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noxious weed law

By: Peggy Kirk Hall, Friday, September 17th, 2021

It’s time to round up another batch of legal Q&A.  Here's a sampling of questions from around the state that we’ve recently received in the Farm Office.

My township recently notified me of having noxious weeds.  They identified "ragweed" as the problem, but the Ohio Revised Code's list of noxious weeds doesn’t list "ragweed.”  What are my rights?  Under Ohio law, you have five days to respond to the township trustees to explain that no action need to be taken because no noxious weeds exist on the property and that plants were incorrectly identified as noxious weeds.  Therefore, your conversations with the township trustees should have met the legal requirements because you notified them that plants were incorrectly identified as noxious weeds.  Having a written record is always best, just in case there is ever a dispute, so you may want to follow up with the townships trustees in an email, just to confirm that no action need to be taken. 

I read that each landowner has a ten foot right of access on either side of the fence row.  How does that work? The ten foot right of access is for a situation where one neighbor hasn’t shared in the construction of the line fence.   If a landowner chooses to build a line fence and the adjoining neighbor doesn’t share in the construction of the fence.  Ohio Revised Code Section 971.08 allows the landowner to enter the neighbor’s property for up to ten feet for the length of the fence to build and maintain the fence.  A landowner who stays within that ten feet strip cannot be held guilty for trespassing, but can be liable for any damages caused on the neighbor’s property, including damages to crops.

A neighbor is spraying herbicides on the fence row where an adjoining neighbor is raising organic livestock.  Is there anything the livestock operator can do?  There could be a spray drift issue if the herbicides are coming over onto the organic producer’s property.  The most common legal action for dealing with spray drift is negligence, and another legal theory is trespass.  If the drift causes harm, there would be a legal claim under either of those theories and the sprayer could be liable for harm caused by the drift.  Before moving right to a lawsuit, however, a letter from an attorney that explains the potential liability for the drift could be helpful.  Losing the organic certification would be costly, and an attorney would likely point that out.  Those types of letters don’t take a lot of time and wouldn’t be as costly as filing a lawsuit.  Additionally, the sprayer’s insurance policy might address negligence for spray drift and could provide a mechanism for compensation to the livestock producer.

We are in the process of buying a farm property to raise horses and relocate a small craft brewery to the location and grow hops and barley for the brewery. Can you provide information to help navigate the legal issues in doing this?  Let’s start with two separate issues—the liquor licensing issue and the zoning issue.  You may already know that Ohio has a relatively new licensing law that eases the liquor license process for small brewers—the A-1c license, explained at https://www.com.ohio.gov/liqr/permitclasses.aspx.  That would allow you to brew and sell onsite if you meet the license requirements.

The zoning question is not as straightforward and instead is an “it depends” answer.  Ohio zoning law does specifically exempt wineries from local zoning regulation, if the winery is growing grapes.  There is not a similar specific exemption for breweries, though.   In some situations, the agricultural exemption from zoning authority applies and prevents the township from prohibiting an agricultural use if it meets the definition of “agriculture.”  Some of the activities you describe, growing hops and grains and raising horses, do fit within that definition.  Processing and marketing activities, like making and selling beer on-site, only fit within that definition if they are “secondary to” the growing/production activities.  Showing that the brewery would be a “secondary” use to the primary production activities could be difficult, and there aren’t clear standards on how to prove which is primary and which is secondary.  Some townships have examined amount of the property dedicated to the different uses, some have examined financial returns of the different uses, some have looked at amount of time… it’s a bit gray and open to interpretation. 

The other way to be exempt from zoning regulations would be to prove that the brewery is “agritourism.”  This requires first showing that the activity is a cultural, recreational, entertainment or historic activity that is “agriculturally related” to the property and that the property qualifies as a “working farm” that is engaged in commercial agricultural production.  Townships vary on how closely they examine these different components, but it seems that many are becoming more  strict about what is and is not “agriculturally related” to the property.  If none of the exemptions apply, whether you could engage in the land use would depend on your district zoning provisions.  You’d want the zoning district to allow a brewery activity as a permitted use in the zoning district, or to be able to seek a “conditional use” permit for it.

