It’s time to round up a sampling of legal questions we’ve received the past month or so. The questions effectively illustrate the breadth of “agricultural law,” and we’re happy to help Ohioans understand its many parts. Here’s a look at the inquiries that have come our way,
I’m considering a carbon credit agreement. What should I look for? Several types of carbon credit agreements are now available to Ohio farmers, and they differ from one another so it’s good to review them closely and with the assistance of an attorney and an agronomist. For starters, take time to understand the terminology, make sure you can meet the initial eligibility criteria, review payment and penalty terms, know what types of practices are acceptable, determine “additionality” requirements for creating completing new carbon reductions, know the required length of participation and how long the carbon reductions must remain in place, understand how carbon reductions will be verified and certified, be aware of data ownership rights, and review legal remedy provisions. That’s a lot! Read more about each of these recommendations in our blog post on “Considering Carbon Farming?”
I want to replace an old line fence. Can I remove trees along the fence when I build the new fence? No, unless they are completely on your side of the boundary line. Both you and your neighbor co-own the boundary trees, so you’ll need the neighbor’s permission to remove them. You could be liable to the neighbor for the value of the trees if you remove them without the neighbor’s approval, and Ohio law allows triple that value if you remove them against the neighbor’s wishes or recklessly harm the trees in the process of building the fence. You can, however, trim back the neighbor’s tree branches to the property line as long as you don’t harm the tree. Also, Ohio’s line fence law in ORC 971.08 allows you to access up to 10 feet of the neighbor’s property to build the fence, although you can be liable if you damage the property in doing so.
I want to sell grow annuals and sell the cut flowers. Do I need a nursery license? No. Ohio’s nursery dealer license requirement applies to those who sell or distribute “nursery stock,” which the law defines as any “hardy” tree, shrub, plant, bulb, cutting, graft, or bud, excluding turf grass. A “hardy” plant is one that is capable of surviving winter temperatures. Note that the definition of nursery stock also includes some non-hardy plants sold out of the state. Because annual flowers and cuttings from those flowers don’t fall into the definition of “nursery stock,” a seller need not obtain the nursery dealer license.
Must I collect sales tax on cut flowers that I sell? Yes. In agriculture, we’re accustomed to many items being exempt from Ohio’s sales tax. That’s not the case when selling flowers and plants directly to customers, which is a retail sale that is subject to the sales tax. The seller must obtain a vendor’s license from the Ohio Department of Taxation, then collect and submit the taxes regularly. Read more about vendor’s licenses and sales taxes in our law bulletin at this link.
I’m an absentee landowner who rents my farmland to a tenant operator. Should I have liability insurance on the land? Yes. A general liability policy with a farm insurer should be affordable and worth the liability risk reduction. But a few other steps can further minimize risk. Require your tenant operator to have liability insurance that adequately covers the tenant’s operations, and include indemnification provisions in your farm lease that shift liability to the tenant during the lease period. Also consider requiring your tenant or hiring someone to do routine property inspections, monitor trespass issues, and ensure that the property is in a safe condition.
My neighbor and I both own up to the shoreline on either side of a small lake--do I have the right to use the whole lake? It depends on where the property lines lay and whether the lake is connected to other waters. If the lake is completely surrounded by private property and not connected to other “navigable” waters, such as a stream that feeds into it, the lake is most likely a private water body. Both of you could limit access to your side of the property line as it runs through the lake. You also have the legal right to make a “reasonable use” of the water in the lake from your land, referred to as “riparian rights.” You could withdraw it to water your livestock, for example; but you cannot “unreasonably” interfere with your neighbor’s right to reasonably use the water. The law changes if the lake is part of a “navigable” waterway. It is then a “water of the state” that is subject to the public right of navigation. Others could float on and otherwise navigate the water, and you could navigate over to your neighbor’s side. Public users would not have the riparian rights that would allow them to withdraw and use the water, however, and would be trespassing if they go onto the private land along the shore.
If I start an agritourism activity on my farm, will I lose my CAUV status? No, not if your activities fit within the legal definition of “agritourism.” Ohio law states in ORC 5713.30(A)(5) that “agritourism” activities do not disqualify a parcel from Ohio’s Current Agricultural Use Valuation (CAUV) program. “Agritourism,” according to the definition in ORC 901.80, is any agriculturally related educational, entertainment, historical, cultural, or recreational activity on a “farm” that allows or invites members of the general public to observe, participate in, or enjoy that activity. The definition of a “farm” is the same as the CAUV eligibility—a parcel devoted to commercial agricultural production that is either 10 acres or more or, if under 10 acres, grosses $2500 annually from agricultural production. This means that land that is enrolled in the CAUV program qualifies as a “farm” and can add agritourism activities without becoming ineligible for CAUV.
Send your questions to email@example.com and we’ll do our best to provide an answer. Also be sure to check out our law bulletins and the Ag Law Library on https://farmoffice.osu.edu, which explain many of Ohio’s vast assortment of agricultural laws.
I recall sharing my concern with a professor when I was in law school: how will I ever know all the answers to legal questions? No worries, he said. You can’t know the answer to every legal question, but you do need to know how to find the answers. I think of that advice often as legal questions come across my desk.
