Property
The summertime slowdown hasn't affected the number of agricultural law questions we've received from across Ohio. Here's a sampling of recent questions and answers:
Is a tree service business considered “agriculture” for purposes of Ohio rural zoning?
No, tree trimming and tree cutting activities are not listed in the definition of agriculture in Ohio’s rural zoning laws, although the definition does include the growing of timber and ornamental trees. The definition ties to the “agricultural exemption” and activities that are in the “agriculture” definition can be exempt from county and township zoning. Here is the definition, from Ohio Revised Code sections 303.01 and 519.01:
"agriculture" includes farming; ranching; algaculture meaning the farming of algae; aquaculture; apiculture; horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any combination of the foregoing; and the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production.
What are the benefits of being enrolled in the “agricultural district program” in Ohio, and is there a penalty for withdrawing from the program?
There are three benefits to enrolling farmland in the agricultural district program:
- The first is the nuisance protection it offers a landowner. A landowner can use the defense the law provides if a neighbor who moves in after the farm was established files a lawsuit claiming the farm is a “nuisance” due to noise, odors, dust, etc. Successfully raising the defense and showing that the farm meets the legal requirements for being agricultural district land would cause the lawsuit to be dismissed.
- The second benefit is that the law also exempts agricultural district land from assessments for water, sewer and electric line service extensions that would cross the land. As long as the land remains in agricultural district program, the landowner would not be subject to the assessments. But if the land is changed to another use or the landowner withdraws the land from the agricultural district program, assessments would be due. The assessment exemption does not apply to a homestead on the farmland, however.
- A third benefit of the agricultural district program law is that it requires an evaluation at the state level if agricultural district land is subject to an eminent domain action that would affect at least 10 acres or 10% of the land. In that case, the Director of the Ohio Department of Agriculture must be notified of the eminent domain project and must assess the situation to determine the effect of the eminent domain on agricultural production and program policies. Both the Director and the Governor may take actions if the eminent domain would create an unreasonably adverse effect.
As for the question about a withdrawal penalty, the law does allow the county to assess a penalty when a landowner withdraws land from the agricultural district program during the agricultural district enrollment period, which is a five-year period. If a landowner removes the land from the agricultural district, converts the land to a purpose other than agricultural production or an agricultural conservation program, or sells the land to another landowner who does not elect to continue in the agricultural district program, the landowner must pay a withdrawal penalty. The amount of the penalty depends on whether the land is also enrolled in the Current Agricultural Use Value program. See the different penalty calculations in Ohio Revised Code 929.02(D(1).
Read the agricultural district program law in Chapter 929 of the Ohio Revised Code and contact your county auditor to learn about how to enroll in the program.
My farmland is within the village limits and the village sent me a notice that I must cut a strip of tall grass on my land. Do I have to comply with this?
Yes. Ohio law allows a municipality such as a village to have vegetation, litter, and “noxious weeds” laws. These laws can set a maximum limit for the height of grass, require removal of litter on the property, and require ridding the land of “noxious weeds.” The purpose of the laws is to protect property values, protect public health by preventing pests and nuisances from accumulating, and keep noxious weeds from spreading to other properties. The village is within its legal authority to enforce its grass, litter, and noxious weeds laws on a farm property that is within the village limits. Failing to comply with an order by the village can result in a fine or financial responsibility for all expenses incurred by the village to remedy the problem.
Is it legal to pull water from a river or stream to irrigate land in Ohio?
Yes, as long as the withdrawal occurs on private land or with the consent of the public or private landowner. Registration with the Ohio Department of Natural Resources is required, however, if the amount withdrawn exceeds 100,000 gallons per day. If the withdrawal is within an established "groundwater stress area," ODNR has the authority to reduce the amount of a withdrawal. Withdrawal registration information is available on the Division of Water Resources website.
Note that according to Ohio’s “reasonable use” doctrine, if a water withdrawal causes “unreasonable” harm to other water users, a legal action by harmed users could stop or curtail the use or allocate liability for the harm to the person who withdrew the water. To avoid such problems, a person withdrawing the water should ensure that the withdrawal will not cause “unreasonable” downstream effects.
An urban farmer wants to build a rooftop greenhouse to grow hemp and then wants to make and sell cannabis-infused prepared foods at a market on her property. Who regulates this industry and where would she go for guidance on legal and regulatory issues for these products?
Regulation and oversight of food products that contain cannabis is a combination of federal and state authority. Federal regulation is through the U.S. Food and Drug Administration and state regulation is via the Ohio Department of Agriculture’s Food Safety Division. She should refer to these resources:
- U.S. - https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd#legaltosell
- Ohio - https://agri.ohio.gov/divisions/food-safety/resources/Hemp-Products
As for the growing of hemp, the Ohio Department of Agriculture (ODA) regulates indoor hemp production in Ohio. There is a minimum acreage requirement for indoor production—she must have at least 1,000 square feet and 1,000 plants. See these resources from ODA:
Tags: agricultural zoning, Water, withdrawal, irrigation, agricultural district program, noxious weeds, vegetation, hemp, cannabis
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A new Ohio law took effect last year that impacts some landowners who want to terminate their farm crop leases. If a farm lease does not include a termination date or a termination method, the law requires a landowner to provide termination notice to the tenant by September 1. The law was adopted to prevent late or otherwise untimely terminations by landowners that could adversely affect tenants.
