“The zoning and building inspectors are in the wrong here,” Badger said in an email. “The ORC made it illegal for county or township zoning and building to prohibit agritourism in 2016.”
Agritourism is at the heart of Powlette’s argument. It is key to why he:
• Pleaded not guilty in Miamisburg Municipal Court to a misdemeanor criminal charge involving a township zoning violation after neighbors complained about noise and patron conduct;
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• Has challenged the township’s board of zoning appeals ruling in county court;
• Has questioned of the county building department’s halt order on the barn he has not yet completed at 7757 Upper Miamisburg Road.
Badger said an Ohio judge “has ruled that weddings fit the definition of (an agricultural exemption), and since farm buildings, including the one at Stoney Hill, are exempt from building code … the building and zoning inspectors have no authority over this property.”
The Second District Court of Appeals in Greene County in June affirmed a county court ruling siding with farm owners Cheryl and Dale Dixon when Caesarscreek Twp.’s zoning board refused to accept the couple’s agritourism application, court records show.
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The Dixons were using their property for “theme based weddings, receptions, birthday celebrations and reunions,” according to the court’s ruling.
Powlette’s attorney, Greg Page, cited several agriculture-related activities his client performs on the 26-acre property, including bailing hay, the equipment for which is housed in the barn.
“The structure itself is incidental to the farming use,” Page told the board of building appeals Wednesday. “The bailing equipment is stored in it. During the course of the year — 365 days a year — the barn is used for agricultural purposes.
“It has been used on less than 10 occasions for a purpose other than agriculture,” he added.
Page said the township granted Powlette an agricultural exemption several years ago and “it has never been revoked.”
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“The zoning code simply does not apply” to the property, Page said, noting, “we have followed all of the protocols Miami Twp. has set forth.”
Additionally, because of the agricultural exemption, the property is “not subject to the building code, whatsoever,” Page added.
Building appeals board member Michael Mariscalco noted the wedding venue “is not designed primarily as a barn” and “seems to be at the elite end of the spectrum” for such structures.
At the same time, Mariscalco said, whatever the board decides “this may be a matter for the courts and not for” the appeals panel.
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