We’ve had a steady stream of them this summer, and the questions provide a snapshot of what’s going on around the state. Here’s a sampling of questions we’ve received recently, complete with our answers—some we knew and some we had to find.
What do you know about the $500 million to be set aside at USDA for meat processors—who will administer it and what is the timeline? USDA published a notice on July 16, 2021 titled “Investments and Opportunities for Meat and Poultry Processing Infrastructure” seeking input on how to allocate the funds. The notice solicits comments on how to address challenges and increase competition in meat and poultry processing through the $500 million in infrastructure and other investments. USDA is looking at current programs, combinations of programs, and potential programs that can leverage the funds to expand and diversify meat and poultry processing capacity and make the supply chain more resilient. A review of the questions USDA raised in the notice gives a good indication of the types of programs we might see, and administration of the programs could be at both the federal and state levels. The comments are due by August 30, 2021 and USDA will review them before moving forward. It will be at least several months before decisions are made and the funds are available.
If I enroll my land in the Wetlands Reserve Program, does the land still qualify for Current Agricultural Use Valuation tax treatment? Yes. Ohio’s CAUV law allows eligible land to be assessed as agricultural land for property taxation under the CAUV formula. Eligible land is “land devoted exclusively to agricultural use.” The definition of that term is important, and the relevant section that places wetlands and other conservation practices within that definition is ORC 5713.30(A)(1(c), which states that "land devoted exclusively to agricultural use" include tracts, lots, or parcels of land with at least ten acres which “were devoted to and qualified for payments or other compensation under a land retirement or conservation program under an agreement with an agency of the federal government.” According to court cases in Ohio, wetlands enrolled in federal conservation programs fit within this term and should qualify for CAUV treatment, even wetlands used as a mitigation bank. An Ohio Attorney General opinion disagrees that a wetlands mitigation bank is a government conservation program, but that is an advisory rather than binding opinion and a mitigation bank is not the same as the federal Wetlands Reserve Program.
Are there any special requirements for a cottage food producer for selling “gluten free” or “vegan” products? Yes. You need to ensure that you meet federal regulations to use “gluten free” terminology on your cottage food label. There isn’t a label review and approval process for using the language, though, as it’s “self-policing.” You must be sure that your product does not include any gluten containing ingredients. And because low levels of gluten could result from cross contamination in your kitchen, your product must be below the tolerance level of 20 ppm of gluten. There isn’t a testing requirement to prove that you’re under 20 ppm before you sell it, but if for some reason someone challenged your product or ODA randomly sampled it, it must meet the 20 ppm standard. You can have your food lab tested if you want to have that assurance. Otherwise, you should carefully manage your kitchen to reduce cross contamination. The FDA provides the gluten free labeling rule on its website and has a helpful FAQ page also. FDA has said it will be updating the gluten free rule, but I haven’t seen anything new yet.
Vegan labeling is a lesser regulatory concern. If you use that or related terms like “animal free” on your product, federal law requires that you be “truthful and not misleading” to the consumer. There isn’t a federal or state definition of “vegan” to help with that determination, but the agencies explain the term basically as not containing any animal products. Your ingredient list should confirm any vegan or animal free claims on the product.
Are there regulations pertaining to online sales of perennial plants? Yes. The seller must obtain a nursery license from the Ohio Department of Agriculture. The type of license will depend on their type of sales. A phytosanitary certificate might also be required by the importing states where their sales will take place; ODA also handles those certificates. Additionally, the seller will need to obtain a vendor’s license from the Department of Taxation to collect and submit sales tax on the plant sales.
Does a “Scenic River” designation by the Ohio Department of Natural Resources allow the agency to take my property that’s along the river? No. The language in the Scenic Rivers statute is misleading, as it states that “the area shall include lands adjacent to the watercourse in sufficient width to preserve, protect, and develop the natural character of the watercourse, but shall not include any lands more than one thousand feet from the normal waterlines of the watercourse unless an additional width is necessary to preserve water conservation, scenic, fish, wildlife, historic, or outdoor recreation values.” Without reading the entire statute, it does sound as though ODNR could be laying some type of claim to up to 1,000 feet of the lands adjacent to the river. However, further along in the statute is this language that prohibits the agency from having any authority over the private land: “Declaration by the director that an area is a wild, scenic, or recreational river area does not authorize the director or any governmental agency or political subdivision to restrict the use of land by the owner thereof or any person acting under the landowner's authority or to enter upon the land and does not expand or abridge the regulatory authority of any governmental agency or political subdivision over the area.” The designation is a declaration, and not a land claim, transfer of rights, or a taking. Additionally, my further research indicates that ODNR has never used eminent domain to take private property along a scenic river, nor does it have funding allocated from the legislature to purchase scenic river lands.
Do I need a license to make and sell egg noodles from the farm? Yes. Egg noodles don’t fall under Ohio’s Cottage Food Law, which allows you to make and sell certain low-risk “cottage foods” with little regulation or licensing requirements. Instead, producing egg noodles for sale from a home kitchen requires a home bakery registration. You obtain the registration from the Ohio Department of Agriculture’s Food Safety Division. It requires that you submit a request for inspection form, pass an inspection of the home, and submit a $10 fee. The inspection will confirm that walls, ceilings and floors are clean, easily cleanable and in good repair; the kitchen does not have carpeted floors; there are no pets or pests in the home; the kitchen, equipment and utensils are maintained in a sanitary condition; the kitchen has a mechanical refrigerator capable of maintaining 45 degrees and equipped with a thermometer; if the home has a private well, proof of a well test completed within the past year showing a negative test result for coliform bacteria; the food label meets labeling requirements.
