# Terry v. Sperry

> Ohio Supreme Court · July 12, 2011 · 130 Ohio St. 3d 125

URL: https://www.frixlaw.com/law-library/cases/2691097

## Case

- **Full name:** Terry, Appellee, v. Sperry Et Al., Appellants
- **Court:** Ohio Supreme Court
- **Decided:** July 12, 2011
- **Citations:** 130 Ohio St. 3d 125; 2011 Ohio 3364
- **Precedential status:** Published
- **Opinion:** Opinion by Lanzinger
- **Judges:** Lanzinger, O'Connor, Pfeifer, O'Donnell, Cupp, Brown, Stratton
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2691097

## Opinion text

[Cite as Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364.]

TERRY, APPELLEE, v. SPERRY ET AL., APPELLANTS.
[Cite as Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364.]
Township zoning—R.C. 519.21(A)—Exemption for viticulture.
(No. 2010-0810—Submitted April 20, 2011—Decided July 12, 2011.)
APPEAL from the Court of Appeals for Mahoning County, No. 08-MA-227,
186 Ohio App.3d 798, 2010-Ohio-1299.
__________________
SYLLABUS OF THE COURT
The exemption from township zoning in R.C. 519.21(A) does not require for its
application that viticulture be the primary use of property engaged in the
vinting and selling of wine.
__________________
LANZINGER, J.
{¶ 1} In this case, we are asked to interpret R.C. 519.21(A) to determine
when a winery may be exempt from township zoning regulations.
Case Background
{¶ 2} Appellant Gayle Sperry owns property and resides in Milton
Township at 3020 Sylvandale, Berlin Center, a.k.a. 3020 Scenic Drive.1 She and
her son and daughter-in-law, appellants Kristofer and Evelyn Sperry, operate
Myrddin Wine Company, L.L.C., d.b.a. Myrddin Winery, at this location.
{¶ 3} The property is in an R1 residentially zoned district. According to
the Milton Township Zoning Resolution, Section 5 B, R-1, Residential District,
and Section 4, Definitions, the following uses are permitted: agriculture, single-
family dwellings, churches and other places of worship, schools, home

1. Appellants contend that the property is approximately two acres, but appellee states that it is
only 0.75 acres.
SUPREME COURT OF OHIO

occupations as defined in Section 4, automobile parking spaces, and accessory
buildings. “Home occupation” is defined as an occupation conducted in a
dwelling unit or small garage that meets the following criteria:
{¶ 4} “a. No person other than members of the family residing on the
premises shall be engaged in such occupation conducted entirely in the dwelling
unit, or garages containing 600 square feet or less.
{¶ 5} “b. The use of the dwelling unit of the home occupation shall be
clearly incidental and subordinate to its use for residential purposes by its
occupants, and not more than 25% of the total floor area of the dwelling unit shall
be used in the conduct of the home occupation;
{¶ 6} “c. There shall be no change in the outside appearance of the
building or premises or other visible evidence of conduct of such home
occupation other than one sign as permitted in Section 8C of this Ordinance;
{¶ 7} “d. Sufficient offstreet parking shall be provided based on the type
of home occupation and such occupation shall not create traffic, parking,
sewerage, or water use in excess of what is normal in a residential neighborhood.
{¶ 8} “e. No equipment or process shall be used in such occupations
which creates noise, vibration, glare, fumes, odors, or electrical interference
detectable to the normal senses off the lot, if the occupation is conducted in a
single family residence, or outside the dwelling unit if conducted in other than a
single family residence.”
{¶ 9} Before starting the winery, Kristofer Sperry contacted the Milton
Township zoning inspector and inquired whether a winery could be located on his
mother’s property. He was told that the business was allowed and that a written

