Fighting for the right to make wine
By A.J. Wagner
According to Myrddin Winery’s website, “Wine is sexy! Wine is food! Wine is at the heart of many of our most meaningful experiences. Wine is a never-ending quest to harness nature within the confines of a (most often) 750 ml bottle.”
Myrddin Winery, a small family owned venture on Lake Milton in northeast Ohio, was in danger of being stomped out by the bureaucrats of Milton Township who objected to a winery being located in a residential area. This is a story of conflict in a neighborhood where the ideals of owning private property run up against their true nemesis: zoning laws.
Myrddin Winery is the concept of Gayle Sperry, her son, Kristofer and his wife, Evelyn. Gayle owned lakeside property in an area of Milton Township zoned for residential use.
Zoning laws are used in most communities to assure consistent land usage within an area or zone. Zoning relegates single-family residences, apartments, offices, commercial businesses and factories to their own zone. Zoning laws can be very complex and they vary widely from community to community.
Kristofer was aware that his mother’s property was zoned for residential use so he contacted the local zoning inspector and inquired whether a winery could be located on his mother’s property. He was given the green light as the business would be a “home occupation.”
“Home occupation” means an occupation conducted in a dwelling unit or small garage that is run by the family occupying the property. The business must be restricted in size, sufficient off-street parking must be available and only a small sign may be erected to indicate the presence of the business. The home occupation cannot create traffic, parking, sewerage or water use in excess of what is normal in a residential neighborhood, and any equipment used cannot create noise, vibration, glare, fumes, odors or electrical interference detectable to the normal senses off the lot.
In other words, the residential zone is for family homes; don’t let your home business detract from that.
The Sperrys planted 20 grape vines from which they make and bottle wine. They also obtain grapes and grape juice from outside sources for wine making. The wine is sold on the property along with other shelf-stable foods. Only five percent of the sales of bottled wine sold are from grapes planted, cultivated and harvested on the property.
Neighbors complained and the Milton Township Zoning Department reneged on their permission because the product sold was not primarily from the property and because the home occupation limitations were exceeded. The Sperrys argued that agricultural use was permitted and that Ohio law provided an exemption for wineries.
No one disagreed as to the facts, only as to the law. So the matter was submitted to the trial court for summary judgment – a written decision made after written arguments and without a trial. The law in question was §519.21(A) of the Ohio Revised Code which states:
… 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.
The trial court sided with the township and ordered the winery closed. The Sperrys then filed an appeal and the appeals court agreed with the trial court that the primary use of the property was not viticulture (growing of grapes), but rather the vinting (making) of and selling of wine.
Last month’s decision by the Ohio Supreme Court in the case of Terry v. Sperry, Slip Opinion No. 2011-Ohio-3364 put the matter to rest when they said, and I paraphrase, “Read the statute!” The statute says you can’t stop agriculture or building incident to agriculture “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.” The buildings complained of are used primarily for vinting and selling wine and they are on land part of which is used for viticulture.
So you can now go up to Lake Milton and buy some wine or hear the residents whining, “There goes the neighborhood.”
Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.
A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.