Property

By: Peggy Kirk Hall, Wednesday, May 14th, 2014

A new bill in the Ohio Senate addresses several legal issues for Ohio agritourism operators.  Senators Jones (R-Springboro) and Peterson (R-Sabina) introduced S.B. 334 on May 7.  The bill would impact Ohio agritourism operators in regards to civil liability, property taxation, zoning regulation and amusement ride standards.

Civil Liability Protection

Following a similar trend in other states, the Ohio legislation would grant agritourism operators civil liability protection from claims for injuries that occur during agritourism activities.   An operator would not be liable for harm that an observer or participant sustains during an agritourism activity if the harm is a result of the following conditions, which the law defines as "risks inherent in an agritourism activity":

(a) The surface and subsurface conditions of land;

(b) The behavior of wild or domestic animals;

(c) The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;

(d) The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;

(e) The possibility that a participant may act in a negligent manner, including by failing to follow instructions given by the agritourism provider or by failing to exercise reasonable caution while engaging in the agritourism activity that may contribute to injury to that participant or another participant.

The law does not extend civil liability immunity if an agritourism operator purposefully causes harm or if the provider's willful or wanton disregard for the safety of an observer or participant proximately causes harm to the person.

Real Property Taxation
 
The proposal aims to ensure that agritourism land can qualify for Ohio's Current Agricultural Use Valuation (CAUV) real roperty taxation program.  The CAUV differential tax assessment formula would apply to agritourism property in two situations:
 
(1) Tracts, lots, or parcels of land of ten acres or more devoted exclusively to agritourism during the three years prior to a CAUV application, if the land on which the agritourism is located is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use according to ORC 5713.30.
 
(2) Tracts, lots, or parcels of land less than ten acres that were devoted exclusively to agritourism and produced an average yearly gross income of at least $2,500 during the three years prior to the CAUV application, or where there is evidence of an anticipated gross income of such amount during the tax year in which the applicant applies for CAUV.
 
Zoning Authority
 
The bill also contends with the issue of whether agritourism activities are subject to local zoning regulations, a question we often receive at Ohio State.  According to the proposal, counties and townships would not have any authority to utilize zoning to prohibit the use of land for agritourism in any district, whether zoned for agricultural, industrial, residential, or commercial uses.
 
Amusement Ride Standards and Inspections
 
In response to emerging questions about permits and safety standards for activities such as zip lines on agritourism operations, the bill grants authority to the director of agriculture (ODA) to adopt rules to establish standards for amusement rides at agritourism locations that are consistent with standards adopted by the American Camp Association.  If the ODA adopts such rules, the bill states that other regulations pertaining to permits, inspections and duties would not apply to agritourism amusement rides.
 
Definition of Agritourism
 
An important component of the bill is its definition of "agritourism," but the bill raises as many questions as answers in its attempt to clarify the activities and operations that would be subject to the proposed legislation.  For purposes of the above provisions, the proposal defines "agritourism" as:
 
"An educational, entertainment, or recreational activity that takes place on a working farm or agricultural or horticultural operation and that allows or invites members of the general public to observe, participate in, or enjoy that activity.  "Agritourism" includes historic and cultural agriculture activities, self-pick farms or farmer's markets when they are conducted in conjunction with farm operations." 
 
The Senate referred S.B. 334 to the Civil Justice committee on May 14.   Learn more about the bill here
 
By: Peggy Kirk Hall, Wednesday, January 29th, 2014

Ohio farms that complement their agritourism activities with inflatable "bounce houses" and slides for kids to play on will soon be subject to new safety standards proposed by the Ohio Department of Agriculture (ODA).  Based on its authority to inspect "amusement rides," ODA is proposing the regulations to ensure public safety through minimum standards for the operation and use of inflatable devices. 

Inflatables haven't always been subject to ODA's "amusement ride" oversight.  The Ohio legislature amended the definition of "amusement rides" in 2011 to include "inflatable devices," which gave ODA the added responsibility of inspecting and permitting the bounce houses.  The  regulations now proposed by ODA will provide safety standards that operators must meet before receiving a permit to operate an inflatable.