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January Term, 2011

approval or permit did not need to be issued.2 The Sperrys then procured federal
and state permits to operate a winery on their property.
{¶ 10} The property itself contains 20 grape vines, of which 12 were
harvested. The Sperrys also obtained grapes and grape juice from outside
sources. The grapes were destemmed, crushed, and fermented, and the wine was
bottled, aged, labeled, and sold, on the premises. Shelf-stable foods were also
sold. Five percent of the sales of bottled wine sold at the winery were from
grapes planted, cultivated, and harvested on the property.
{¶ 11} In January 2008, based on neighbor’s calls, Jenifer Terry, zoning
inspector for Milton Township, filed a complaint for preliminary and permanent
injunction seeking to enjoin the Sperrys’ use of the property as a retail business
and restaurant in a residentially zoned district, R-1. After stipulations of fact were
filed with the common pleas court, the parties filed motions for summary
judgment. They agreed that the issues before the court were the following:
{¶ 12} “1. Are the winery activities conducted on the property an
Agricultural Use of the Property as defined in Section 519.01 of the Ohio Revised
Code?
{¶ 13} “2. Is the Myrddin Winery exempt from zoning regulation by
Milton Township pursuant to Section [519.21(A)] of the Ohio Revised Code?”
{¶ 14} The trial court answered both questions negatively 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 then filed a notice of appeal to the Seventh District Court of Appeals.
{¶ 15} The appellate court affirmed the judgment, agreeing with the trial
court that the primary use of the property was not viticulture (the growing of

2. According to appellee, a zoning permit is issued only to construct a building. A request to
engage in a home occupation did not require an application, nor would the zoning inspector issue
any written approval or permits when allowing home occupations.

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grapes), but rather the vinting (the making) of and selling of wine. The court of
appeals concluded that both R.C. 519.01 and R.C. 519.21(A) required that
viticulture be the primary use of the property in order to qualify for the agriculture
exemption from township zoning.
{¶ 16} We accepted the Sperrys’ discretionary appeal. The Sperrys
contend that under R.C. 519.21(A), their winery is exempt from township zoning
regulations because they also engage in viticulture on the property within the
meaning of the statute.
{¶ 17} We agree with appellants that the exemption from township zoning
in R.C. 519.21(A) does not require for its application that viticulture be the
primary use of property engaged in the vinting and selling of wine, and therefore
we reverse the judgment of the court of appeals.
Law and Analysis
Township Zoning Power
{¶ 18} Ohio townships have no inherent or constitutionally granted police
or zoning power. Yorkavitz v. Bd. of Columbia Twp. Trustees (1957), 166 Ohio
St. 349, 351, 2 O.O.2d 255, 142 N.E.2d 655. “Accordingly, the zoning authority
possessed by townships in the state of Ohio is limited to that which is specifically
conferred by the General Assembly.” Bd. of Bainbridge Twp. Trustees v.
Funtime, Inc. (1990), 55 Ohio St.3d 106, 108, 563 N.E.2d 717.
{¶ 19} In addition, “[a]ll zoning decisions, whether on an administrative
or judicial level, should be based on the following elementary principles which
underlie real property law. Zoning resolutions are in derogation of the common
law and deprive a property owner of certain uses of his land to which he would
otherwise be lawfully entitled. Therefore, such resolutions are ordinarily
construed in favor of the property owner. Restrictions on the use of real property
by ordinance, resolution or statute must be strictly construed, and the scope of the
restrictions cannot be extended to include limitations not clearly prescribed.”

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January Term, 2011

(Citations omitted.) Saunders v. Clark Cty. Zoning Dept. (1981), 66 Ohio St.2d
259, 261, 20 O.O.3d 244, 421 N.E.2d 152. Furthermore, exemptions from
restrictive zoning provisions are to be liberally construed. State ex rel. Moore Oil
Co. v. Dauben (1919), 99 Ohio St. 406, 124 N.E. 232, paragraph one of the
syllabus.
The Zoning Exemption of R.C. 519.21(A)
{¶ 20} R.C. 519.02 authorizes township trustees, in the interest of the
public health and safety, to adopt resolutions limiting the size and location of
buildings and other structures and the uses of land for trade, industry, residence,
recreation, or other purposes. That power, however, is limited by R.C. 519.21.3