Is raising and training dogs considered “animal husbandry” for purposes of d the agricultural exemption from township zoning authority? Yes. The Ohio Supreme Court held in Harris v. Rootstown Twp. that “the raising and care of dogs constitutes animal husbandry and is included in the term “agriculture” within the meaning of R.C. 519.01.” This means that the agricultural exemption in Ohio Revised Code 519.21 applies to raising and caring for dogs, and township zoning can’t prohibit the use of any lot over five acres for those purposes. The township would have limited regulatory authority over dog raising on smaller lots in some situations, though. There is often confusion among townships over how to classify dogs, and that may be because they differ from what we typically think of as “farm animals.” But the Rootstown Twp. case, along with many other appellate level cases in Ohio, confirm that dogs are to be treated the same as “livestock” for purposes of the agricultural exemption from zoning.
Can both landowners be assessed half the cost of removal of noxious weeds that are growing in a partition fence? Maybe. The Ohio line fence law does allow a township to step in and clear the fence row of noxious weeds, brush, briers and similar vegetation if a complaint is filed by one landowner against an adjacent landowner who refuses to clear the weeds. The costs for doing so are assessed back on the refusing landowner whose fence row was cleared. If the noxious weeds arise from both sides of the fence, are growing in the fence, and must be cleared from both sides of the fence, the township trustees would have the authority to assess the costs of removal back on both landowners. I’ve never heard of that happening, but it’s certainly one of those “be careful what you wish for” situations.
We learn early in law school that it’s an uphill battle when challenging agency actions in court, as the law typically grants agencies discretion to apply expertise and professional judgment when making decisions. A landowner in Clark County just learned this lesson. The landowner appealed the Ohio tax commissioner’s adoption of the 2016 Current Agricultural Use Valuation (CAUV) table, but the Ohio Supreme Court found no showing of an abuse of discretion by the agency.
The case arose from the CAUV valuation update in 2016 of William Johnson’s land in Clark County. In setting the CAUV values, the county auditor consulted the unit-value table adopted by the tax commissioner. The unit-value table lists soil types and ratings of each soil type along with per-acre values for each soil type. The tax commissioner annually adopts the table using a potential-income approach, as required by Ohio law, which determines typical net income from agricultural products for each type of soil, assuming typical management, yields, and cropping and land use patterns. A county auditor refers to the unit-value table when determining CAUV farmland values, applying the per-acre values from the table to the soil types on a parcel.
Johnson claimed that his CAUV value was too high because the 2016 unit-value table adopted by the tax commissioner did not list separate values for drained and undrained soils on his land. The table does list differing values for Adrian, Carlisle and Linwood soils—one value for drained soils and one value for undrained soils. However, the table lists just one value for all Crosby, Kokomo, and Patton soil types, the soils contained on the Johnson’s parcel. Johnson argued that the tax commissioner erred by adopting the unit-value table without establishing separate values for drained and undrained Crosby, Kokomo, and Patton soil types.
The Supreme Court explained that Johnson’s challenge required showing that the tax commissioner committed an “abuse of discretion” in adopting the unit-value table. Two important principles apply to the “abuse of discretion” standard, the first being that the court will not substitute its judgment for the agency’s judgment unless the agency acted with an unreasonable, arbitrary, or unconscionable attitude. The court also presumes that an agency’s decision is carried out in good faith and with sound judgment, unless there is proof to the contrary.
According to Johnson, the tax commissioner abused his discretion in several ways: by departing from the USDA’s taxonomy of soils, excluding data for land lacking artificial drainage, and not listing all soils with drained and undrained variations. The court found no abuse of discretion, however, and no evidence to support the Johnson’s claims. The court pointed out that the commissioner, as required by law, consulted with the “agricultural advisory committee” in preparing the table and referred to both Ohio State University’s Bulletin 685 and updates to the USDA taxonomy for guidance on soil types. Explaining that the CAUV potential-income approach required the commissioner to determine “typical” management practices, the court stated that the commissioner was justified in not establishing a separate value for the Johnson’s “atypical practice” of not installing artificial drainage for the specific soils on his property. Considering investments required for artificial drainage for some soil types but not for others doesn’t prove an abuse of discretion, the court stated.
The court’s conclusion reiterates the lesson on the difficulty of challenging an agency decision:
“To repeat: the differential treatment of soil types reflects the exercise of judgment by the commissioner, which we presume to be sound. . . The record does not disclose the rationale for every consideration underlying the unit-value table, but it was not the commissioner’s burden to demonstrate the reasonableness of the CAUV journal entry—it was Johnson’s burden to show an arbitrary or unconscionable attitude on the part of the commissioner. He has not done so.”
The year is still fairly new, and 2020 has brought with it some newly-introduced legislation in the Ohio General Assembly. That being said, in 2020 the General Assembly also continues to consider legislation first introduced in 2019. From tax exemptions to CAUV changes, to watershed programs and local referendums on wind turbines, here is some notable ag-related legislation making its way through the state house.