According to the proposal, owners or operators of inflatable amusement devices:

  • Shall have the manufacturer's specifications on hand and available for ODA at the time of an inspection.
  • Shall not inflate a device with flammable gases.
  • May vary from the manufacturer's operating instructions or make alterations to the inflatable's design, only by doing the following:

1) Obtaining written permission for the variance or alteration from the manufacturer;

2)  Submitting the written permission from the manufacturer to the department for approval; and

3)  Being reinspected by ODA to ensure compliance with the revised manufacturing instructions or specifications.

ODA seeks comments on the proposed safety standards by February 18, 2014; learn more by visiting here.

By: Caty Daniels, Wednesday, January 15th, 2014

Author: Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law

A farm lease is a valuable transaction for landowners and farm operators alike, so it is important to ensure that the lease conforms to Ohio’s legal requirements. Here’s what Ohio law requires for creating a legally enforceable lease:
 
The lease must be in writing. Enforcing a verbal farm lease is very difficult in Ohio due to our “Statute of Frauds.” The statute states that a lease of land must be in writing to be legally enforceable in Ohio. Despite this law, many verbal farm leases do exist. If a problem arises under a verbal farm lease, the law would not uphold the verbal lease unless a party could prove that the court should grant an exception from the Statute of Frauds writing requirement. This is a risky position and forces a party to go to court simply to try to prove that there is a valid lease.
 
The lease must identify the land. Include the legal description, address and acreage of the land parcel.
 
Both parties should sign the lease. Ohio law requires that the landowner must sign the lease, and Ohio’s Statute of Frauds states that a lease agreement is not enforceable against a party who did not sign the lease. So that the lease is enforceable against both landlord and operator, both should sign the lease.
 
The lease must properly name the parties and all owners. Be sure to list all owners, using the proper legal names or business names. In the case of joint landowners, such as a married couple or partnership, both owners must sign the lease. If an LLC or similar business entity owns the land, the business entity should be the named party entering into the lease, and the individual who signs
the lease on behalf of the entity must have legal authority to do so.
 
A lease over three years must be acknowledged. Parties to a lease of more than three years must have their signatures acknowledged and certified by a notary public or local official such as a judge, mayor or clerk of court.
 
The parties should file a memorandum of lease. Ohio law requires that the lease transaction be filed with the county recorder in the county where the land exists, which gives notice of the lease arrangement to potential purchasers and others. Rather than requiring the parties to divulge all details of the lease, the law allows the parties to file a shortened “memorandum of lease” that must include names and addresses of each party, a legal description of the land, the lease period and rights of renewal.
 
The terms of a farmland lease are also important. For information on terms and other lease issues, refer to our other resources on farmland leasing.
Posted In: Property
Tags: farm lease, farmland lease, enforceable lease
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Litigation that arose from a drainage improvement project completed in 2002 has finally ended with a decision by the Ohio Supreme Court.  The court announced today that it will not accept the case for review, which allows the ruling by the Third District Court of Appeals in favor of the Henry County Engineer to remain in place.

Richard and Rodney Rohrs sued the county engineer  and several staff members in 2005 after a drainage project completed by the county flooded several acres of a farm field the Rohrs had rented from Gerald Westhoven.  In the late 1990s, Westhoven approached the Henry County Engineer about flooding problems on Westhoven's farm and the possibility of cleaning out the open drainage ditch that ran between his land and the county road.  The engineer proposed an alternative solution, to lay drainage tiles and fill the ditch, and offered to classify the work as a road safety improvement project to be handled through the engineer's budget rather than through the petition ditch process that would result in assessments on property owners.

The county engineer installed the new drainage system in 2002.  Westhoven entered into a lease for the land with the Rohrs in the Spring of 2003.  The Rohrs planted a tomato crop on the parcel; by July, part of the field was under water.   After the harvest season, the county engineer and Westhoven attempted to locate a drainage tile that could be the source of the flooding but they could not find any tile in the flooded area.  The county then installed a new catch basin near Westhoven's property to resolve the flooding problem, with plans to tie in any field tile that Westhoven might later discover on his land.  The Rohrs continued to lease the farmland from Westhoven.

