[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Litchfield Twp. Bd. Of Trustees v. Forever Blueberry Barn, L.L.C., Slip Opinion No. 2020-Ohio-
1508.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.




                          SLIP OPINION NO. 2020-OHIO-1508
    LITCHFIELD TOWNSHIP BOARD OF TRUSTEES, APPELLANT, v. FOREVER
                        BLUEBERRY BARN, L.L.C., APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as Litchfield Twp. Bd. Of Trustees v. Forever Blueberry Barn,
                     L.L.C., Slip Opinion No. 2020-Ohio-1508.]
Township zoning—R.C. 519.21(A)—Exemption for viticulture—Buildings used
        primarily for vinting and selling wine—Court of appeals’ judgment
        affirmed.
    (No. 2019-0418—Submitted February 11, 2020—Decided April 21, 2020)
               APPEAL from the Court of Appeals for Medina County,
                          No. 18CA0023-M, 2019-Ohio-322.
                                  __________________
        STEWART, J.
        {¶ 1} In Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364, 956 N.E.2d
276, ¶ 26, we construed R.C. 519.21(A) and held that “a township may not prohibit
                             SUPREME COURT OF OHIO




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.” In this discretionary appeal, we
consider a related question under R.C. 519.21(A): the quantum of evidence required
to show that a building located upon land on which grapes are cultivated is used
primarily for “vinting and selling wine.” We hold that whether a building is used
primarily for vinting and selling wine under R.C. 519.21(A) is a question of fact
that must be proven by a preponderance of the evidence.
               FACTS AND PROCEDURAL BACKGROUND
       {¶ 2} Appellee, Forever Blueberry Barn, L.L.C. (“Blueberry Barn”), owns
a barn in Litchfield Township on land that is designated as residential. Blueberry
Barn rents the barn for “barn weddings” and other social gatherings. Believing that
Blueberry Barn’s use of its land for those purposes was not permitted in a
residential district, appellant, Litchfield Township Board of Trustees (“township
trustees”), filed a complaint in the Medina County Court of Common Pleas seeking
to enjoin Blueberry Barn from using its land for weddings and other social
gatherings. The trial court issued an injunction barring Blueberry Barn from using
the land for weddings and other social gatherings, but the court later rescinded the
injunction after hearing evidence that Blueberry Barn had planted grapevines on
the land and planned to sell wine made from the grapes to its renters as a condition
of renting the barn. The trial court determined that Blueberry Barn’s use of the land
met the “vinting and selling wine” exemption under R.C. 519.21(A).
       {¶ 3} The Ninth District Court of Appeals reversed, ruling that the trial
court had failed to determine whether the barn, as opposed to the land on which it
is located, was being used primarily for the purpose of vinting and selling wine.
2018-Ohio-345, ¶ 9-10.
       {¶ 4} On remand, the trial court conducted a hearing and determined that
Blueberry Barn had produced wine and stored it in the barn, along with the
equipment used for the production of the wine, and that persons renting the barn




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                                 January Term, 2020




would be required to purchase the wine in order to have exclusive use of the barn.
Because the ability to rent the barn would be dependent upon the purchase of
Blueberry Barn’s wine, the trial court determined that the barn was used primarily
for vinting and selling wine.
          {¶ 5} On further appeal, the Ninth District affirmed.       2019-Ohio-322.
Citing the trial court’s factual finding that the barn is primarily used for the vinting
and selling of wine, the court of appeals determined that the trial court’s judgment
was supported by the weight the evidence. Id. at ¶ 8. A dissenting judge concluded
that the trial court’s decision was against the weight of the evidence because
Blueberry Barn exists “primarily as an event venue.”           Id. at ¶ 14 (Carr, J.,
dissenting).
          {¶ 6} We accepted for review the township trustees’ following proposition
of law:


                 Upon a property where grapes are cultivated, the owner’s use
                 of a building upon said property must be shown to be utilized
                 primarily for the production of wine made from grapes and
                 for the sale of wine produced therein, in order, pursuant to
                 R.C. § 519.21(A), for the use of the building to be exempt
                 from zoning regulation.