- House Bill 400 “To authorize a nonrefundable income tax credit for the retail sale of high-ethanol blend motor fuel”
HB 400 was introduced after our last legislative update in November, so while it was first introduced in 2019, it still technically qualifies as “new” to us. Since its introduction, the bill has been discussed in two hearings in the House Ways & Means Committee. The bill would give owners and operators of gas stations a tax rebate of five cents per gallon for sales of ethanol. To apply, the fuel would have to be between 15% and 85% ethanol (E15). If passed, the tax credit would be available for four years. The bill is meant to encourage gas station owners in Ohio to sell E15, which is much more readily available in other states. The bill is available here.
- House Bill 485 “To remove a requirement that owners of farmland enrolled in the CAUV program must file a renewal application each year in order to remain in the program”
Introduced on January 29, 2020, HB 485 would make it easier for farmers to stay enrolled in the Current Agricultural Use Valuation (CAUV) program. CAUV allows agricultural land to be taxed at a much lower rate than other types of land. If HB 485 were to pass, the initial application for CAUV on land more than 10 acres would automatically renew each year but the landowner must notify the auditor if the land ceases to be devoted exclusively for agricultural use. Owners of agricultural land less than 10 acres in size, who can qualify for CAUV if gross income from the land exceeds $2,500, would have to submit documentation on the annual gross income of the land to the county auditor each year rather than filing the renewal application. The CAUV bill can be found here.
Legislation from 2019 still being considered
- House Bill 24 “Revise Humane Society law”
In November, we reported that HB 24 passed the House unanimously and was subsequently referred to the Senate Committee on Agriculture & Natural Resources. Since that time, the committee has held two hearings on the bill. The hearings included testimony from the bill’s House sponsors, who touted how the bill would improve humane societies’ public accountability. The bill would revise procedures for humane society operations, require humane society agents to successfully complete training in order to serve, and would establish procedures for seizing and impounding animals. It would also remove humane societies’ current jurisdiction over child abuse cases and make agents subject to bribery laws. Importantly, HB 24 would allow law enforcement officers to seize and impound any animal the officer has probable cause to believe is the subject of an animal cruelty offense. Currently, the ability to seize and impound only applies to companion animals such as dogs and cats. You can read HB 24 here.
- House Bill 109 “To authorize a property tax exemption for land used for commercial maple sap extraction”
HB 109 was first introduced in February of 2019, but has recently seen some action in the House Ways & Means Committee, where it was discussed in a hearing on January 28, 2020. The bill would give owners of “maple forest land” a property tax exemption if they: (1) Drill an average of 30 taps during the tax year into at least 15 maple trees per acre; (2) use sap in commercially sold maple products; and (3) manage the land under a plan that complies with the standards of reasonable care in the protection and maintenance of forest land. In addition, the land must be 10 contiguous acres. Maple forest land that does not meet that acreage threshold can still receive a tax exemption if the sap produces an average yearly gross income of $2,500 or more in the three preceding years, or if evidence shows that the gross income during the current tax year will be at least $2,500. You can find the text of the proposed bill here.
- House Bill 160 “Revise alcoholic ice cream law”
Have you ever thought, “Gee, this ice cream is great, but what could make it even better?” Well this is the bill for you! At present, those wishing to sell ice cream containing alcohol in Ohio must obtain an A-5 liquor permit and can only sell the ice cream at the site of manufacture, and that site must be in an election precinct that allows for on- and off-premises consumption of alcohol. This bill would allow the ice cream maker to sell to consumers for off-premises enjoyment and to retailers who are authorized to sell alcohol. HB 160 passed the House last year and is currently in Agriculture & Natural Resources Committee in the Senate. Since our last legislative update, the committee has had three hearings on the bill. In the hearings, proponents testified in support of the bill, arguing that it would allow their businesses to grow and compete with out of state businesses. Senators asked questions about how the ice cream would be kept away from children, how the bill would help business, and about other states with similar laws. To read the bill, click here.
- Senate Bill 2 “Create watershed planning structure”
In 2019, SB 2 passed the Senate and moved on to the House Energy and Natural Resources Committee. If passed, this bill would do four main things. First, it would create the Statewide Watershed Planning and Management Program, which would be tasked with improving and protecting the watersheds in the state, and would be administered by the ODA director. Under this program, the director of ODA would have to categorize watersheds in Ohio and appoint watershed planning and management coordinators in each watershed region. The coordinators would work with soil and water conservation districts to identify water quality impairment, and to gather information on conservation practices. Second, the bill states the General Assembly’s intent to work with agricultural, conservation, and environmental organizations and universities to create a certification program for farmers, where the farmers would use practices meant to minimize negative water quality impacts. Third, SB 2 charges ODA, with help from the Lake Erie Commission and the Ohio Soil and Water Conservation Commission, to start a watershed pilot program that would help farmers, agricultural retailers, and soil and water conservation districts in reducing phosphorus. Finally, the bill would allow regional water and sewer districts to make loans and grants and to enter into cooperative agreements with any person or corporation, and would allow districts to offer discounted rentals or charges to people with low or moderate incomes, as well as to people who qualify for the homestead exemption.