It is important to note that the law only applies to verbal leases or written leases that do not include a termination date or method of notice of termination. If a written lease includes a termination date or method of notice, the terms of the lease apply and not the termination notice law. Also, the law does not apply to leases for pasture, timber, farm buildings, horticultural buildings, or equipment.
The notice can be provided to the tenant by hand, mail, fax, or email. If termination is provided by September 1, the lease is terminated either upon the date harvest is complete or December 31, whichever is earlier. While no specific language is required for the termination notice, it is good practice to include the date of notice, an identification of the leased farm and a statement that the lease will terminate on the completion of harvest or December 31. If termination is provided after September 1, the lease continues for another year unless the tenant voluntarily agrees to terminate the lease early.
A tenant is not subject to the new law and can terminate a lease after September 1 unless the leasing arrangement provides otherwise. Because it is generally easier for a landowner to find another tenant, even on short notice, the law protects only the tenant from untimely terminations, not landowners.
For more information, see Ohio’s New Statutory Termination Date for Farm Crop Leases law bulletin available at farmoffice.osu.edu.
It’s the time of year when many Ohio vegetable gardeners are wondering, “why in the world did I plant so many zucchini?” And it’s also when we start hearing the question, “is there any liability risk in giving away my garden produce?” The good news is that Ohio has a food donation immunity law. The law encourages food donations by granting liability protection to those who give perishable foods like garden produce to agencies that serve individuals in need. A new amendment to the law recently passed in Senate Bill 16 broadens the types of donations that qualify for liability protection. If you’re up to your ears in garden produce, you may want to know about the food donation immunity law.
Here's how the law works.
- The grant of immunity
The food donation immunity law is in Ohio Revised Code 2305.37. It states in Section B that a person who, “in good faith,” donates “perishable food” to an “agency” is not liable for harm that may arise if the food, when distributed to an “individual in need,” is not “fit for human consumption.”
- The donation must be made “in good faith” that the food is “fit for human consumption” when donated
There is not a definition for the term “in good faith,” but it’s a term commonly used in legal situations. It means that a person acted with an “honest intent” and not with an intent to deceive or conceal something. The food donation immunity law provides two conditions to help ensure a person is donating in good faith. First, the immunity only applies if a person determines, prior to making a donation, that the food is “fit for human consumption” at the time it is donated to an agency. The term “fit for human consumption,” though not defined by this law, means that it is edible and safe. But note there is no responsibility on the donor to ensure the food will be edible and safe after it is donated, when it is actually consumed or distributed. Second, when determining whether food is fit for consumption, a donor cannot act with gross negligence or willful or wanton misconduct. These two conditions mean that if a donor doesn’t inspect the food at all before delivery or knows something happened to the food that could make it unsafe for consumption but donates it anyway, the law will not protect the donor from liability if the food causes harm.
- The law applies to “perishable food”
The law’s definition of “perishable food” is broad. It refers to any food that may spoil or otherwise become unfit for human consumption due to its nature, age, or physical condition. The definition includes fresh fruits and vegetables, fresh and processed meats, poultry, fish, seafood, dairy products, bakery products, eggs, refrigerated and frozen foods, and packaged foods. It also includes food prepared but not served by a food service operation such as a restaurant, caterer, or hotel, and gleaned foods, discussed below.
- Donations must be to “agencies” that serve “individuals in need”
Donations to friends and family don’t qualify for the liability protection—the law only applies to a donation to an “agency” that serves “individuals in need.” Several definitions and conditions are important.
- An “agency” is an organization that distributes perishable food to “individuals in need,” either directly or indirectly. The term includes any nonhospital, charitable nonprofit corporation organized under Ohio nonprofit laws, or nonprofit charitable association, group, institution, organization, or society. An “individual in need” is a person an agency determines to be eligible for food distribution due to poverty, illness, disability, infancy, or similar circumstances.
- A qualifying agency is one that does not charge a fee for the food. However, Senate Bill 16 recently amended the law to allow donations to an agency that charges an amount no more than the cost of handling the food. That change means even if individuals pay a food handling cost to receive the donated food, the donor of the food will receive immunity.
- Another section of the law, 2305.37(D), also grants immunity to an agency that distributes donated food as long as the agency determines the food is fit for human consumption when the food distribution occurs.
Ohio law also provides liability protection for “gleaning”
Growers can also be immune from liability when allowing someone else to pick or salvage the garden produce and donate it to an agency. This is referred to as "food gleaning" and Ohio law also provides liability protection to those who allow food gleaning. First, the gleaned food is considered “perishable food” and is covered by the food donation immunity law described above. Second, the food gleaning immunity law in Ohio Revised Code 2305.35 grants a landowner or operator immunity for physical injuries sustained by a gleaner during the gleaning process. The landowner or operator is not liable for injuries to a gleaner resulting from any risks or conditions of the property or any normal agricultural operations on the property.
