Summary of a Recent
Judicial Development in
Animal Feeding Operations

Township Exceeded Zoning Authority by Requiring Dairy CAFO
to Obtain a Conditional Use Permit

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Meerland Dairy L.L.C. v. Ross Township, 2008 WL 1991886 (Ohio Ct. App. 2008), the Second District Court of Appeals of Ohio reversed the Court of Common Pleas, which held that a confined animal feeding operation (CAFO) operator must obtain a conditional use permit in order to be in compliance with a local zoning ordinance. The Court of Appeals held that the township did not have the power to regulate the CAFO except as related to those matters exclusively granted to the state director of agriculture under the CAFO statute, and that the zoning regulation violated Ohio Revised Code § 519.21 because agribusinesses were conditional uses for which permits were required.

Background

Property owners sought to operate a dairy farm accommodating up to 2,100 cows. Id. at *1. After making a considerable investment by purchasing the land and creating plans for the operation, property owners obtained a CAFO license from the Ohio Department of Agriculture. Id. In 2005, the township amended the township zoning code. Id. The amended zoning regulation prohibited the operation of an agribusiness unless a conditional use permit was obtained from the appropriate zoning authority. Id. Property owners commenced the underlying action asking the Court of Common Pleas to declare that the zoning regulation, as amended, was prohibited by Ohio Revised Code § 519.21, and to grant injunctive relief preventing the township from enforcing the amended regulation to prohibit property owners' operation of their proposed dairy farm. Id. The case was referred to a magistrate who filed a decision in favor of the township. Id. Property owners timely appealed. Id.

Arguments

Property owners' five assignments of error on appeal were interrelated and summarized into one question: does Ohio Revised Code § 519.21 prohibit the amended regulation that the township adopted? Id. at *1. The township argued that the regulation may not have been authorized by Ohio Revised Code § 519.21, but that the township was authorized to regulate property owners' proposed use of their land by Ohio Revised Code § 903.25, which the township argued created an exception to Ohio Revised Code § 519.21. Id. at *2. Additionally, the township argued that the property owners offered no evidence to show that their operation satisfied the relevant definition of "agriculture" in Ohio Revised Code § 519.21. Id. at *3.

Analysis and Holdings

A township has no inherent zoning power. Id. at *1. Whatever power a township has to regulate the use of land through zoning regulations is limited to authority expressly delegated and specifically conferred by statute. Id. Any zoning ordinance which violates an explicit statutory command of the General Assembly is clearly preempted, invalid, and unenforceable. Id. Applying the above listed principles, the court held that the trial court erred in finding that the township's zoning regulation of property owners' dairy was not prohibited by law. Id. at *4. The regulation and the conditional-use permit were both prohibited by Ohio Revised Code § 519.21. Id. The court also held that keeping 2,100 dairy cows on 100 acres of unincorporated land for the purposes of milk production was sufficient to be classified as an agricultural operation. Id. at *3.

The case was decided on May 9, 2008.