According to witness testimony, the cause of the 2003 flooding was a drainage tile and catch basin just south of Westhoven's property that had been cut off during construction of the road improvement project drainage system; the engineer's staff  had filled the tile and catch basin because it did not appear to be a functioning tile and did not exist on any of the county's plans.  Excavation on the Westhoven property several years later revealed a drainage tile located just 15 feet from the filled tile and catch basin.  The newly discovered tile, which Westhoven had not previously reported to the engineer,  had a seed bag stuffed into its outlet, which was near the filled catch basin.   The Rohrs claimed that the engineer's staff had intentionally stuffed the seed bag into the functioning tile, while the engineer's staff claimed they did not know about the tile.   The county surmised that the seed bag had been used in the previous filling of the tile and catch basin that they had believed to be non-functioning.

The Rohrs sought $70,000 for losses to their 2003 tomato crop as a result of the flooding.  Their legal causes of action included several tort claims and violations of federal and state due process rights.  They also asked the court for a writ of mandamus to order the county to compensate them for a partial "taking" of their property by the county engineer.   The Henry County Court of Common Pleas, after seven years of litigation, rejected each of the Rohrs' claims.

The Rohrs appealed with no avail to the Third District Court of Appeals.  The appellate court agreed with the trial court's conclusion that state law prevented tort liability for the flooding because the county was entitled to governmental immunity under Ohio Revised Code 2744.02(A)(1) i.  The court stated that the Rohrs had failed to prove that any of the law's exceptions to governmental immunity applied to the situation.  In response to the Rohrs' argument that the county had committed a partial "taking" of property, the appeals court agreed with the trial court that a "taking" had not occurred for three reasons:  because the flooding was accidental and incidental rather than an intentional taking of property, because the alleged taking was not for a public use as required by the Constitution and because the Rohrs had other remedies for their harm, such as a tort claim against Westhoven and the failed tort claims against the county engineer.  As such other remedies were available, the court also agreed with the trial court that the Rohrs failed to prove violations of their due process rights.

In their request for a review by the Ohio Supreme Court, the Rohrs focused on the lower courts' conclusions that a "taking" had not occurred.  The Henry County Farm Bureau and the Ohio Farm Bureau filed a brief in support of the Rohrs, urging the Supreme Court to accept the case and review the takings issue.  The Court today declined to accept the case by a vote of 5--2 with Justices Paul Pfeifer and Judith French dissenting.  Without a review by the Ohio Supreme Court, the appellate court decision stands as the final resolution of the case.

The decision of the Third District Court of Appeals in State ex rel. Rohrs v. Germann is available here.

Peggy Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program

We often explain the Ohio Recreational User's Statute to farmland owners because the  law provides liability protection when someone asks to hunt, fish, snowmobile or conduct other recreational activities on the farm.  As long as the landowner grants permission for the use and does not receive a fee from the recreational user, the landowner does not owe a legal duty to assure that the premises are safe for the user.  This immunity from liability encourages those who own non-residential land to open the land for recreational activities.

Landowners always have "what if" type questions when we explain this law.  Recently, the Ohio Supreme Court answered one of those "what if" questions:  what if I modify the property in some way and create a hazardous condition that causes an injury; does the Recreational User's Statute still protect me from liability?  The Supreme Court's response:  yes.  But the court was not in complete agreement on the issue.

The accident at the heart of the case occurred when an 18 year old boy went sledding in a park owned by the City of Circleville, Ohio.  The boy slid head first into a wooden railroad tie which the city had transported to the park from a construction site.  The city planned to temporarily store the railroad tie and other construction debris at the park because no storage space was available at its maintenance facility.  Upon hitting the railroad tie, the boy broke his neck and became paraplegic.

In its decision in the lawsuit filed by the boy, the trial court determined that the city was immune from liability because of the Recreational User's Statute, which grants recreational immunity to governmental as well as private landowners.  The boy appealed the case to the Fourth District Court of Appeals, which affirmed the trial court's decision.  The Ohio Supreme Court agreed to review the case.

The question before the court was whether the city's action of placing the railroad ties in the park created an exception from the immunity provided by the Recreational User's Statute.  The boy's legal counsel argued that storage of the railroad ties and other construction debris in the park had changed the property's essential character so that it was no longer a recreational property and should not fall under the protection of the Recreational User's Statute.   A majority of the court disagreed, concluding that the city’s alleged creation of a hazard on the premises did not affect the city’s immunity.