Ready to donate?
Gardeners ready to donate excess garden produce first need to locate an agency that serves individuals in need. Find a local food bank, food pantry, soup kitchen, meals on wheels, or similar agency, and make sure the agency doesn’t charge individuals to receive the food or charges no more than the cost of handling the food. These resources can help locate an agency:
- Ample Harvest - https://ampleharvest.org/find-pantry/
- Ohio Victory Gardens - https://u.osu.edu/ohiovictorygardens/donating-your-victory/
- Ohio Soup Kitchens, Food Banks, Food Pantries - https://www.homelessshelterdirectory.org/foodbanks/state/ohio
Before delivering garden produce to tan agency, be sure to inspect the produce and ensure it is fit for consumption—clean, not spoiled, and edible. Don’t have time to pick and deliver? Find a food gleaner who may be willing to glean your garden and donate the food to an agency. Here’s a resource that lists Ohio food gleaners: https://nationalgleaningproject.org/gleaning-map/states/ohio/?fwp_state=oh.
Tags: food law, liability, immunity, food donation, food gleaning
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When a landowner legally challenges an agency’s use of eminent domain to appropriate property, Ohio law requires a trial court to hold a hearing to determine the agency’s right to make the appropriation, according to a recent decision by the Ohio Supreme Court. The Court held that an appeal to a higher court is not permissible until the trial court holds such a hearing and rules on the issues raised in the hearing. For landowner Diane Less, the ruling means the trial court--the Mahoning County Court of Common Pleas--must hold a hearing to determine whether Mill Creek MetroParks had the right to make the appropriation of her land and whether that appropriation is necessary.
The case is one of several lawsuits and long-running controversies over Mill Creek MetroPark’s use of eminent domain to appropriate land for a bike path. The Mahoning County disputes are one reason behind a current legislative proposal to revise Ohio’s eminent domain laws, which includes a prohibition against the use of eminent domain for recreational trails. The legislation is at a standstill, however, with many opponents lining up against the recreational trails and other provisions of the bill.
Basis for the decision
The current Mill Creek MetroParks v. Less case made its way to the Ohio Supreme Court after the Seventh District Court of Appeals reversed the Mahoning County court’s summary judgment decision that MetroParks was authorized to use eminent domain to take Less’ land. MetroParks appealed that decision to the Ohio Supreme Court. But rather than addressing the issue of authority to take the land, the high court focused on the procedures outlined in Chapter 163 of the Ohio Revised Code. The statutes “provide a uniform eminent domain procedure for all appropriations sought by public and private agencies,” including procedures for when a property owner contests an appropriation. The Court reviewed the statutory requirements in ORC 163.09, which require a trial court to hold a hearing when:
- A property owner files an answer to a petition for eminent domain that specifically denies the right to make the appropriation or the necessity for the appropriation,
- The answer alleges sufficient facts in support of the denial, and
- The appropriation is not sought in a time of war or other public exigency or not for the purpose of making or repairing roads.
When MetroParks filed the eminent domain action against Less, she did file an answer that denied the Park District’s right to make the appropriation and the necessity for the appropriation. Less also filed a motion for summary judgment, asking the court to rule in her favor and dismiss the case because there were no genuine issues of material fact in the case. The trial court denied her motion, however, and Less filed an appeal of that denial to the Seventh District Court of Appeals. The Supreme Court points out that the appeal should not have occurred, however, because the statutory procedures required the trial court to hold a hearing after it denied the summary judgment motion by Less. Nevertheless, the Seventh District ruled on the appeal, reaching a decision that agreed with Less’ argument that the Park District did not have authority to take her land.
The Supreme Court accepted the case for review, but its purpose was not to rule on the issue of whether there was authority for the use of eminent domain. Instead, the Court held that it had no jurisdiction to hear MetroPark’s appeal of the Seventh District’s decision, and that the Seventh District Appeals Court did not have jurisdiction to review the decision of the trial court. Because the trial court had failed to follow the statutory procedures for a hearing and decision on the authority and necessity of the appropriation, there was no “final appealable order” that either party could appeal to a higher court.
What happens next?
The Supreme Court vacated the decision of the Seventh District Court of Appeals and sent the case back down to the Mahoning County Court of Common Pleas. The county court must now hold a hearing to review the landowner’s arguments on the authority and necessity for the park’s appropriation. The court’s decision after that hearing will be an order that either party may choose to appeal to the Seventh District. The best answer to the question of what happens next, most likely, is that case will continue to roll on for quite some time.
Read the Supreme Court’s Decision in Mill Creek MetroParks v. Less.
Tags: eminent domain, appropriation, Mahoning County, bike path, Mill Creek MetroParks
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A situation that can arise between landowners and tenants is the ownership of a crop upon the termination of a lease or transfer of the property. Like most legal questions, the answer depends upon the specifics of the situation. Sometimes, crops are part of the land and sometimes the crop is personal property and not part of the land. The following is a discussion of these different scenarios.
