on the phrase “inci­dent to” and deter­mined that the agri­cul­tural pur­pose must be the pri­mary use of the prop­erty. The court appeared to give no weight to the later phrase that men­tions build­ings used for the vint­ing and sell­ing of wine located on land any part of which is used for viticulture.

Our court con­cluded – by a seven-to-zero vote – that the lan­guage of the law was clear and unam­bigu­ous. If there is agri­cul­tural use of the prop­erty – viti­cul­ture included – the town­ship may not reg­u­late the zon­ing of build­ings that are used pri­mar­ily for vint­ing and sell­ing wine.

Con­trary to the court of appeals’ deter­mi­na­tion, there’s no require­ment in the law that the vint­ing and sell­ing of wine be a sec­ondary use of the prop­erty or that viti­cul­ture be the pri­mary use.

Because Myrd­din Win­ery con­ducts an exempt use of the prop­erty, we con­cluded that the Mil­ton Town­ship zon­ing reg­u­la­tions do not apply. We there­fore reversed the court of appeals and sent the case back to the trial court for fur­ther proceedings.

EDITOR’S NOTE: The case referred to is: Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364. Case No. 2010–0810. Decided July 12, 2011. Major­ity opin­ion writ­ten by Jus­tice Judith Ann Lanzinger.

Posted by Paul Pfeifer on Apr 9 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.