                                     ANALYSIS
          {¶ 7} Ohio townships have no inherent zoning power—any zoning
authority they have is conferred by the legislature. Trustees of New London Twp.
v. Miner, 26 Ohio St. 452, 453-454 (1875); Torok v. Jones, 5 Ohio St.3d 31, 32,
448 N.E.2d 819 (1983). Zoning regulations are in derogation of property rights and
are ordinarily construed in favor of the property owners. Boice v. Ottawa Hills,
137 Ohio St.3d 412, 2013-Ohio-4769, 999 N.E.2d 649, ¶ 10. When a statute creates




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an exemption from restrictive zoning provisions, the exemption should be “liberally
construed.” Terry, 130 Ohio St.3d 125, 2011-Ohio-3364, 956 N.E.2d 276, at ¶ 19.
           {¶ 8} R.C. 519.21(A) creates an exemption from restrictive zoning by
townships:


           Except as otherwise provided in divisions (B) and (D) 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.


           {¶ 9} In Terry, we determined that “[t]he 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.” Terry at syllabus. We
explained that there are “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.” Id. at ¶ 21. We concluded that “[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. * * * “ ‘[A]ny’ can mean one vine.” Id.
at ¶ 27.




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                                January Term, 2020




       {¶ 10} This case differs from Terry because it involves the use of a building
(the barn), as opposed to the use of the land itself for viticulture. Blueberry Barn
had produced wine and stored it in the barn, along with the equipment used for the
production of the wine, and it intended to require its renters to purchase the wine
as a condition of having exclusive use of the barn. Use of the land for viticulture
clearly falls within the R.C. 519.21(A) exemption from zoning restriction. This
case asks whether the barn itself is used primarily for vinting and selling wine under
R.C. 519.21(A).
       {¶ 11} R.C. 519.21(A) does not define the word “primary,” so we give the
word its usual and ordinary meaning. In re Foreclosure of Liens for Delinquent
Land Taxes, 140 Ohio St.3d 346, 2014-Ohio-3656, 18 N.E.3d 1151, ¶ 12. The word
“primary” means “of first rank, importance, or value.”            Merriam-Webster’s
Collegiate Dictionary (11th Ed.2003). We determine that whether a building is
used primarily for vinting and selling wine is a question of fact that must be proven
by a preponderance of the evidence.
       {¶ 12} The township trustees argue that Blueberry Barn does not use its
barn primarily for vinting and selling wine because only a small percentage of the
barn’s overall space (4 percent) is used for vinting and selling wine.
       {¶ 13} The word “primary” is not synonymous with the word “majority,”
particularly with respect to the amount of space or time devoted to a particular land
use. Thus, the amount of a building’s interior space, or the time dedicated to a use
of the space, do not always control whether the use is the “primary” use. When a
winery is, like Blueberry Barn, in the initial stages of production and is producing
limited quantities of wine, it is not unreasonable to use the space for other purposes.
That Blueberry Barn used its space in the barn for events does not mean that vinting
and selling wine is not the primary purpose of the barn.
       {¶ 14} Suppose that Ohio Stadium hosts 20 events on a yearly basis, but
only 7 of those events are home games for The Ohio State University football team.




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                             SUPREME COURT OF OHIO




It would be difficult to argue that under that scenario the primary use of Ohio
Stadium is something other than football.
       {¶ 15} Moreover, the trial court determined that Blueberry Barn, in addition
to using the barn to make and store its wine, intended to rent the barn for weddings
and other social events at which the renter would be required to purchase Blueberry
Barn’s wine. Because Blueberry Barn intended to require its renters to purchase
Blueberry Barn’s wine, a trier of fact could determine that the rental facilitated the
vinting and selling of wine and contributed to the barn’s primary use of vinting and
selling wine.
                                  CONCLUSION
       {¶ 16} The trial court determined that the primary use of the barn, and the
events held therein, was to facilitate the sale of Blueberry Barn wine by
conditioning the rental of the barn on the purchase of its wine. This was a proper
application of the primary-use test under R.C. 519.21(A), the factual merit of which
we do not decide because it is a question going to the weight of evidence, and this
court does not ordinarily consider the weight of the evidence. Ross v. Ross, 64 Ohio
St.2d 203, 204, 414 N.E.2d 426 (1980); In re Estate of Hatch, 154 Ohio St. 149,
153, 93 N.E.2d 585 (1950) (“This court is not required to and ordinarily does not
weigh the evidence”).
                                                                 Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, and
DONNELLY, JJ., concur.
                               _________________
       S. Forrest Thompson, Medina County Prosecuting Attorney, and Tom J.
Karris and Brian M. Richter, Assistant Prosecuting Attorneys, for appellant.
       Laribee & Hertrick, L.L.P, and Michael L. Laribee, for appellee.
                               _________________




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