The most common scenario, and the most common type of lease, is for annual crops such as corn and soybeans. Annual crops are generally personal property and not part of the land. If a landowner transfers the land midway through a lease, the tenant will retain ownership of the crops and will have an opportunity to harvest the crops.
Wheat is a unique situation in that it is a carryover crop, planted in the fall and harvested in summer. The wheat will generally be personal property and owned by the tenant with one exception. If the wheat was planted by the tenant before a lease for the following year was established, a court may determine that the tenant planted the wheat at their own risk. Wheat should not be planted unless a lease for the following year is in effect.
Situations relating to perennial crops such as hay largely depend on timing. If the land is transferred shortly after the crop is established, the tenant may be able to continue harvesting the crop or more likely the landowner will be liable to the tenant for the cost of establishing the crop and possibly lost profits. If the land is transferred several years after the crop is established, the tenant may not have any claims to the crop. A court will largely look to the intentions of the landlord and tenant in rendering its opinion on the tenant’s rights.
All of the above scenarios can be avoided by a good, written lease. The lease should address the tenant’s rights to the crop in the event the land is transferred during the term of the lease. The landowner and tenant can agree to address the rights of the tenant, in the event the land is transferred, in any way they wish. For tenants and landowners in current leases, the lease should be reviewed to see how tenant’s rights are addressed in the event of a transfer of the land. For situations where there is no written lease or for new leases, be sure to include a provision to address the tenant’s rights to the crop.
Despite the arrival of summer and continuing disagreements over the state budget, Ohio legislators have been working on several pieces of legislation relevant to Ohio agriculture. All of the proposals are at the committee level but may see action before the Senate and House after the budget bill process ends. Here’s a summary of the ag related proposals currently under consideration.
Senate Bill 111 – Urban Agriculture
Senator Paula Hicks-Hudson (D-Toledo) targets barriers for farmers in urban settings in SB 111, which has had three hearings before the Senate Agriculture and Natural Resources Committee. OSU Extension, the Ohio Municipal League, and several farmers have testified in support of the proposal, which contains three components:
- Establishes an Urban Farmer Youth Initiative Pilot Program to provide youth between the ages of six and eighteen living in urban areas with programming and support for farming and agriculture. The bill would appropriate $250,000 over 2024 and 2025 for the pilot, to be administered by OSU Extension and Central State Extension.
- Exempts temporary greenhouses, such as hoop houses, from the Ohio Building Code, consistent with Ohio law’s treatment of other agricultural buildings and structures.
- Codifies the Department of Taxation’s current treatment of separate smaller parcels of agricultural land under the same farming operation, which allows the acreages to be combined to meet the 10 acre eligibility requirement for Current Agricultural Use Valuation.
House Bill 64 – Eminent Domain
A proposal to make Ohio’s eminent domain laws more favorable to landowners remains on hold in the House Civil Justice Committee. HB 64 is receiving more opposition than support, with dozens of parties testifying against it in its fourth hearing on May 23. Read more about the proposal in our previous blog post.
House Bill 162 - Agriculture Appreciation Act
Rep. Roy Klopfenstein (R-Haviland) and Rep. Darrell Kick (R-Loudonville) introduced HB 162 on May 1 and the bill received quick and unanimous approval from the House Agriculture Committee on May 16. The proposal would make several designations under Ohio law already recognized by federal law:
- March 21 as "Agriculture Day."
- October 12 as "Farmer's Day."
- The week beginning on the Saturday before the last Saturday of February as "FFA Week."
- The week ending with the second Saturday of March as "4-H Week."
House Bill 166 – Temporary Agricultural Workers
A bill addressing municipal income taxes for H2-A agricultural workers has met opposition in the House Ways and Means Committee. HB 166, sponsored by Rep. Dick Stein (R-Norwalk) would subject foreign agricultural workers’ income to municipal income taxes. The current municipal tax base in Ohio is based on federal tax laws that exclude foreign agricultural worker pay from Social Security and Medicare taxes since the workers cannot use those programs, and HB 166 would remove that exclusion and add H2-A income to the municipal tax base. The bill would also require employers to withhold the taxes for the municipality of the workers’ residences. While municipal interests support the bill, Ohio Farm Bureau and other agricultural interests testified against it in its third hearing on June 13. Opponents argue that H2-A workers are not residents because they are “temporary,” that the proposal would have many potential adverse effects on how Ohio handles the H2-A program, and would hamper the ability of agricultural employers to use the H2-A program to hire employees.
House Bill 193 – Biosolid and biodigestion facilities
Biosolid lagoons and biodigestion facilities would have new legal requirements and be subject to local regulation under a proposal sponsored by Rep. Kevin Miller (R-Newark) and Rep. Brian Lampton (R-Beavercreek). HB 193 would grant county and township zoning authority over the lagoons and facilities, require a public meeting and county approval prior to seeking a facility permit from the Ohio EPA, require the Ohio EPA to develop rules requiring covers on new biosolid lagoons, and modify feedstock requirements for biodigestion facilities to qualify for Current Agricultural Use Valuation property tax assessment. HB 193 had its first hearing before the House Agriculture Committee on June 13.
