April 4, 2012
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.

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.