Solar zoning authority one of several gifts wrapped up in Ohio legislature’s final sessions

By:Peggy Kirk Hall, Associate Professor, Agricultural & Resource Law Tuesday, December 20th, 2022
Christmas ornament of Ohio capitol hanging on tree

A new law giving local governments zoning authority over small-scale solar facilities may feel like a gift to counties and townships dealing with solar development conflicts.  The late amendment was one of a few surprises from the legislature as it wrapped up its lame duck session last week. 

Several other pieces of legislation affecting agriculture and natural resources that passed include local preemption of pesticides, loosening oil and gas drilling reviews on state lands, and new knowledge requirements for environmental health specialists that inspect retail food establishments. Here’s a summary of the agricultural related bills that now await the Governor’s action.

Zoning authority over small scale solar -- H.B. 501

An amendment to a township bill will grant counties, townships, and municipalities regulatory authority overthe location, erection, construction, reconstruction, change, alteration, maintenance, removal, use, or enlargement of any small solar facility, whether publicly or privately owned, or the use of land for that purpose.” The bill defines a “small solar facility” as one that has a single interconnection point to the grid and is under 50 MW. That number is important, because it addresses solar facilities that were not subject to S.B. 52, passed last year, which gave counties and townships new authority over wind and solar facilities that are over 50 MW. 

Agriculture – H.B. 507

This bill began as a simple provision reducing the number of poultry chicks that can be sold in lots from six to three.  Before it passed, however, the Senate Agriculture & Natural Resources Committee added six amendments, including these:

  • Local preemption of pesticides

Prohibits a political subdivision from regulating or banning the packaging, registration, labeling, sale, storage, distribution, use, or application of a pesticide registered with ODA on private property.

  • Environmental health specialists and food safety regulations

Requires ODA and ODH to adopt new rules for evaluating Environmental Health Specialists’ knowledge of food safety laws and to include the evaluations when assessing a board of health’s ability to license retail food establishments and food service operations.  Also revises several food safety laws to align them with state and federal laws.

  • Green energy in competitive retail energy laws

Defines “green energy” to be any energy that releases reduced air pollutants and cumulative air emissions or is more sustainable and reliable relative to some fossil fuels or is generated using natural gas, but excludes natural gas energy from renewable energy credits, except for gas from biologically derived methane.

  • Internet sales exemption from auction laws

Exempts from auctioneer and auction firm licensure requirements a person who, in any
calendar year, sells not more than $10,000 of personal property via an auction
mediation company (for example, eBay) if the company provides fraud protection to the buyer; and the property is the person’s own personal property, or the property is the personal property of another (sold without compensation).

  • Oil and gas drilling on state land

Requires a state agency to lease agency-owned oil and gas resources “in good faith” until new rules for nominating the development of resources are adopted by the Oil and Gas Land Management Commission.  The leasing party must demonstrate insurance and financial assurance and register with ODNR.

  • Towing authorizations for conservancy districts

 Authorizes a conservancy district police department to order the towing and storage of
a motor vehicle when the vehicle is an abandoned junk vehicle and when left on private or public property for a specified time.

Tax amnesty and appropriations – H.B. 66

H.B. 66 sets up the possibility of a tax amnesty program in 2023 and allocates $6 billion in one-time appropriations of COVID relief funds. And Medicaid draw down funds.

  • Tax amnesty

Allows a two-month tax amnesty program in 2023 for delinquent state taxes, local sales and use taxes, income tax withholding and more, but only if additional revenues from amnesty will be needed to meet General Revenue Fund obligations.

  • Ag-related appropriations

$4.5 million to Ohio Department of Agriculture for grants to county agricultural societies.

$250 million to Ohio Dept. of Development for water quality grants program.

Millions to Ohio Department of Natural Resources for state and local parks, and improvement, recreation, and conservation projects.

What proposals didn’t pass?

Since we’re at the end of the two-year session of the 134th General Assembly, any proposed legislation that did not pass is now dead.  Some of those proposals will be reintroduced next session, but we might never see others again.  The two most notable ag-related bills that died include:

Many solar developers were hoping this bill would pass, as it provides incentives for smaller scale subscription-based solar projects and solar projects on brownfield sites.  Landowners considering leases with solar developers who stated they were doing community solar projects must note that, because the bill did not pass, there is currently no legal authority to construct a community solar project in Ohio.

This proposal would have streamlined the process for landowners challenging compensation for property taken by eminent domain, increased the burden of proof by an agency using eminent domain, and expanded attorney fee and expense rewards for property owners.  It would also prohibit takings of property for recreational trails, an issue that has plagued northeast Ohio.  Sponsors say they will reintroduce next session.

What packages will the new year bring?

We’ll be keeping an eye on the new General Assembly, which will likely include new committee members and leadership on both the House Agriculture and Conservation and Senate Agriculture and Natural Resources Committee.  Our quick wish list for next session starts with:

  • Revisions to the agricultural and agritourism exemptions in county and township zoning law.
  • Mowing date and procedural revisions to the noxious weeds law
  • Updates and clarifications to the partition fence law
  • Streamlining and clarification of home-based and farm-raised food licenses

Follow the Ohio legislature at https://www.legislature.ohio.gov/.