Since SB 2 moved on to the lower chamber, the House Energy and Natural Resources Committee has held multiple hearings on the bill, and has consented to two amendments. The first amendment would keep information about individual nutrient management plans out of the public record. Similarly, the second amendment would keep information about farmers’ agricultural operations and conservation practices out of the public record. The text of SB 2 is available here.
- Senate Bill 234 “Regards regulation of wind farms and wind turbine setbacks”
SB 234 was introduced on November 6, 2019. Since that time, the bill was assigned to the Senate Energy & Public Utilities Committee, and three hearings have been held. The bill would give voters in the unincorporated areas of townships the power to have a referendum vote on certificates or amendments to economically significant and large wind farms issued by the Ohio Power and Siting Board. The voters could approve or reject the certificate for a new wind farm or an amendment to an existing certificate by majority vote. The bill would also change how minimum setback distances for wind farms might be measured. The committee hearings have included testimony from numerous proponents of the bill. SB 234 is available here. A companion bill was also introduced in the House. HB 401 can be found here.
The decision on whether to take prevented planting is a tough one, but don’t let concerns about increased property taxes on idle land enter into the equation. Ohio’s Current Agricultural Use Valuation program allows landowners to retain the benefit of CAUV tax assessment on agricultural land even if the land lies idle or fallow for a period of time.
Ohio’s CAUV program provides differential property tax assessment to parcels of land “devoted exclusively to agricultural use” that are ten acres or more or, if less than ten acres, generated an average gross income for the previous three years of $2,500 or more from commercial agricultural production. Timber lands adjacent to CAUV land, land enrolled in federal conservation programs, and land devoted to agritourism or bio-mass and similar types of energy production on a farm also qualify for CAUV.
There must have been some farmers in the legislature when the CAUV law was enacted, because the legislature anticipated the possibility that qualifying CAUV lands would not always be actively engaged in agricultural production. The law allows CAUV land to sit "idle or fallow" for up to one year and remain eligible for CAUV, but only if there's not an activity or use taking place on the land that's inconsistent with returning the land to agricultural production or that converts the land from agricultural production. After one year of lying idle or fallow, a landowner may retain the CAUV status for up to three years by showing good cause to the board of revision for why the land is not actively engaged in agricultural production.
The law would play out as follows. When the auditor sends the next CAUV reenrollment form for a parcel that qualifies for CAUV but was not planted this year due to the weather, a landowner must certify that the land is still devoted to agricultural production and return the CAUV form to the auditor. The auditor must allow the land to retain its CAUV status the first year of lying idle or fallow, as long as the land is not being used or converted to a non-agricultural use. If the land continues to be idle or fallow for the following year or two years, the auditor could ask the landowner to show cause as to why the land is not being used for agricultural production. The landowner would then have an opportunity to prove that the weather has prevented plans to plant field crops, as intended by the landowner. After three years, the landowner would have to change the land to a different type of commercial agricultural production to retain its CAUV status if the weather still prevents the ability to plant field crops on the parcel. Other agricultural uses could include commercial animal or poultry husbandry, aquaculture, algaculture, apiculture, the production for a commercial purpose of timber, tobacco, fruits, vegetables, nursery stock, ornamental trees, sod, or flowers, or the growth of timber for a noncommercial purpose, if the land on which the timber is grown is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use.
Being forced out of the fields due to rain is a frustrating reality for many Ohio farmers today. One positive assurance we can offer in the face of prevented planting is that farmers won't lose agricultural property tax status on those fields this year. Read Ohio’s CAUV law in the Ohio Revised Code at sections 5713.30 and 5713.31.
Last month a lawsuit about Ohio’s Current Agricultural Use Value (CAUV) calculation showed back up on our radar. As we explain in another blog post, the state of Ohio uses CAUV to calculate how much tax owners of land devoted exclusively to an agricultural use must pay. The plaintiffs sought reimbursements from the state by arguing that the state failed to properly calculate CAUV in accordance with Ohio law. The case was dismissed by the Franklin County Court of Common Pleas, and the 10th District Court of Appeals affirmed that decision as appropriate. However, that does not necessarily spell the end for these plaintiffs.
What started the lawsuit: good times meant higher taxes
Many farmland owners likely remember what happened around the middle of this decade to property tax assessments under Ohio’s CAUV formula as it was calculated at that time. In part because Ohio’s CAUV assessment formula takes agricultural commodity prices into account, a couple of strong years for crop prices contributed to a drastic and generally unanticipated increase in property tax bills for farmers across the state. Those assessment increases led to a successful effort to change the CAUV formula so that drastic fluctuations would be less likely to occur moving forward. However, some property owners wanted a reimbursement for previous assessments, not just a new formula.
What the plaintiffs wanted: equitable restitution
The case began on June 26, 2015, when three parties filed a complaint in a county court of common pleas against the state tax commissioner. The three plaintiffs sought a class action certification to act on behalf of all owners of Ohio lands devoted to agricultural production. The complaint alleged that the state of Ohio illegally collected more than a billion dollars of property taxes from those owners. Therefore, the landowners first sought repayment under the legal doctrine of unjust enrichment.