3. {¶ a} R.C. 519.21 provides:
{¶ b} “(A) Except as otherwise provided in division (B) of this section, sections 519.02 to
519.25 of the Revised Code confer no power on any township zoning commission, board of
township trustees, or board of zoning appeals to prohibit the use of any land for agricultural
purposes or the construction or use of buildings or structures incident to the use for agricultural
purposes 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.
{¶ c} “(B) A township zoning resolution, or an amendment to such resolution, may in any
platted subdivision approved under section 711.05, 711.09, or 711.10 of the Revised Code, or in
any area consisting of fifteen or more lots approved under section 711.131 of the Revised Code
that are contiguous to one another, or some of which are contiguous to one another and adjacent to
one side of a dedicated public road, and the balance of which are contiguous to one another and
adjacent to the opposite side of the same dedicated public road regulate:
{¶ d} “(1) Agriculture on lots of one acre or less;
{¶ e} “(2) Buildings or structures incident to the use of land for agricultural purposes on lots
greater than one acre but not greater than five acres by: set back building lines; height; and size;
{¶ f} “(3) Dairying and animal and poultry husbandry on lots greater than one acre but not
greater than five acres when at least thirty-five per cent of the lots in the subdivision are developed
with at least one building, structure, or improvement that is subject to real property taxation or that
is subject to the tax on manufactured and mobile homes under section 4503.06 of the Revised
Code. After thirty-five per cent of the lots are so developed, dairying and animal and poultry
husbandry shall be considered nonconforming use of land and buildings or structures pursuant to
section 519.19 of the Revised Code.
{¶ g} “Division (B) of this section confers no power on any township zoning commission,
board of 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.
{¶ h} “(C) Such sections confer no power on any township zoning commission, board of
township trustees, or board of zoning appeals to prohibit in a district zoned for agricultural,

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That statute is divided into three subsections and, in general, prevents townships
from prohibiting the use of land for agricultural purposes (R.C. 519.21(A)), limits
a township’s ability to regulate agriculture in platted subdivisions (R.C.
519.21(B)), and limits the regulation of farm markets (R.C. 519.21(C)). This case
does not involve a farm market, and although the Sperry property is located in a
platted subdivision, Milton Township has not adopted any zoning regulations that
it would be permitted to adopt by R.C. 519.21(B). Thus, the section at issue here
is R.C. 519.21(A).
{¶ 21} R.C. 519.21(A) provides that “sections 519.02 to 519.25 of the
Revised Code confer no power on any township zoning commission, board of
township trustees, or board of zoning appeals to prohibit the use of any land for
agricultural purposes or the construction or use of buildings or structures incident
to the use for agricultural purposes 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.” (Emphasis added.) In other words, R.C. 519.21(A) 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 or structures on the property is incident to an
agricultural use of the land.

industrial, residential, or commercial uses, the use of any land for a farm market where fifty per
cent 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. However, a board of
township trustees, as provided in section 519.02 of the Revised Code, may regulate such factors
pertaining to farm markets as size of the structure, size of parking areas that may be required, set
back building lines, and egress or ingress, where such regulation is necessary to protect the public
health and safety.”

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January Term, 2011

The Meaning of “Agriculture”
{¶ 22} R.C. 519.21(A) begins by saying that township zoning boards may
not prohibit the use of land for agricultural purposes. The zoning inspector argues
that the Sperrys’ activities on their property do not constitute an agricultural use.
To determine whether the property is exempt from township zoning, however, we
must examine the statutory meaning of “agriculture.” For purposes of the
township zoning statutes, R.C. 519.01 defines “agriculture” generally as
“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.” (Emphasis added.)
{¶ 23} Viticulture is “the cultivation or culture of grapes esp. for wine
making.” Merriam-Webster Collegiate Dictionary (11th Ed.2003) 1399.
According to Webster’s Third New International Dictionary (2002) 2553, “vint”
means “to make (wine) from fruit.” When we consider the statutory definition of
“agriculture,” the Sperry property may potentially be seen to have a use for
agriculture either in viticulture (the growing of grapes) or in the processing and
marketing of agricultural products (the vinting and selling of wine). The statute
does not establish a minimum number of vines needed for cultivation to constitute
viticulture; the growing and harvesting of grapes on the Sperry property thus
satisfies the term “viticulture.” To qualify as “agriculture” under R.C. 519.01’s
definition, the Sperrys’ vinting and selling activity must be secondary to the
production of agricultural products (i.e., the grapes). In this case, however, only