House Bill 197 – Community Solar Development
A “community solar” proposal that did not make it through the last legislative session is back in a revised form. HB 197 proposes to define and encourage the development of “community solar facilities,” smaller scale solar facilities that are directly connected to an electric distribution utility’s distribution system and that create electricity only for at least three “subscribers.” The bill would establish incentives for placing such facilities on distressed sites and Appalachian region sites through a “Community Solar Pilot Program” and a “Solar Development Program.” Rep. James Hoops (R-Napoleon) and Sharon Ray (R-Wadsworth) introduced the bill on June 6, and it received its first hearing before the House Public Utilities Committee on June 21. “The goal of this legislation is to create a small-scale solar program that seeks to be a part of the solution to Ohio’s energy generation and aging infrastructure need,” stated sponsor Hoops.
House Bill 212 – Foreign ownership of property
Ohio joins a movement of states attempting to limit foreign ownership of property with the introduction of HB 212, the Ohio Property Protection Act. Sponsored by Representatives Angela King (R-Celina) and Roy Klopfenstein (R-Haviland), the proposal would prohibit foreign adversaries and certain businesses from owning real property in Ohio. The bill was introduced in the House on June 13 and has not yet been referred to a committee for review.
Tags: legislation, urban agriculture, eminent domain, employment, H2-A, tax law, Income Tax, cauv, biosolids, bioenergy, Zoning, solar, foreign ownership
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Eminent domain is one of those topics that always generates concern among farmland owners. That may be part of the reason behind an eminent domain bill sponsored by Representatives Darrell Kick (R-Loudonville) and Rodney Creech (R-W Alexandria), who introduced House Bill 64 in February. According to the sponsors, the bill would “reform current eminent domain laws to provide landowners with more rights and support.” But HB 64 now faces significant resistance and uncertainty.
What HB 64 proposes
Ohio’s Legislative Service Commission summarizes the procedural changes HB 64 proposes as follows:
- Voids appropriations (the taking of property through eminent domain) that do not follow statutorily mandated procedures.
- Increases the taking agency’s (the government or private entity appropriating property) burden of proof in appropriation proceedings.
- Narrows factual presumptions made in favor of taking agencies in appropriations
proceedings. - Prohibits a taking agency from reducing any offer it makes in an effort to acquire
property, if the attempts may result in appropriations proceedings, or subsequently arguing for a lower valuation in an appropriation proceeding. - Expands required attorney fee, cost, and expense awards due to property owners in appropriation actions.
- Allows property owners who allege their property has been appropriated outside of the required judicial process to sue for inverse condemnation.
- Requires courts hearing inverse condemnation cases to award successful property owners’ attorneys’ fees, costs, and expenses.
- Requires court hearing appropriations cases to award property owner damages if the taking agency uses coercive actions.
- Lengthens certain appropriation proceeding deadlines.
In addition to revising eminent domain procedures, HB 64 would also prohibit the use of eminent domain to obtain property for recreational trails and to maintain recreational trails—a controversial issue tracing back to the Mill Creek Metroparks bike trail project in Mahoning County.
Committee hearings on HB 64
HB 64 has yet to pass out of the House Civil Justice Committee since being referred to the committee on February 28. Three parties testified in favor of the bill a hearing on March 14—Ohio Farm Bureau, Ohio Dairy Producers, and Ohio Council of Retail Merchants. The parties commended the additional protections given to landowners facing eminent domain proceedings and stated that the reforms in the bill would “prevent excess and unnecessary use of eminent domain.” Committee members raised several questions about the proposal at that time, and the bill then stalled for two months.
On May 16, the committee accepted a substitute bill that changed several provisions regarding recreational trails, compensation offers and awards, and relocation assistance—all questions raised in the earlier committee hearing. Changes in the substitute bill include:
- A limit the prohibition on using eminent domain for recreational trails, stating that eminent domain could not be used to take property if the primary use of the property would be for a recreational trail and the property is not adjacent to a public road and within a road right of way.
- Restoration of an agency’s authority to reduce a compensation offer amount if it discovers conditions that it could not have discovered when it make the original compensation offer.
- Revised amounts that would be awarded to a landowner if a jury’s award of compensation is higher than an agency’s most recent good faith offer and removes a percentage limit on mandatory cost and expense awards.
Despite the substitute bill revisions, 37 parties representing a wide variety of interests submitted opponent testimony at the fourth hearing for the bill on May 23. Local governments and associations such as the County Commissioners Association of Ohio, County Engineers Association of Ohio, Ohio Municipal League, and Ohio Mayors Alliance testified against the bill. Business interests such as American Electric Power, Ohio Oil and Gas Association, and Ohio Chamber of Commerce also opposed the bill, as did transportation and recreational interests such as Central Ohio Transit Authority, Mid-Ohio Regional Planning Commission, Rails-to-Trails Conservancy, and Ohio Parks and Recreation Association. Several common themes appear in the opponent testimony: that Ohio’s current eminent domain laws are not “broken” but instead effectively balance landowner rights against public needs, that the bill would create negative financial and taxpayer impacts, and that it would hamper economic development and infrastructure and public works projects in Ohio.