If someone has a hornet’s nest in the yard in a neighborhood with a sidewalk, is there concern if the hornets were to attack someone walking by?  This is one of those “maybe” answers.  We don’t have clear legal guidance or court cases on liability for stings in Ohio, and my guess is that’s because the cases may settle out in the insurance process.  The hornet nest, though, is probably a natural situation that is less likely to result in liability on the landowner’s part than a manmade condition, especially if the nest is out in the open and easily seen.  The law expects people to bear responsibility to protect themselves from open and obvious natural dangers.  However, the fact that the landowner knows it is there could be problematic given the neighborhood situation, as in “you should have done something about it because you knew people would be walking by,” especially if it’s not easy for passers-by to detect it or if the landowner knows someone in the neighborhood is allergic to bees.  To avoid the risk of potential harm or problems, the landowner could consider either putting up a sign warning about the nest or have it removed.  The cost of removal would probably be less than an injury claim or a lawsuit.  The landowner may also want to talk with her insurance agent to see if there would be coverage for an incident—likely not, but it’s worth an ask.  That might bring the landowner some peace of mind if he or she allows it to remain.

If you have an agricultural law question, send it to aglaw@osu.edu and we'll do our best to provide an answer.  We can't give you legal advice,of course, but we can explain the laws that apply to the situation.  Also be sure to check for answers in our law bulletins on the Ag Law Library, here on the Farm Office website.

 

By: Peggy Kirk Hall, Wednesday, September 19th, 2018

New changes to Ohio’s prohibited noxious weeds list took effect last Friday, September 14th.  In a previous blog post, we explained that the Ohio Department of Agriculture (ODA) was considering an update to the list as part of a mandatory five year review of all administrative rules.  ODA ultimately added 13 new species to the list, and removed 3 species.

Added to the list of prohibited noxious weeds are:

  • Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
  • Field bindweed (Convolvulus arvensis).
  • Heart-podded hoary cress (Lepidium draba sub. draba).
  • Hairy whitetop or ballcress (Lepidium appelianum).
  • Perennial sowthistle (Sonchus arvensis).
  • Russian knapweed (Acroptilon repens).
  • Leafy spurge (Euphorbia esula).
  • Hedge bindweed (Calystegia sepium).
  • Serrated tussock (Nassella trichotoma).
  • Columbus grass (Sorghum x almum).
  • Musk thistle (Carduus nutans).
  • Forage Kochia (Bassia prostrata).
  • Water Hemp (Amaranthus tuberculatus).

Removed from the list are:

  • Wild carrot (Queen Anne’s lace) (Daucus carota L.).
  • Oxeye daisy (Chrysanthermum leucanthemum var. pinnatifidum).
  • Wild mustard (Brassica kaber var. pinnatifida).

Still on the list are:

  • Shatter cane (Sorghum bicolor).
  • Russian thistle (Salsola Kali var. tenuifolia).
  • Johnsongrass (Sorghum halepense).
  • Wild parsnip (Pastinaca sativa).
  • Grapevines: when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
  • Canada thistle (Cirsium arvense).
  • Poison hemlock (Conium maculatum).
  • Cressleaf groundsel (Senecio glabellus).
  • Musk thistle (Carduus nutans).
  • Purple loosestrife (Lythrum salicaria).
  • Mile-A-Minute Weed (Polygonum perfoliatum).
  • Giant Hogweed (Heracleum mantegazzianum).
  • Apple of Peru (Nicandra physalodes).
  • Marestail (Conyza canadensis).
  • Kochia (Bassia scoparia).
  • Palmer amaranth (Amaranthus palmeri).
  • Kudzu (Pueraria montana var. lobata).
  • Japanese knotweed (Polygonum cuspidatum).

The revised list can be found online at Ohio Administrative Code § 901:5-37-01.  Readers may recall that the Farm Office’s Ag Law Library has a law bulletin on Ohio’s Noxious Weed Laws.  It has been updated to reflect the changes, and is available here.

