Swanton Township suing local grower over alleged land use violations

Jun. 19—Swanton Township is suing a local farmers' market vendor who it says is illegally growing flowers commercially at his family's rural property.

In a civil complaint filed in May, the township calls for a permanent injunction to stop all production and sales from The Soul Patch, a plant and flower nursery run by 22-year-old Devon Shaw on his grandmother's property at 12300 Soul Rd.

"This lawsuit arises out of the unlawful use of the property, which is located in a quiet residential neighborhood," the complaint reads, citing violations of the Swanton Township Zoning Resolution. "Nursery and greenhouse structures are not permitted on the property nor are commercial business uses permitted to operate on the property."

It also classifies "junk and construction materials" on the property as "blight" requiring abatement.

A response filed Friday by Mr. Shaw's attorney, Barry Fissel, called the complaint a violation of state law that forbids a township from prohibiting any agricultural land use.

"The township's lawsuit against Devon and his grandmother to try to stop them from using the family farm for agricultural purposes, after it has been used for agricultural purposes for more than 60 years, is explicitly forbidden ... and is an outrageous abuse of township power," the response says.

Mr. Fissel additionally told The Blade it is "sad that township officials are unwilling to abide by the limitations in their authority and are subjecting a young entrepreneur to crushing legal expenses to defend his right to engage in an agricultural business."

Attorney Gregory Wagoner, representing the township, did not respond to Mr. Fissel's remarks. He said the township's position is clearly outlined in the complaint and declined to comment further while litigation is ongoing, but did explain why the property came under review.

"Swanton Township commenced this action after receiving several complaints from concerned citizens regarding the condition and ongoing commercial activities on the property in violation of the Swanton Township Zoning Ordinance and Ohio law," Mr. Wagoner said in an emailed statement.

Mr. Shaw, who graduated from Ohio State University's Agricultural Technical Institute with a horticulture and greenhouse management degree, started The Soul Patch in 2019 after his grandfather died and he moved to the property to help care for his grandmother, who still lives there.

He's been selling his plants at the Toledo Farmers' Market for three years and, according to a GoFundMe page created by his girlfriend to raise money for his legal expenses. He also sells plants to In Bloom Flowers & Gifts in Maumee, plants window boxes and pots for some storefronts in Toledo and Wauseon, provides chrysanthemums in the fall and evergreen wreaths during the winter holidays for Fulton County Special Olympics fund-raisers, and arranges holiday centerpieces for sale to residents at Kingston Residence of Perrysburg.

"The Soul Patch is an agriculture business operating on agriculturally zoned land, much like his grandpa's business in 1974," the GoFundMe page says, referring to the Winterfeld Family Flowers greenhouse his grandfather formerly operated at the site. "The Soul Patch does not sell on the property or distribute large quantities of plants off the property. Devon simply loads and drives a Chevy pickup truck and trailer to farmers' markets around town to sell his homegrown flowers."

The land-use dispute started in March after at least four people, including neighbors, reported the property related to preparations to build a fourth greenhouse, construction materials being stored in the front yard, and noise complaints.

"Devon Shaw routinely works in the greenhouse structures until late in the night, playing loud music and under bright lights," the civil complaint stated.

As a result, Township Zoning Inspector Anthony Boellner warned Mr. Shaw and his grandmother, Lois Winterfeld, in a March 9 letter that they had 10 days to cease commercial activity and remove the greenhouse structures and all blight from the property or face potential injunctions, fines, court costs, and criminal charges.

According to the township's zoning laws, approved "agriculture" includes horticulture and the production of nursery stock, ornamental shrubs, ornamental trees, and flowers. A section further defining an agricultural district also notes that some services "may include some commercial activities which are an integral part of agriculture, such as roadside stands or structures used for the sale of agricultural produce or products and/or nursery and greenhouse sales areas...."

It also permits "accessory buildings," which are "incidental to that of the main building or the use of this land."

The property is zoned agricultural, but its land use in Lucas County land records is listed as single-family only, the complaint says.

The township also argues that nursery and greenhouse operations and structures are "only for sites zoned M-1 Limited Industrial," and that the storage, packaging, assembly, display, sale, delivery, and transportation for sale of plants from the property designates Soul Patch as a commercial business.

That characterization could call into question any number of vendors who bring their goods to area farmers markets, said Dan Madigan, director of the Farmers' Market Association of Toledo.

He's not aware of any other growers who have faced similar legal actions, including other growers operating greenhouses and hoop houses in Swanton. He said he was disappointed in the township's decision to "single out" Mr. Shaw.

"He's a young guy. We like to encourage as many young farmers as possible because they're the future," Mr. Madigan said.

Andy Keil, who operates a greenhouse a mile from Mr. Shaw's property and also sells his plants at area farmers' markets, said the township has never questioned his business. Property records show his 11-acre farm is also zoned "agricultural," but under land use it is listed as "cash grain or general farm."

Mr. Keil said he wants Mr. Shaw's business to succeed, especially as he is preparing to retire in November.

"The thing that upsets me is this is a dying industry unless you're a mega greenhouse, and finally we get some young people interested and now the township wants to pull bullcrap on him," Mr. Keil said.

Mr. Fissel rejects any characterization of The Soul Patch's activities as a commercial business, especially township claims that Mr. Shaw's plants "are largely sourced from other locations" and "temporarily stored at the property" before being transported for sale.

"He doesn't sell any plants that he does not grow from 1-2 inches tall all the way to maturity," Mr. Fissel said, pointing to the 2-inch mum cuttings Mr. Shaw is currently caring for.

He also argues that Mr. Shaw has moved all construction materials to a barn in the back of the property that is neither visible from the road nor from neighboring properties, satisfying any complaints about blight. All other materials visible on the property he considers "supplies" for the business.

"He has done a lot of work to attempt to be a good neighbor," Mr. Fissel said.

A preliminary injunction hearing is scheduled July 8 at 9 a.m. before Lucas County Common Pleas Judge Linda Jennings.

First Published June 19, 2021, 7:00am