What happens next with the eminent domain bill?
The strong resistance to HB 64 certainly signals problems for its adoption and highlights a need for agreement on whether Ohio’s eminent domain law effectively balances public needs and private property rights. Even so, there are several routes the bill could take from this point: the committee chair could schedule a committee vote on the bill, the sponsors could hold further “interested party” meetings with the intent to further revise the bill, a Senate sponsor could introduce a similar bill and try to move it through the Senate, or the bill could simply die an early death.
Civil Justice Committee Chair Brett Hillyer (R-Uhrichsville) did not schedule the bill for a fifth hearing and potential vote for the committee meetings held on June 6 and June 13. Several opponents encouraged additional “interested party” negotiations and further changes to the proposal. Based on the resistance to the bill in its current form, if such discussions don’t take place or are not successful, the bill will likely die that early death or arise in a different form in the future.
Read more about and follow HB 64 on the Ohio Legislature’s website.
Sixty-six undergraduate students just completed our Agribusiness Law class in the College of Food, Agricultural, and Environmental Sciences at OSU yesterday. It’s always a challenge to teach students all I want them to know about agricultural law in the short time I have with them. And it always generates excitement and relief when I can see that they have learned.
In one assignment this semester, students had to consider the property laws we studied and devise three “real life” questions about the laws. Next, they had to write the answers to the questions they drafted. The legal accuracy of their answers is important, of course, and illustrates their comprehension of the laws we studied. But selecting and writing the questions is equally important, as students must predict when and how the law would apply in a “real world” situation they might encounter.
Many of the student works showed that learning had certainly taken place this semester. And some of their questions were so insightful and relevant that they should also be useful in the “real world.” Below are excellent questions and answers from four students. They illustrate what the students learned, but they will likely be helpful for our readers, too. Take a look at what our students are asking and answering about agricultural property laws!
Question 1 comes from Katie Anderholm, a senior from Medina, Ohio majoring in Agribusiness and Applied Economics.
Q: Am I at risk to be sued from my new neighbors who keep complaining about my cows?
A: A farmer is not as risk to be sued, or at least rightfully sued, by their new neighbors because of the Ohio Revised Code 929.04 and 3767.13. Both codes, the Right to Farm defense to civil action for nuisance and Ohio’s “Statutory Nuisance” Law, protect farmers and their operations from complaints regarding farming. The farmer’s neighbors who have been complaining about his cows do not have a strong argument for legal action because the agricultural activities were established before they moved adjacent to the farm. If the farmer is following proper animal care and manure handling and the neighbors moved after the farming began, then the neighbors will not have merit for a civil action. I would advise the farmer to have a conversation with the neighbors to ease tensions and explain that they knowingly moved next to a cattle operation and that there are certain things that come with that. I have learned that people who are not involved in agriculture in their everyday life to not understand the fundamentals, and sometimes education and consideration can go a long way.
Question 2 is from Cori Lee, a senior from Marysville, Ohio, graduating this May with a major in Sustainable Plant Systems Agronomy and a minor in Agribusiness.
Q: Two siblings own ground that was passed on to them by their parents, where one farms, and the other one has no interest in farming. Can one sibling sell the land, even if the other one does not want to? What can be done to prevent losing the ground?
Yes, as co-owners, one sibling can sell their share of the land, even if the other sibling disagrees and is actively using the land for income and farming. This would force the other sibling to either also sell their share of the land or buy the other sibling out. This is explained in Section 5307.01 of the Ohio Revised Code, the partition law. Whether it is considered a “Tenancy in Common” or “Survivorship Tenancy”, they are both subject to partition. The partition process is also explained in Chapter 5307, and is often lengthy and can ultimately result in both owners being forced to sell the land. However, placing the land in an LLC can prevent this situation, as it would remove partition rights completely and the LLC would be treated as the sole owner of the land. This also provides other opportunities to have more control over how the land could be sold and allow terms to be set to buy out other LLC members. In order to avoid a scenario like this, landowners should carefully plan the transition of their estate to avoid any costly mistakes for the next generation.
Question 3 is by Kole Vollrath, a senior from South Charleston, Ohio majoring in Construction Systems Management.
Q: I own a field and the state has contacted me seeking eminent domain for a roadway that they are planning to build cutting directly through my field. I am new to this sort of action and I am wondering what the proper actions will be in this case?
A: Ohio Revised Code Chapter 163 is the eminent domain law that contains the four required procedures the taking entity (the state in this situation) must provide to the landowner. The first is the notice which you have already received, followed by a “just compensation” offer for the land in question, then appraisal of the property, and then finally a hearing in court to decide on or stop the taking if you don't agree to the offer. In the situation of a road as in this case, it is hard to stop the taking, so the fourth option will likely be more about getting fair money out of the deal rather than stopping construction completely. The reason that it will be hard to stop a road construction is because of Ohio Constitution Article 1 Section 19. This explains that eminent domain is allowed to happen when it is for a valid public use of the property, and since this is a road, it will be hard to argue that is not valid. However, it can still be beneficial to the landowner to hold strong in steps 2 and 3 and get an appraisal, then go to court and try to extract fair money for yourself out of the situation.