"We cannot accept as reasonable any contention that the presence of a railroad tie in a public park changes its essential character as a recreational space,” wrote Justice Sharon Kennedy.  “Critics may claim that our decision reaches a harsh result.  However, the language of the recreational-user statute is plain; a property owner owes no duty to a recreational user to keep the property safe for entry or use.  Creating an exception to this immunity is a policy decision that comes within the purview of the General Assembly, not the courts. … [W]e will not create an exception by judicial fiat.”

Justice William O’Neill entered a dissenting opinion, joined by Justice Paul Pfeifer, who also wrote a separate dissent.   “[L]et’s be accurate here — we are not talking about a single railroad tie," stated Justice O'Neill.  "That tie that crippled this child was part of an overall scheme of disposal of huge mounds of debris that the city had incredibly decided to place in the middle of a recreational park! Cover it with a light dressing of snow, and the perfect killing field was created. . . . [T]he city made a decision to dump huge mounds of debris into a city-owned park. When it did that, it lost its “recreational user” immunity entirely."

In his dissent, Justice Pfeifer questioned the protection afforded by the Recreational User's Statute.  The immunity provisions in those statutes, he stated, "provide unreasonable and unconstitutional protection to government entities that own property."

What does the Court's decision mean for agricultural landowners? 

While the case did not involve an agricultural property, the decision does have impact for agricultural landowners.  A few lessons from the case:

Affirmation of broad landowner immunity.  The court's decision affirms the broad immunity afforded by Ohio's Recreational User's Statute.  We often hear questions such as "but what if I left my equipment out in the field?" or "but what if they fall into that hole I just dug?"   Based on the court's decision, the landowner has no duty to make the property safe and won't be liable for injuries caused by any "hazards" the landowner created on the property.   Remember that this immunity applies to "recreational users"-- property visitors who have the landowner's permission to engage in recreational activities such as hunting, fishing and snowmobiling on non-residential property and who haven't paid the landowner for the recreational activity (with an exception for hunting lease payments; landowners may receive hunting lease payments and still retain recreational user immunity).

Take recreational permission seriously.   This lawsuit arose because someone suffered a serious injury.  Even with immunity protection, landowners should think twice about allowing recreational users on the property when highly dangerous situations are present.  If there's a good chance that someone could suffer harm from the situation, avoid the potential of harm and simply don't grant permission for people to be on the property.

Immunity comes at a cost.    While it can prevent landowner liability, the Recreational User's Statute can't stop a harmed party from taking the landowner to court.    The city incurred not only the costs of defending itself through three court hearings, involving attorney fees and the city's time, but also the cost of negative publicity.  Surely, more responsible land management decisions would have cost less and kept someone from suffering harm.

The Ohio Supreme Court's decision in Pauley v. Circleville is available here.  The Ohio Recreational User's Statute is in Ohio Revised Code Sections 1533.18 and 1533.181.

Confusion at Federal Level Leaves Farmers Unsure of SPCC Rule Compliance    

Peggy Hall, Asst. Professor, OSU Extension Agricultural and Resource Law Program

A common joke among attorneys is that the answer to every legal question is "maybe," and that answer is appropriate when asking whether farms will be exempted from complying with the Oil Spill Prevention, Containment and Countermeasure (SPCC) rule.

May 10, 2013 was the compliance deadline for the EPA rule requiring SPCC plans for farms storing above a threshold amount of oil.  But several legislators have spoken out against the regulation and intend to exempt most farms from its requirements.   As we reported in an earlier post, legislators successfully delayed EPA's ability to enforce the SPCC rule against farms until September 23, 2013, and also drafted the legislation to exempt many farms from the SPCC rule.  But while the Senate and House have each passed proposals with SPCC exemption language, they've used two different bills to do so--the Senate's Water Resources Development Act and the House's Farm Bill.  Neither bill has passed both chambers and the SPCC exemption remains in limbo today, the date after which the EPA may begin enforcing the rule.

In mid-August, two sponsors of the exemption, Senators Inhofe (R-OK) and Pryor (R-AR), sent a letter to EPA Administrator Gina McCarthy regarding SPCC enforcement.  The letter clarified that Congress plans to exempt most farms from the rule and suggested that the EPA should not attempt to retroactively enforce the rule back to the original compliance date of May 10, 2013.  Time will tell whether the senators' letter will prevent EPA from penalizing farms that did not have an SPCC plan by May 10 but had an oil spill anytime after the May 10 compliance deadline.

