agricultural district program

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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Fall harvest is a time of year when we hear complaints from neighbors and community residents about what we do in agriculture. Dust, grain bin dryers, equipment taking up the road, working late into the night or early in the morning ... these are the inconveniences of living in an agricultural area. But when do these activities become legally problematic as a “nuisance” to neighbors and others? Not often, due to Ohio’s Right to Farm Law. Even so, the Right to Farm Law expects us to conduct our agricultural activities according to regulations and practices that may reduce the nuisance impacts of farming, and it gives us nuisance protection when we do so.
Enacted in 1982, Ohio’s Right to Farm Law offers a nuisance defense for farming activities under certain conditions. Ohio was one of many states that passed a Right to Farm Law in the 1980s after the highly publicized Arizona case of Spur Industries v. Del E. Webb. In that case, the developer of a retirement community in Arizona sought to shut down a cattle feedlot that it claimed was a nuisance to its community residents. But the Arizona Supreme Court noted that the developer “came to the nuisance,” making the previously existing feedlot activities a nuisance only because the developer chose to locate residences near the feedlot, in an agricultural area.
Ohio adopted this “coming to the nuisance” approach in its Right to Farm Law soon after the Spur Industries case. The law’s intent is to protect agricultural landowners from nuisance claims made by those who move into an existing agricultural area and later complain about the agricultural activities occurring in the area. If faced with a nuisance complaint by someone who “came to the nuisance,” an agricultural landowner can use the Right to Farm Law as a defense against the complaint.
How the Right to Farm Law works
The Right to Farm Law has three requirements a landowner must meet to use the law as a defense against a nuisance claim.
- The agricultural activities that are the source of the nuisance complaint must be on qualifying land, which includes:
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- Land enrolled with the county auditor as “agricultural district land,” (which is not a zoning designation) or
- Land “devoted exclusively to agricultural use” under Ohio’s Current Agricultural Use Valuation law.
Both of these provisions establish the same criteria for the land: it must be either ten acres or more of land devoted to commercial agricultural production, or if less than ten acres and devoted to commercial agricultural production, it must generate a gross average annual income of $2500. Certain land devoted to bioenergy, biomass, methane, or electric or heat energy production also qualifies, if contiguous to other qualifying land, as can land under government conservation and land retirement programs.
Early versions of the Right to Farm Law required that the land be enrolled in the “agricultural district program” with the county auditor, not to be confused with having a zoning designation of agricultural district. But changes to the law removed the enrollment requirement, allowing nuisance protection even if the landowner has not enrolled land in that program.
- The agricultural activities were established prior to the plaintiff's activities or interest on which the action is based.
This is the “coming to the nuisance” timing element. The agricultural activities must have been in the area first, before the person complaining of a nuisance came to the area.
- The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices.
The intent of the law is to protect “good operators” who follow legal requirements or generally accepted agricultural practices for the agricultural activity that is the source of the complaint. An operator who disregards law, regulations, and acceptable practices that apply to the agricultural activity loses the nuisance protection.
What are “agricultural activities”?
We often receive questions about the kinds of activities the law covers, or whether the protection applies if a farmer changes or expands an operation. The Right to Farm Law answers these questions with the following:
"Agricultural activities" means common agricultural practices, including all of the following:
(1) The cultivation of crops or changing crop rotation;
(2) Raising of livestock or changing the species of livestock raised;
(3) Entering into and operating under a livestock contract;
(4) The storage and application of commercial fertilizer;
(5) The storage and application of manure;
(6) The storage and application of pesticides and other chemicals commonly used in agriculture;
(7) A change in corporate structure or ownership;
(8) An expansion, contraction, or change in operations;
(9) Any agricultural practice that is acceptable by local custom.
What if a farmer is threatened with a nuisance claim?
A few steps can help a farmer deal with a threatened nuisance claim.
- Document the activity or area that is the source of the complaint with pictures, videos, notes, weather conditions, etc.
- Review the situation to determine if there are additional management practices that could reduce any future nuisance impacts of the activity.
- If the person takes legal action, notify your property insurance provider. Your insurer will need to be aware of potential litigation because if the issue is one that relates to your insured activities, your insurer will defend you in a lawsuit.
- Consider educating the person about your farming practices and the Right to Farm law. Share articles like this one, or have an agricultural attorney draft a letter explaining the law. A person might not pursue a claim after understanding the activities or realizing that the Right to Farm Law would likely dismiss the claim.
Don't forget the good neighbor part
Although Ohio farmers have the Right to Farm Law as a defense against nuisance claims, it’s still good practice to be aware of how our farming activities affect neighbors. While the law recognizes that we can’t remove all of the dust, noise, road use, and odors of farming, it does expect us to be “good operators.” Being a good operator and instituting practices that can reduce nuisance impacts is the first line of defense against the potential of a neighbor nuisance claim.
Read the Ohio Right to Farm Law's "defense to a civil action for nuisance" at Ohio Revised Code Section 929.04.
Tags: nuisance, neighbor law, farm neighbor law, Right to Farm Law, agricultural district program
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