Question 4 is from Lyndie Williams, a senior from Bucyrus, Ohio majoring in Agribusiness and Applied Economics.
Q: Can I be held accountable for damage to a neighbor’s property that they claim is due to water drainage from my property?
A: In short, yes it is possible to be held accountable for damage to a neighbor’s property if it was caused by water drainage from your property, but not always. While every property owner has the right to reasonably use their land, including water flow and drainage, there can be consequences of this if harm is caused to others. First, determining what is “reasonable” for water drainage when evaluating harm to another is necessary. Courts will look at four factors when determining reasonable drainage: utility of the use, gravity of the harm, practicality of avoiding the harm, and justice. If your purpose for drainage is valid, the harm caused by drainage use is not overly detrimental to others, it is impractical to use an alternative form of drainage, and it is not unfair to require other landowners to bear losses caused by your drainage, then you would not likely be held accountable for damage to their property due to water drainage from your property. However, if some or all of these “reasonable” requirements are not met, then you would need to look into drainage problem resolutions, as you could be accountable for their damages. Drainage problem resolutions include voluntary fix, drainage improvement projects, drainage easements, and litigation. For example, one drainage problem resolution is a drainage easement which is in writing, recorded, and involves an attorney. In a drainage easement you would pay the neighboring landowner for the right to drain your water onto their property for the damages they will incur as a result. Drainage easements are usually perpetual but can be termed and include access and maintenance rights and responsibilities for the easement holder.
Tags: property law, nuisance, Partition, drainage, eminent domain
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An eminent domain revisions bill appears to be on hold after its removal from the committee agenda that would have provided the bill a third hearing. House Bill 64 was introduced by sponsors Rep. Darrell Kick (R-Loudonville) and Rep. Rodney Creech (R-W. Alexandria) on February 21. The bill had two hearings before the House Civil Justice Committee on March 7 and 14, but was removed from the committee’s March 21 meeting agenda.
House Bill 64 proposes quite a few major changes to Ohio eminent domain law:
- Voids an appropriation of property if the agency does not follow statutory procedures for the appropriation, such as procedures for appraisal of value, good faith offers of compensation, and negotiation with the landowner. Under the proposal, a landowner could bring a claim against the agency for violating any of these procedures and the appropriation would be invalid. The proposal is the opposite of current law, which states that procedural violations do not affect the validity of an appropriation of property.
- Increases an agency’s burden of proof in showing that a taking is for a public use and is necessary, that the agency has authority to appropriate the property, and that the parties are unable to agree on a voluntary purchase of the property. The agency would have to meet the “clear and convincing evidence” burden of proof rather than the “preponderance of evidence” standard stated in current law.
- Removes two presumptions the law currently makes in favor of an agency. The first is that an appropriation is necessary if the agency adopts a resolution or ordinance declaring its necessity and the second is that an appropriation for a public utility or common carrier is necessary upon the offering of evidence supporting the necessity. Removing these presumptions also affects the burden of proof the agency must meet regarding the necessity of a taking.
- Revises an irrebuttable presumption in current law that an appropriation is necessary if the agency is a common carrier or public utility and a state or federal regulatory authority has approved the appropriation. The proposal would allow a landowner to rebut this presumption and would limit the presumption only to the specific interests reviewed by the regulatory authority.
- Prohibits an agency from reducing or revoking the compensation made in an initial offer to a landowner or from later arguing or presenting evidence for a lower amount. Current law allows an agency to revise an offer if they discover new conditions after making an initial offer.
- Expands attorney fee, cost, and expense awards for landowners. Current law allows attorney fee and cost awards if an agency challenges a landowner’s appraisal and the final compensation awarded is less than 125% of the agency’s first offer. The bill would require reasonable attorney fees, expenses, and costs if an agency appeals and does not prevail, in whole or in part. It also removes a provision requiring a landowner to pay court costs if the landowner denies an agency’s offer and is later awarded less than the offer amount.
- Awards “coercive damages” to landowners who prove by a preponderance of evidence that an agency used coercive actions during the appropriation process. Coercive actions include, but are not limited to, advancing the time of a taking, deferring negotiations, deferring the deposit of funds with the court, and attempting to force an agreement on the compensation award.
- Provides landowners the right to an “inverse condemnation” action, which is a claim that an agency has taken property without filing a court proceeding. In that case, a landowner may file an inverse condemnation lawsuit in the court of common pleas. If the landowner proves by a preponderance of evidence that the agency has taken the property, the court can award the landowner compensation and damages for the taking as well as attorney fees, costs, and expenses. Currently, a landowner must file a “mandamus” action asking the court to order the agency to initiate an eminent domain proceeding and must offer clear and convincing evidence to the court that the agency has taken the property.