What Should Farmers do about SPCC Plans now?

Farmers who have been waiting to see if Congress would exempt them from the SPCC rule have to make a decision:  comply now or risk penalties for non-compliance.  A few considerations may help the decision-making process:

  • Operating without an SPCC plan carries financial risk.  If a farm that is subject to the SPCC rule does not have a plan but does have an oil spill that discharges into a waterway, the farm will incur additional penalties for failing to have and implement an SPCC plan.  These penalties vary depending upon the size of the facility and the severity of the spill; our research revealed recent fines ranging from $1,500 to over $55,000.  Our research also shows the cost of an SPCC plan from a certified engineer or consulting firm to begin at around $1,000, with higher costs for larger farms.
  • Only certain farms must comply with SPCC.   Farms that store less than 1,320 gallons of diesel, gasoline, hydraulic oil, lube oil, crop oil or vegetable oil aboveground or less than 42,000 gallons below ground do not need an SPCC plan.   All other farms might need an SPCC plan if it's possible that spilled oil could discharge into a waterway.  To learn more about whether a farm is subject to the SPCC plan rule, visit here.
  • Smaller, lower-risk farms can "self-certify" their SPCC plan.  The SPCC rule allows farms with smaller oil storage and no history of significant oil spills ("Tier I farms") to create and implement an SPCC plan; other farms require certification by an engineer.  The EPA provides a model template for  Tier I farms on their website.  Be aware, however, that preparing the plan requires some work:  a thorough assessment of the farm's oil storage, selection and installation of appropriate containment measures and proper training and response practices.  For those who don't want to prepare their own plan, consider a consultant.  Consulting companies offer services such as assessment, consultation, plan development, certification and future inspections.
  • A farm may be able to seek a compliance deadline extension.   The SPCC rule allows a farm that couldn't meet the compliance deadline to submit a written request for an extension to the EPA regional administrator for the state where the farm is located.  There are several reasons EPA may grant an extension:  because a Professional Engineer (PE) isn’t available to create and certify a plan, if the farm is located in an area impacted by floods, or because facility modifications could not be completed before the deadline.  For more on seeking an extension, visit this link.
  • Insurance coverage may be at risk.  Non-compliance with the law can negate insurance coverage; most insurers would likely deem the failure to have an SPCC plan after September 23, 2013 as "non-compliant."
  • Oil storage containment is good risk management.  Even without the SPCC rule, assessing and managing oil storage and handling practices on the farm can pay off.  Consider the recent case of an Ohio farm with a leaking oil tank that polluted a nearby waterway; the farm paid over $15,000 in fines and cleanup costs.

While "maybe" is a good answer to whether Congress will exempt many farms from the SPCC rule, it isn't a good answer to whether farmers should ignore the SPCC regulation because of the confusion in Congress.  For more on SPCC and agriculture, visit the EPA's web page.      

Peggy Kirk Hall, Asst. Professor, OSUE Agricultural & Resource Law Program     

A recent decision by the Ohio Court of Appeals addressed two important legal standards: the proof necessary to claim title to another's land by adverse possession and conditions allowing a trial court to set aside a jury's verdict.

The case, Kiesel v. Hovis, centers on a land dispute between two adjacent farms in Sandusky County, Ohio.   A recent land survey established a new legal description and a boundary line between the farms; the survey placed the boundary line 126 feet east of a ditch that the Kiesels had previously considered the boundary.   Since the new boundary reduced their parcel by seven acres, the Kiesels filed a lawsuit, claiming title to the seven acres of land by adverse possession.

Adverse possession is an old law; its historical purpose was to encourage settlement of the frontier by rewarding "squatters" who put land into productive use.  Today, adverse possession is a controversial law used to try to resolve misunderstandings about boundaries established long ago.  A party claiming land by adverse possession must prove that he or his predecessors had exclusive, continuous possession of the disputed land for at least 21 years and that the possession was open, notorious and adverse to the legal title holder.   If the party proves each element of adverse possession, the court will order a new deed that changes title to the property.