Posted In: Property
Tags: noxious weed law, Ohio noxious weeds
Comments: 0
By: Peggy Kirk Hall, Wednesday, April 11th, 2018

Wild carrot, Oxeye daisy, and wild mustard will no longer be prohibited noxious weeds in Ohio if the Ohio Department of Agriculture’s (ODA) revisions to the noxious weeds list become effective. ODA is proposing to remove the three plants after its five year review of plant species considered “noxious” for purposes of Ohio law. The agency is also proposing adding these 12 species to the noxious weeds list:

  • Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
  • Field bindweed (Convolvulus arvensis)
  • Heart-podded hoary cress (Lepidium draba sub. draba). Hairy whitetop or ballcress (Lepidium appelianum)
  • Perennial sowthistle (Sonchus arvensis)
  • Russian knapweed (Acroptilon repens)
  • Leafy spurge (Euphorbia esula)
  • Hedge bindweed (Calystegia sepium)
  • Serrated tussock (Nassella trichotoma)
  • Columbus grass (Sorghum x almum)
  • Musk thistle (Carduus nutans)
  • Forage Kochia (Bassia prostrata)
  • Water Hemp (Amaranthus tuberculatus)

The director of ODA has the legal authority to designate noxious weeds. Several Ohio laws provide for control and removal of designated noxious weeds along public highways, toll roads, and railroads, and on private property.  The current noxious weeds list also contains the following plants, which will remain on the list:

  • Grapevines: (Vitis spp.), when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
  • Canada thistle (Cirsium arvense L. (Scop.))
  • Poison hemlock (Conium maculatum)
  • Cressleaf groundsel (Senecio glabellus)
  • Musk thistle (Carduus nutans)
  • Purple loosestrife (Lythrum salicaria)
  • Mile-A-Minute Weed (Polygonum perfoliatum)
  • Giant Hogweed (Heracleum mantegazzianum).
  • Apple of Peru (Nicandra physalodes)
  • Marestail (Conyza canadensis)
  • Kochia (Bassia scoparia)
  • Palmer amaranth (Amaranthus palmeri)
  • Kudzu (Pueraria montana var. lobata)
  • Japanese knotweed (Polygonum cuspidatum)

ODA is requesting public comments on the revised list of noxious weeds through April 27, 2018.  E-mail comments to ecomments@agri.ohio.gov or mail them to Legal Section, Ohio Department of Agriculture, 8995 E. Main St., Reynoldsburg, Ohio 43068.  Learn more about noxious weed laws in our bulletin, here.

By: Peggy Kirk Hall, Monday, July 17th, 2017

Noxious weed law questions are common in the midst of the growing season and this year is no different.  Below is a sampling of frequently asked questions we've received about noxious weed law.  Learn more about the laws in our new law bulletin, Ohio's Noxious Weed Laws, available here.

My neighbor doesn’t keep his fence row clear of noxious weeds.  What can I do about it?
First, talk to the neighbor.  If your neighbor doesn’t respond favorably, the second step is to provide a written notice to the neighbor stating that he has ten days to clear the fence row of the noxious weeds.  Third, if the neighbor still doesn’t take action, provide a written notice of the situation to the township trustees, which will initiate a process that could result in the trustees determining that there is a valid need to clear the fence row and hiring some to do the work.  Your neighbor will be legally obligated to pay for the costs on his property tax bill.

I’ve been notified by my township trustees that I have noxious weeds on my property.  What should I do?
Be aware that you must respond within five days of the date the trustees notified you about the weeds or the trustees will have the authority to destroy.  Your options are to destroy or cut the weeds or to provide information to the township trustees showing that there is no need to take action.  For example, such information might include showing that noxious weeds don’t exist on the property or showing that plants were incorrectly identified as noxious weeds.

Do I have to destroy my crop if noxious weeds are on my land?
No, Ohio law states that you must only “cut or destroy the weeds” if you have been notified by the township trustees that noxious weeds are on your property.  

Noxious weeds are growing in the road right-of-way. Can I remove them myself and charge the township for my costs? 
You may remove the noxious weeds, but you will probably not receive reimbursement for your costs unless the township trustees violated their duty to cut the weeds even after you followed the proper legal process for demanding their action.  Ohio law requires the township trustees to cut road right-of-way weeds in early June and August, in early September if necessary, and at other times if public safety is at issue.  If they fail to do so, you should formally complain to the township trustees in writing or by speaking at a township meeting.  If the trustees still fail to take action, the next step is to file a “writ of mandamus” action that asks the court to order the clearing.  Seeking reimbursement for your work prior to following this legal process is not the proper method for enforcing the township’s duty, according to the Second District Court of Appeals in Mezger v. Horton, 2013 Ohio 2964. 

How do I know which weeds are “noxious”?
The director of the Ohio Department of Agriculture conducts rulemaking to designate a plant as a prohibited noxious weed.  The list of plants that the director has formally designated as noxious weeds is in the Ohio Administrative Code and is available at http://codes.ohio.gov/oac/901:5-37-01

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