Questioning the 40-acre rule

By Charlie Claywell - For The Register-Herald

EATON — Preble County’s approach to zoning was at the heart of a question posed by Eaton resident Terry Willis during the Wednesday, Jan. 11, Preble County Commissioners’ meeting.

“We currently have a 40-acre zoning law for preservation of agriculture. Is that correct? Can you explain what type of terms you use to decide whether we are going to uphold that 40-acre law or allow somebody a different kind of use for the land,” Willis said.

In the mid-to-late 1990s, the county passed zoning regulation which implemented, what is often locally referred to as, the 40-acre rule. In general, the regulation prevents farmland parcels from being divided into less than 40 acres. The legislation is used to protect the county’s farmable acreage.

“In general, if it conforms with the local area or if there have been splits off in that area, which is typical with all the small lots we’ve got in the county, you can go up to four lots off a split. Four splits off a parcel and then it has to go under subdivision rules,” Commissioner Chris Day said.

“It seems like we are bypassing the 40-acre law fairly often and we’re going to nullify the law if we keep this up. Plus, I can see a potential for our commissioners to get into trouble because you let ‘him split his, but you’re not going to let me split mine,’ Willis said.

“Every case is different,” commissioner Rodney Creech noted.

“If every case is different you are going to introduce bias,” Willis said.

“If you have a person who wants to put in a work shop and their neighbors show up and are against it then it is probably going to fail. if somebody else wants to put up the same workshop in the same area and their neighbors don’t show up, it’s probably going to pass,” Creech said, explaining the difficulty boards face in zoning cases.

Preble County Farmland

In 1997, the Department of Agriculture Census closest to the year when the 40-acre rule was enacted, the county had 977 farms with a combined total of 197,191 acres. Five years later, the county added about 100 farms, bringing the new total to 1,065. The 2012 Agricultural Census, released in 2014 and the latest available statistics, recorded 1,088 farms in Preble County.

Even though the county experienced an increase in dedicated farmland since the 1990s, the current level is about 3,000 acres less than in the early 1970s — when many of today’s farmers were teens or young adults (The 2012 report pegs the average county farmer’s age at 55). After peaking at 230,616 acres in 2007, farmland fell to 224,243 acres in 2012. In 1974, the county had 227,641 acres.

Compared to 1974, about one-third fewer farms exist today (1,524 vs. 1,088) and fewer local farmers can support themselves with their farm. According to the report, only 42 percent of county farmers can. This is down from 56 percent in 1974.

The report also notes that nearly half of the farms in the county are less than 50 acres.

Recent zoning cases voted on by the Preble County Commissioners:

In zoning case 1413, heard by the board on Wednesday, Jan 4, property owners Robert and Ginger Williams sought approval to split off a 5-acre tract of land containing a home from a 15-acre parcel. The goal, as stated in the meeting, was so a potential buyer could purchase the 5-acre property with a bank loan and purchase the remaining 10 acres via a land contract. The 10-acres would remain zoned agriculture while the 5-acres would be zoned special use. Although the application was denied by the Planning Commission (5-3) and the Zoning Commission (3-1), the Commissioners voted, 3-0 approving the request.

In addressing the application process, Stephen Pope, speaking on behalf of the Williams, admitted that as stated in the planning and zoning commission meetings – if approved, the 10-acre parcel, “…will open that door for another house to be put on the parcel,” but Pope noted the buyer’s intent is to farm the 10-acres. Current owner Robert Williams said that the land has been farmed for nearly 30 years and there are no plans to build on the property.

Commissioner Creech, who admitted “being on the fence,” concerning the vote said, “I was at the zoning meeting and I do see both sides. There have been a lot of people come through zoning and said they weren’t going to do something and they did it and it’s ruined it for a lot of people. And I think once you get bit by the dog, you’re careful.”

Commissioner Denise Robertson voiced a different view.

“I read the minutes (from the zoning boards) and I have a concern — we want our boards to read our land use management plan — but it seems like they’re using it as a hammer to deny things. If what was left in this split was a 40-acre lot, they could build a house there. Does it follow our zoning rules? It seems to,” Robertson said.

Day agreed, adding, “In looking at this application, it’s no different than a lot of other splits we’ve done. I understand all the concerns, but I also understand — as Denise said — in going back and looking at this, it does meet our zoning requirements.”

The Commissioners approved the application, 3-0.

In zoning case 1414, Elizabeth and Brooke Schumm Jr, applied to split their 36 acres into two parcels: a 25-acre tract that would remain zoned agricultural and a new 11-acre tract to be zoned special use. The request was to facilitate the sale of the 11 acres. The application was initially denied by the Planning Commission because the original request sought to create three parcels: a 20-acre, a 5-acre and an 11-acre lot. Creech was complimentary of the lower boards work with the Maryland owners, described as ‘in the 80s’, because the lower board assisted the couple in solving the potential zoning conflicts.

The commissioners approved the amended application for two parcels, 3-0.

In their Wednesday, Nov. 30, meeting, the commissioners heard three zoning cases:

In zoning case 1406, landowner Terry Cooper submitted a request to split his 71-acre tract into two parcels. “This is an outcome of what the county auditor has advised Mr. Cooper to do,” Pope, representing the family, stated. Pope noted that Cooper was in the process of setting up a family trust. The application was approved, 3-0, to create two parcels: a roughly 48-acre parcel zoned agricultural and an approximately 23-acre parcel zoned special use provision. Both parcels have existing homes. The Commissioners approved the application, 3-0, mirroring the decisions of the other zoning boards. The application previously was approved, 6-0, by the Preble County Planning Commission and 4-1 by the Preble County Zoning Commission.

In zoning case 1411, (Swann Beaty Road LLC), Robertson recused herself based on the advice of the county attorney since she lives near the property. The camp and conference center filed an application requesting permission to construct a 5,580-square foot educational facility on approximately 78 acres of land. Chris Romano described the concrete building with a metal roof as one to be used as a multipurpose building that would give campers a place to do activities during bad weather. Two neighbors spoke opposing the application stating the building was being built to develop a weekend wedding business. These neighbors voiced concerns about excessive noise, increased traffic flow and excessive alcohol consumption. They also noted that the time of the public meeting (9:30 a.m.) prevented other neighbors from attending the meeting. The application was approved, 2-0.

In zoning case 1412, Paul and Anne Becker’s application sought to create a one-acre parcel of land for residential use. Part of the land resides inside the city of Eaton despite being zoned agricultural and, as Pope explained, the land was divided up into lots in the 1800s. Those lots are still part of the deed, he noted. The board approved the request, 3-0.

By Charlie Claywell

For The Register-Herald