Offering Evidence to Prove Adverse Possession

Landowners often ask what type of evidence will prove the elements of adverse possession.  In this case, the Kiesels offered proof through the testimony of several witnesses.   Two farmers testified that they had farmed the disputed land for the Kiesels' predecessor from 1975 to 1993, although one farmer stated that he didn't believe all of the land had belonged to the predecessor.   The Kiesels also testified, stating that they had owned the land since 1993, had farmed up to the ditch for ten years,  had placed the land into the Conservation Enhancement Reserve program in 2003 and still received annual payments from the government for the land.

Hovis, the neighboring landowner and defendant in the case, offered witnesses to dispute the Kiesels' claims.  The surveyor for Hovis testified that the new boundary line was consistent with old legal descriptions for other parcels and with old tax maps.  The surveyor also stated that early maps did not show the ditch; a ditch did not appear on any government map until 1959.  Hovis called a witness from the county auditor's office, who testified that the new survey line was consistent with old tax maps and that the auditor's office had  ordered the new survey because the old legal description was ambiguous.  Hovis also testified that his father had owned the land since 1966, that he and his father had paid taxes for the disputed strip since that time, and that his father and the owner previous to Kiesels were friends but that he didn't know whether they had an agreement about the use of the land in question.  In reference to whether he had given the Kiesels permission to use the land, Hovis testified that he had never said anything but had consented to the use by his inaction, as it was difficult to get his equipment across the ditch to access the land.

Who Gets the Land?

As is often the situation in adverse possession cases, the jury sided with the legal title holder.  A unanimous verdict by the jury rejected the Kiesels' claim of adverse possession and ruled in favor of Hovis.

A Court's Power to Set Aside a Jury Verdict

After the jury verdict, the Kiesels asked  the court for a “judgment notwithstanding the verdict.”  This motion argues that the court should set aside a jury verdict because reasonable minds could have come to only one conclusion based on the evidence submitted, and that conclusion was opposite the jury’s decision.   The trial court agreed and granted the Kiesels' motion to replace the jury’s verdict, commenting that the jury had “lost its way.”   Hovis immediately appealed the court’s decision to the court of appeals, arguing that sufficient evidence existed to refute the claim of adverse possession, the trial court had used the wrong standard for determining whether to set aside the jury's decision, and  the trial court had invaded the “province of the jury.”

The Review by the Court of Appeals

The Sixth District Court of Appeals reinstated the jury’s verdict.  The trial court’s conclusion that the jury had “lost its way” was "patently the wrong standard to use," the court of appeals stated.  Instead, the trial court should have determined whether reasonable minds could have disagreed on the decision.  Examining all of the witness testimony, the appeals court concluded that the testimony was not conclusive either way;  reasonable minds could have examined the evidence and reached different conclusions about whether the Kiesels had proven adverse possession.  For this reason, the trial court erred by setting aside the jury's verdict.

Lessons Learned

The case reminds us once again of the difficulty of proving adverse possession.  Imagine the jury's challenge:  whether to take land from one landowner and give it to another.   The difficulty of this task is likely one reason that adverse possession claims are hard to win; another could be that "permission" for the use by the title owner is a defense to the claim that the use was "adverse" or against the wishes of the owner.   While the Kiesels and predecessors had clearly used the land in dispute for more than 21 years, they weren't able to convince the jury that their use was adverse.  Hovis, on the other hand, apparently established enough evidence to suggest that both he and his predecessor had allowed the use of the land since it was on the other side of the ditch and not easily accessible, thereby giving permission for the use.  The law of adverse possession does not allow a party to claim the land of one who has given permission or "acquiesced" in the use of his or her land by another, even if the other party mistakenly believes he or she owns the land.

This case also reminds us about the role of juries and judges in our legal system.  While a trial court judge can disagree with a jury, the judge does not have automatic authority to deprive the jury of its decision.  Only if there's no uncertainty about the interpretation of evidence--no room for reasonable minds to disagree about what the evidence proves--can a court step in and replace a jury's verdict.   This is an important principle of our legal process, intended to balance power between the people and the courts.

Time will tell whether the Kiesels invoke another significant component of our legal process--the right to request a review of the appellate court's decision by the Ohio Supreme Court. The appellate court's decision in Kiesel v. Hovis is here.

Peggy Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program           .

Tree obstructions, unwanted vegetation and noxious weeds are serious matters for Ohio farmers, which is why several Ohio laws provide mechanisms for addressing these problems through the board of township trustees.   Two recent Ohio court cases illustrate the practical impacts of the laws and demonstrate the consequences of both following and failing to follow the processes provided by these laws.