- Extends case timelines. The bill increases the minimum number of days for the court to set hearing dates. If a landowner files an answer denying an agency’s authority, the necessity of the taking, or that the parties were unable to agree, the hearing date on those issues would extend from 15 to 30 days after the answer was filed and the compensation hearing date, if the court settles in favor of the agency, would change from at least 60 to at least 90 days after the court settles the issue. If a landowner could have but failed to file an answer to an eminent domain action, the compensation hearing date would be at least 90 days rather than 20 days from the date the answer was due. If an owner appeals a court’s determination on authority, necessity, or inability to agree on an appropriation, the bill prohibits the court from setting a compensation hearing until the appeal is final.
- Removes recreational trails from eminent domain authority. The proposal states that the use of property for a recreational trail is not a valid “public use” for eminent domain purposes. Recreational trails, according to the proposal, are trails used for hiking, bicycling, horseback riding, ski touring, canoeing, or other nonmotorized forms of recreational travel. The proposal also excludes the making or repairing of or access management to shared-use paths, bike paths, or recreational trails from the use of eminent domain for making and repairing roads.
In the March 14 committee hearing, the Ohio Farm Bureau Federation testified in support of the bill. Committee members raised questions about the bill’s recreational trail prohibition, initial offer minimum, coercive action awards, and attorney fee awards. Although the committee chair suggested that a third hearing for opponent testimony would take place in the following week, the bill was later removed from that committee hearing agenda.
Read and follow House Bill 64 on the Ohio General Assembly’s webpage for the bill.
Tags: eminent domain, appropriation, taking, condemnation, House Bill 64, recreational trails
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It’s the time of year when farmers are cleaning up fence rows and boundary lines to prepare fields for planting season. Tree law questions pop up a lot during this time. Here are answers to the most commonly asked questions we receive about trees along boundary lines in Ohio’s rural areas. Note that there can be different laws addressing trees within a city or village.
Who owns a tree that’s on the property line?
When a tree is on the boundary line between two properties, both neighbors have ownership interests in the tree. However, if only the branches or roots of a tree extend past the property line and into a neighbor’s property, the branches and roots do not give that neighbor an ownership interest in the tree.
Can I cut down a tree on the boundary line?
No, not if your neighbor doesn’t agree to the removal. Because both you and your neighbor jointly own the tree, you must both agree to cutting down the tree. If you remove the tree without the neighbor’s approval, you could be liable to the neighbor or the neighbor’s share of the value of the tree, or for three times the value of the tree if you behaved “recklessly,” explained further on.
Can I trim the branches of the neighbor’s tree that hang over my property?
Yes, even if the tree isn’t on the boundary line and you don’t have an ownership interest in it, you still have the legal right to trim branches that hang over your property. However, you must take “reasonable care” in trimming the branches. Failing to act with reasonable care and causing harm such as disease or death of the tree could result in liability.
How does the law determine liability for harming or cutting down a tree?
Ohio Revised Code 901.51 addresses injury to vines, bushes, trees, or crops on land of another, referred to as the “reckless destruction of vegetation law." The law states that a person shall not “recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another or upon public land.” The word “recklessly” means the action occurred with complete disregard to the rights of the landowner. Violations of the reckless destruction law can result in criminal misdemeanor charges or a civil negligence lawsuit by the tree owner. The law provides potential punitive “treble damages” that make the violator liable for three times the value of the damaged tree, crop, or vegetation.
If my neighbor’s tree falls onto my property, is the neighbor liable for the damage?
Possibly, if the neighbor had knowledge that the tree was diseased, weak, or “patently dangerous.” If the tree was not in a weakened or damaged condition or the neighbor had no knowledge of its condition, the law would not likely create liability for the damage. You'd have to take action against the neighbor to establish liability, however. If there is harm to a structure, your insurance provider might be involved and take the lead on establishing responsibility under the neighbor's insurance coverage. Even so, there is no law that creates an affirmative duty for the neighbor to clean up the tree. Landowners are expected to use the remedy of “self-help,” i.e., to clean up natural and ordinary tree debris on their property, even if from a neighbor’s tree. Likewise, the neighbor is expected to clean up debris from your trees that fall onto the neighbor’s property.
Can I keep the timber or firewood from the neighbor’s tree or a boundary tree that fell on my property?
Ohio law doesn’t address this issue. The “self-help” remedy for tree debris that falls on the property suggests that you are responsible for removing the debris, which could logically allow you to do as you wish with the debris. But if the tree is valuable or was a jointly owned boundary tree—might the neighbor have rights to the tree or its value? Because Ohio law doesn’t clearly answer this question, it’s wise to talk with the neighbor and provide a reasonable amount of time for the neighbor to claim ownership and remove their share of the tree. Document the notice given to the neighbor as well as the timber or firewood resulting from the tree in case the neighbor fails to respond until after tree removal and claims an ownership interest at that time.
Tags: boundary law, property law, tree law, overhanging branches, neighbor law
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