Over the next few months, the plaintiffs amended their complaint twice. The first amended complaint added a claim for repayment under the doctrine of equitable restitution. It also added more named plaintiffs, added then-Governor Kasich as a defendant, and asked for compensatory damages. The second amended complaint removed the Governor and tax commissioner as defendants, added the state of Ohio as a defendant, and removed all claims except for equitable restitution and a declaratory judgment. Lots of adjustments, but what is equitable restitution?
Equitable restitution is a type of recovery under the law that says one party has improperly benefitted at the expense of another, and therefore should return the benefit to its rightful owner. Here, the plaintiffs argued that allegedly illegal CAUV collections meant that the state of Ohio had improperly benefitted at the expense of owners of CAUV lands. Therefore, the state of Ohio should have to return that benefit, which would mean a return of the property tax overpayments.
However, there are two types of restitution under the law: legal and equitable. Legal restitution is available when a plaintiff cannot assert a right of possession to a particular property but is nonetheless able to shows grounds for compensation from the defendant. When money is involved, the distinction is largely based upon whether money clearly identifiable as belonging to the plaintiff can be traced to particular funds in the defendant’s possession. If the money can be traced to particular funds, then equitable restitution is more likely to apply.
For example, say that a plaintiff gave a defendant a five dollar bill, but something goes wrong and the plaintiff wants her money back. The plaintiff may have an equitable remedy if she seeks the return of that specific five dollar bill. However, she may only have a legal remedy if she simply wants five dollars back. This distinction played an important role in the outcome of this case.
Why the case was dismissed: lack of jurisdiction
The lawsuit was ultimately dismissed because the common pleas court determined that it could not hear the case because of the nature of the remedy sought. Instead, in ruling on the state’s motion to dismiss, the common pleas court decided, and the appellate court affirmed, that only the Ohio Court of Claims has jurisdiction for this type of case.
The Ohio Court of Claims is a special kind of state court that exists primarily to handle lawsuits against the state of Ohio. Its existence stems from the idea in the U.S. Constitution’s Eleventh Amendment that states have immunity as sovereigns. States may choose if and when to be sued; however, most have waived that immunity to some extent. Ohio chose to partially waive its sovereign immunity in particular types of cases by allowing people to sue it in a special court instead of in a county court of common pleas.
When it created the Ohio Court of Claims, the Ohio General Assembly decided that people seeking relief at law must file their lawsuit with the Ohio Court of Claims, while those seeking equitable relief may file their lawsuit with a county court of common pleas.
Restitution happens to be a type of remedy that can be classified as either legal or equitable in nature. The focus is not on what the parties call the restitution they seek, but what they actually want from it. In this case, it was not enough that the plaintiffs called what they wanted “equitable restitution.” The court only cared about what the plaintiffs actually sought.
In looking at the facts, the court determined that the plaintiffs sought the return of funds that could not be traceable into any state account, and therefore the remedy sought was legal in nature. The court explained that Ohio’s property taxes are collected and held at the county level, and there was no evidence that the CAUV property tax collected by the counties ever made it to the state. Absent this transfer, the specific tax dollars that the plaintiffs allege were wrongfully paid to the state were not traceable to any state accounts. Without this traceable link, the plaintiffs could only seek a return of money in general, rather than the return of specific funds. Because of this, only the Ohio Court of Claims could hear this case and award this remedy.
It was on the basis of this distinction that the Franklin County Court of Common Pleas dismissed the case, and that the Tenth District Court of Appeals affirmed the dismissal.
What are the plaintiffs’ next steps: Ohio Court of Claims or the end?
The trial court dismissed the case “without prejudice,” meaning that the parties are not barred from filing the case again in a proper court. This can be common when the case is dismissed on a procedural basis where there could be a claim with some merit that has neither been decided on the merits nor settled. At this time, it does not appear that the plaintiffs have refiled the case in the Ohio Court of Claims, and we cannot predict whether or not they will do so.
The case is cited as Vance v. State, 2019-Ohio-1027 (10th Dist.), and the opinion is available on the Ohio Supreme Court’s website HERE.
When we are not on the road presenting, in the classroom teaching, or keeping up with the news for the blog, our team is busy working on large scale research projects for the Agricultural & Food Law Consortium. One of our recent projects looked at how states assess farmland for property tax purposes, and we then created a compilation of every state’s laws on this topic. Based upon the research, we found that property taxes are a fact of life for virtually all landowners in the United States, but that each state uses a “differential tax assessment” for agricultural lands.
What exactly is a differential tax assessment? Many Ohio farmers know about and use Ohio’s special property tax assessment known as CAUV, which is short for Current Agricultural Use Valuation. Instead of assessing property taxes on the basis of the market rate for developable land, CAUV uses a different formula that assesses the land on its value for agricultural production. CAUV is a form of differential tax assessment.
While each state utilizes differential tax assessments for agricultural lands, they use different definitions of agriculture, different formulas, and different application processes. Some areas of law utilize model acts that states may adopt in order to make it easier to do business across state lines. Differential tax assessments of agricultural land do not have a model act, so each state’s language reflects the culture, norms, and conditions of the respective state at the time the state adopted or amended its differential tax assessment.