The first case, Kilroy v. Jackson Township, concerned the clearing of weeds and vegetation in a partition fence row.   The case recently resulted in a judgment of over $56,000 against the board of trustees of Jackson Township in Montgomery County, including an unusual finding of personal liability against each trustee.  The court determined that the trustees failed to perform a settlement agreement with the Kilroys concerning the clearing of their neighbor’s fence row.  The settlement agreement arose from a lawsuit filed by the Kilroys asking the court to require the township trustees to perform their legal duties to have the neighbor’s fence row cleared of weeds and vegetation.

Ohio Revised Code 971.34 allows a landowner in a rural area to ask a neighbor to clear his or her side of a partition fence between the properties and, if the landowner fails to do so, to petition the township trustees to step in and resolve the problem.  The trustees must view the property and determine whether the fence row contains brush, briers, weeds and vegetation and if so, “shall cause them to be cut, by letting the work to the lowest bidder, or by entering into a private contract therefor.” The Kilroys petitioned the trustees under this process after their neighbors failed to clear the fence row when requested, but the trustees did not act on the petition or arrange for removal of the vegetation.

After the Kilroys filed suit against the trustees and the neighbors, the parties entered into a settlement agreement in which the neighbors agreed to clear the fence row and the trustees agreed to have the row cleared if the neighbors didn’t do the work.  The Kilroys later filed a second complaint alleging breach of the settlement agreement after neither the trustees nor the neighbors cleared the fence row.  The second complaint included individual claims against the trustees for intentional interference with a contract and civil conspiracy.  The neighbors finally cleared the fence row, but the Kilroys maintained the lawsuit against the trustees.  The parties entered into a second settlement agreement in which the trustees agreed to pay the sum of $15,000 and to issue an apology letter to the Kilroys.  Eventually, the matter ended up in court again for a breach of the agreement because the Kilroys did not receive either the $15,000 or the apology letter.   The trial court determined that the trustees had signed the settlement agreement in both their official and individual capacities and had subsequently breached the agreement; the court awarded the Kilroys $15,000 as specified in the agreement plus an additional $37,558 in attorney fees and $3,888 for fees paid to expert witnesses.  The trustees filed an appeal, but the Second District Court of Appeals agreed with the trial court’s decision.

Contrast the Kilroy case with a second dispute in Sterling Township, Brown County, where a farmer could not drive his new combine down a township road because of overgrown trees and brush along the road.  The farmer asked the trustees to trim the trees and vegetation but the trustees did not do so.  The farmer then trimmed the vegetation himself and submitted an invoice to the township for $1,863.  When the township did not pay the invoice, the farmer filed a lawsuit claiming that the township trustees had failed in their duty to keep the road free of obstructions and had also failed to eliminate a known safety hazard.  Included in the suit was a request to remove the trustees from office for failure to perform their official duties.  The Brown County Municipal Court dismissed the farmer’s case and the farmer filed an appeal on the claim alleging that the trustees had failed their statutory duty to maintain the roadway.

The court of appeals analyzed Ohio Revised Code sections 5571.02 and 5579.08, which state that a township shall keep its roadways in good repair and shall cut or destroy all brush, briers, vines, and noxious weeds growing along the roadways between the first and twentieth days of June, August and, if necessary, September.  The court noted that these sections of law do not provide the process for a private cause of action against the trustees as demanded by the farmer.  To enforce the law, the farmer must follow the proper legal process, explained the court, which is to first formally request the trustees to perform the action and then ask the court for an order compelling the action, referred to as a “writ of mandamus,” if they fail to do so.

In this case, the farmer did not formally present his request to have the trees trimmed to the township trustees.   He had called each trustee personally by phone and had visited one trustee at his home.  The County Prosecutor had advised the farmer to make an official complaint to the trustees, but the farmer never attended a trustee meeting or made a formal complaint about the vegetation.  By choosing instead to take matters into his own hands and trim the trees and vegetation himself, the farmer had “self-imposed” his own damages, said the court.  Seeking reimbursement for his own work was not the proper method for enforcing the township’s duty to clear the vegetation.