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five percent of the winery’s sales are derived from grapes produced on the
property. Because the vinting and selling of wine on the Sperry property are not
secondary to the viticulture activities, the winery operation does not fall within
the general definition of “agriculture.”
Use of Buildings or Structures Incident to the Use for Agricultural Purposes
{¶ 24} Even though the winery itself does not constitute an agricultural
use by the general definition of “agriculture,” there is a second circumstance
under which the use of the building for vinting and selling wine may be exempt
from township zoning. The exemption in R.C. 519.21(A) specifically provides
that the township has no power to prohibit the “use of buildings or structures
incident to the use for agricultural purposes 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.” (Emphasis added.)
{¶ 25} The court of appeals focused on the meaning of the phrase
“incident to” and determined that the General Assembly intended that the
agricultural purpose must be the primary use of the property. The court, however,
appeared to give no import to the phrase “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.” When we engage in statutory interpretation,
our first duty is to determine whether the statute is clear and unambiguous.
Sherwin-Williams Co. v. Dayton Freight Lines, Inc., 112 Ohio St.3d 52, 2006-
Ohio-6498, 858 N.E.2d 324, ¶ 15. “ ‘[W]here the language of a statute is clear
and unambiguous, it is the duty of the court to enforce the statute as written,
making neither additions to the statute nor subtractions therefrom.’ ” Id. at ¶ 14,
quoting Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 451, 2002-
Ohio-6718, 780 N.E.2d 543, ¶ 14.

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January Term, 2011

{¶ 26} We conclude that the language is clear and unambiguous. If there
is agricultural use of the property (viticulture), the township may not regulate the
zoning of buildings that are used primarily for vinting and selling wine. The
General Assembly included a specific example of what constitutes the “use of
buildings or structures incident to the use for agricultural purposes of the land on
which such buildings or structures are located” when it followed that phrase with
“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.” Therefore,
under R.C. 519.21(A), a township may not prohibit the use of buildings for the
vinting and selling of wine on a property as long as the property also cultivates
grapes for wine making.
{¶ 27} Contrary to the court of appeals’ determination, there is no
requirement in R.C. 519.21(A) that the vinting and selling of wine be a secondary
or subordinate use of the property or that viticulture be the primary use of the
property. A township may not prohibit the use of a property for vinting and
selling wine if any part of the property is used for viticulture. As appellee’s
counsel acknowledged in oral arguments, “any” can mean one vine. Appellee
nonetheless argues that we should apply a commonsense approach and require a
more substantial viticulture operation. However, that would be contrary to the
plain language of the statute. Had the General Assembly intended that viticulture
must be the primary use of the property to qualify under R.C. 519.21(A) for
exemption from township zoning, it could have easily expressed that requirement,
as it did in the definition of “agriculture” in R.C. 519.01 or as it did in R.C.
519.21(C), requiring that a farm market receive 50 percent or more of its gross
income from produce raised on farms owned or operated by the market operator
before being exempt from regulation.

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{¶ 28} We therefore hold that pursuant to R.C. 519.21(A), a township has
no zoning authority over the use of buildings or structures for the vinting and
selling of wine on property that is also used for viticulture.
Conclusion
{¶ 29} Because Myrddin Winery conducts an exempt use of the property
pursuant to R.C. 519.21(A), the zoning regulations by Milton Township do not
apply. We reverse the judgment of the Seventh District Court of Appeals and
remand to the trial court for further proceedings.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, CUPP, and MCGEE BROWN,
JJ., concur.
LUNDBERG STRATTON, J., concurs in judgment only.
__________________
Mark S. Finamore and Veronica Buetel, for appellee.
Wright Law Co., L.P.A., and David S. Pennington, for appellants.
______________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2691097. Public record. Not legal advice.