An example close to home illustrates what this means. Under Ohio Revised Code § 5713.30(A), agricultural use means commercial animal or poultry husbandry, aquaculture, algaculture, apiculture, the commercial production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental trees, and sod. Commercial timber qualifies, but non-commercial timber only qualifies if it located on or next to land that otherwise would qualify for CAUV. Exclusive use requires just that: the land is exclusively used for an activity listed as an agricultural use. Lands of more than 10 acres that are exclusively devoted to agricultural uses qualify, but lands of less than 10 acres only qualify if the average yearly gross income exceeds $2,500 over the preceding three years. That is an example of a definition of what qualifies as agriculture for the purposes of the differential tax assessment.
The differential tax assessment project compiled the approaches taken by all fifty states, and the compilations are available on the National Agricultural Law Center website HERE. This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
A landowner may present evidence regarding the value and acreage of his or her land, but the Board of Tax Appeals (BTA) is free to weigh that evidence as it wishes, according to the Ohio Supreme Court. All seven justices agreed that the BTA in the case of Johnson v. Clark County Board of Revision acted with appropriate discretion, although two justices did not sign onto the reasoning as to why the BTA acted appropriately. The case involved a property owner’s challenge of the Clark County Auditor’s determination of Current Agricultural Use Valuation (CAUV) for property tax purposes.
Continue reading for more information about what CAUV is, how CAUV determinations and tax assessments can be appealed, what happened in the Johnson v. Clark County Board of Revision case, and the main takeaways from the Supreme Court’s decision.
What is CAUV?
CAUV permits owners of land devoted exclusively to agricultural uses to request that the county auditor assess property for tax purposes based upon the value of the land’s current agricultural use, rather than its true market value. Since its inception, CAUV has generally provided landowners with qualifying property a lower tax bill than they otherwise would have using market value. Ohio most recently changed the formula for CAUV in 2017. If CAUV land is converted to a use that no longer qualifies for CAUV treatment, the land is again assessed based upon its fair market value and the landowner must pay to the county the difference between the CAUV value and the fair market value for the prior three years. To learn more about CAUV, visit the Ohio Department of Taxation’s CAUV webpage here.
How can a CAUV determination be appealed?
First, if a landowner believes that all or part of his or her parcel qualifies for CAUV, an application must be submitted to the county auditor where the land is located. County auditors are the “chief assessing officers of their respective counties” and have the authority, within the guidelines of the state tax commissioner, to make the initial CAUV determination under Ohio Revised Code § 5715.01(B). Landowners should contact their county auditors about filing instructions.
Second, the procedure to appeal whether land qualifies for CAUV is different than the procedure to appeal a tax valuation assessment. If a landowner does not agree with their county auditor’s determination as to whether or not land qualifies for CAUV, they have thirty days to file an appeal with their county court of common pleas under Ohio Revised Code § 929.02(A)(2). Decisions of courts of common pleas can be appealed to the state district court of appeals, and those decisions can be appealed to the Ohio Supreme Court.
If a landowner does not agree with their county auditor’s valuation assessment, the landowner may file a complaint with their county Board of Revision. The forms for these complaints are generally available at the county auditor’s office or website. If a Board of Revision believes that the county auditor made an error in applying the CAUV statute and rules, the board has the authority to revise tax assessments. If the landowner still does not agree with the Board of Revision’s decision, he or she may appeal to the Ohio Board of Tax Appeals within thirty days of the Board of Revision’s decision under Ohio Revised Code § 5717.01. More information is available on the BTA’s website here. Alternatively, under Ohio Revised Code § 5717.05, the landowner may appeal the Board of Revision’s decision to the appropriate county court of common pleas.
Decisions of the BTA can be appealed to the respective state district court of appeals where the land in question is located, and those decisions can be appealed to the Ohio Supreme Court. However, there are certain cases in which landowners can appeal decisions of the BTA directly to the Ohio Supreme Court under Ohio Revised Code § 5717.04. However, the types of appeals of a BTA decision eligible for direct appeal to the Ohio Supreme Court were reduced in September 2017 through House Bill 49.
What happened in Johnson v. Clark County Board of Revision?
Mr. Johnson challenged the Clark County Auditor’s 2013 tax assessment of his 154.61 acre farm. Neither party disagreed that the land qualified for CAUV, but Mr. Johnson disagreed with how much the Clark County Auditor said the farm was worth under the CAUV formula. For tax year 2013, the auditor assessed the property’s CAUV at $457,250.
Mr. Johnson appealed to the Clark County Board of Revision. He testified, and also elicited testimony from an employee of the Clark County Soil and Water Conservation District and an employee of the Clark County Auditor’s office. Further, Mr. Johnson presented photographs, official records from the tax commissioner and auditor, and a “self-prepared written statement purporting to convey [the SWCD employee’s] site-visit findings.” The Board of Revision rejected Mr. Johnson’s claims.
Mr. Johnson then appealed to the Ohio Board of Tax Appeals. Again, Mr. Johnson testified and produced a number of exhibits. At this appeal, he elicited testimony from an employee of the Ohio Department of Taxation. The BTA also rejected Mr. Johnson’s claims, finding that the Clark County Auditor had acted appropriately. Mr. Johnson then filed an appeal to the Ohio Supreme Court in 2016. Mr. Johnson represented himself pro se, or without an attorney.