The lesson here should be clear to both township trustees and farmers.  Ohio law establishes duties and remedies for dealing with trees, weeds and vegetation in rural areas; township trustees must perform these duties and farmers must know how to seek a remedy.  The different outcomes from these cases illustrate the importance of knowing and following the proper legal process.

Read Kilroy v. Jackson Township here and Mezger v. Horton here.  See Ohio Revised Code sections here: 971.34 and 5579.08

Peggy Hall, Asst. Professor, OSUE Agricultural & Resource Law Program       

Does an Ohio resident have a constitutional right to keep rabbits, goats, chickens, horses, cows, ducks, turkeys, geese or other fowl on his or her property?  No, according to a recent decision by Ohio's Eighth District Court of Appeals.  Nor does a city ordinance that prohibits the keeping of such animals violate the federal or state constitutions.

A resident of Bedford, Ohio raised the challenge after being found guilty of a minor misdemeanor for keeping a pygmy goal and four chickens at his home, in contradiction to a city ordinance.  The resident claimed that the city ordinance violates the U.S. Constitution and Ohio Constitution, Article 1, Section 1, which provides:  "All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety."

But the court noted that the Ohio Constitution also states in Article 1, Section 19 that "Private property shall ever be held inviolate, but subservient to the public welfare,"  which allows a law to interfere with private rights to accomplish a valid public welfare purpose.   Where a law does affect private rights, the court explained that it must scrutinize the law and its purpose.  Interferences with fundamental private  rights require the most strict scrutiny, but the court quickly followed precedents set by other Ohio courts to reiterate that the right to maintain animals is not a fundamental right.  Thus, under a lower level of judicial scrutiny, a law that interferes with the right to keep animals will be upheld if the law is "rationally related to a legitimate government interest."  According to the court, the Bedford ordinance surpasses this test because the law protects the public from unsanitary conditions and noxious odors by prohibiting certain animals in an urban area.

All is not lost for city dwellers who want farm animals, however.  Recognizing the popularity of "urban farms" and "backyard chickens," the court explained that residents in urban areas can petition their lawmakers to allow such animals as pets.  The local government could permit the animals while protecting public safety and welfare through building requirements or restrictions on the number of animals, the court explained.

The Bedford case is not unusual, but illustrates a continuing trend in conflicts over keeping animals in urban areas.  To read the court's opinion, see City of Bedford v. James L. Deal, here.

SPCC Rule will not be enforced against farms until September of 2013

Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program

Many farms are scrambling to meet the upcoming May 10, 2013, deadline for having an oil spill containment plan (SPCC plan) as required by EPA regulations,  but Congress has quietly delayed the U.S. EPA's ability to enforce the regulation.   Amendment 29 to the recently enacted funding bill, H.R. 933, states that the U.S. EPA may not use any of its funds to enforce the SPCC rule against farms for a period of 180 days, until after September 26, 2013.

The purpose of the U.S. EPA's Spill Prevention Control and Countermeasures (SPCC) program is to help facilities and farms prevent a discharge of oil into navigable waterways.  Program regulations affect farms that store more than 1,320 gallons of oil or oil products in aboveground containers or more than 42,000 gallons in completely buried containers--those farms are required to develop, maintain and implement an oil spill prevention plan by May 10, 2013.

The recent action by Congress, however, prevents the EPA from enforcing the plan until late September.  In the meantime, congressional efforts will focus on revising the SPCC rule as it applies to farm SPCC plans.  Senator Inhofe (OK), who sponsored the amendment to delay enforcement, has already co-sponsored a bill (S. 496)  with Senators Pryor (AR) and Boozman (AR) to provide more exemptions for small farms and help farms reduce compliance costs.

What should farmers do now about SPCC plans?  The future of the SPCC rule is uncertain, but we do know that the current deadline of May 10 can't be enforced by the EPA.  Farmers who are currently subject to the regulation must decide whether to proceed with compliance and be prepared for a possible September deadline, or wait and see if Congress changes SPCC requirements before the end of September.  If a farmer is subject to an attempted enforcement action after the May 10 deadline, contact legal counsel right away.  For those who have already developed SPCC plans, be assured that the plan may still be required in the future and could also be a useful tool for  reacting to an oil spill that could contaminate a waterway and reducing your environmental liability risk.   For more information about the SPCC rule, visit here.

Posted In: Environmental, Property
Tags: farm oil spill plans, SPCC plan
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