What are the main takeaways, and why did the landowner not succeed?
First, the Ohio Supreme Court explained that a landowner challenging a Board of Revision or Auditor’s tax assessment must convince the BTA that his or her valuation assessment is correct and the one they are challenging is incorrect. This requirement to convince the Board of Tax Appeals is known as the burden of proof. The burden of proof determines which party must play an active role in proving his or her argument, while the opposing side will only have to present proof to counter if the board finds that the first party has carried its burden. Here, the court said that Mr. Johnson, as the landowner challenging the assessment, had the burden to convince the BTA. The court disagreed with Mr. Johnson’s argument that the county should have to rebut his evidence and prove the value that it assessed.
Second, even though the BTA properly said that Mr. Johnson had the burden of proof, this does not mean that the BTA should have presumed the Board of Revision’s decision to have been correct. Instead, the BTA must independently analyze the evidence presented to it, and not simply defer to and accept the Board of Revision’s decision. Here, the Ohio Supreme Court found that the BTA did conduct an independent assessment in confirming the Board of Revision’s determination.
Third, while an owner may present evidence as to the value of his or her land, a BTA has discretion to determine how much weight to give to that evidence. An owner’s opinion as to the value of his or her land is not determinative, but is merely a piece of evidence that the BTA may consider.
Fourth, instead of looking at the acreage, the focus of the assessment should be on boundaries and a property’s uses within those boundaries. The Ohio Supreme Court explained the distinction between calculating acres and delineating boundaries by using dictionary definitions, and the distinction is essentially that a bounded area is fixed in space, while acreage alone describes an area without a specific line of demarcation. To prove that a parcel or portion of a parcel qualify for CAUV treatment, the boundaries of the qualifying land must be determined. Acres can only be determined after the boundaries are established. Here, Mr. Johnson did not prove the boundaries of CAUV areas on his land to the BTA’s satisfaction, and the Ohio Supreme Court said that it was within the BTA’s discretion to reject Mr. Johnson’s evidence.
The Ohio Supreme Court’s full opinion, cited as 2018-Ohio-4390, is available here. Additional facts about the case can be found within the court’s opinion.
Decisions announced today by the Ohio Supreme Court will allow landowners to challenge Current Agricultural Use Valuation (CAUV) land values established by Ohio’s tax commissioner by appealing the values to the Board of Tax Appeals.
Twin rulings in cases filed by a group of owners of woodland enrolled in CAUV, Adams v. Testa, clarify that when the tax commissioner develops tables that propose CAUV values for different types of farmland, holds a public hearing on the values and adopts the final values by journal entry, the tax commissioner’s actions constitute a “final determination” that a landowner may immediately appeal to the Board of Tax Appeals. The Board of Tax Appeals had argued that the adoption of values is not a final determination and therefore is not one that a landowner may appeal to the Board.
The tax commissioner forwards the CAUV tables to the county auditors, who must use the values for a three year period. An inability to appeal the values when established by the tax commissioner would mean that a landowner must wait until individual CAUV tax values are calculated by the county auditor, who relies upon the tax commissioner’s values to calculate the county values. As a result of today’s decision, landowners may appeal the values as soon as the tax commissioner releases them.
The landowners also claimed that the process and rules for establishing the CAUV values are unreasonable and not legal. However, the Court rejected those claims.
For an excellent summary of the Adams v. Testa cases by Court News Ohio, follow this link.
Written by Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program
Governor Kasich signed HB 49 on June 30, 2017, otherwise known as Ohio’s Operating Budget. In addition to setting the budget for various agencies, HB 49 changes how farmland is valued under Ohio’s Current Agricultural Use Value program. HB 49 changes Ohio Revised Code Sec. 5715.01. The overall effect of the changes will likely be a downward trend in property tax valuation for Ohio farmers.
The budget bill prescribes the method for determining CAUV value for land devoted to agricultural use. The law requires appraisal methods to reflect and consider the following:
- standard and modern appraisal techniques that take into consideration the productivity of the soil under normal management practices;
- typical cropping and land use patterns;
- the average price patterns of the crops and products produced;
- typical production costs to determine the net income potential to be capitalized; and
- other pertinent factors.
Under HB 49, the Tax Commissioner must annually determine and announce the capitalization rate used to compute CAUV values. The bill directs the Tax Commissioner to use standard and modern appraisal techniques in determining the land capitalization rate to be applied to the net income potential from agricultural use. In determining this yearly rate, the Commissioner must use an equity yield rate equal to the greater of the average of the total rates of return on farm equity for the last 25 years (as published by USDA), or the loan interest rate the Commissioner uses for that year to calculate the capitalization rate. The Tax Commissioner is required to assume that the holding period for agricultural land is twenty-five years for computing buildup of equity or appreciation with respect to that land.
HB 49 requires that land used in conservation programs be valued at the lowest soil productivity type. However, if land devoted to a conservation program ceases to be used for conservation purposes within three years of certification, the land will be valued at its actual soil type for all preceding years.
The Tax Commissioner must publish an annual report of CAUV values that can be sorted by county and by school district. The changes to CAUV begin in 2017, starting with counties undergoing reappraisal for the 2017 tax year. The budget bill, as signed by the Governor, is here—see page 2145 of that document for the changes to CAUV.