Recent Blog Posts

Ohio Revised Code eminent domain chapter
By: Peggy Kirk Hall, Tuesday, July 18th, 2023

When a landowner legally challenges an agency’s use of eminent domain to appropriate property, Ohio law requires a trial court to hold a hearing to determine the agency’s right to make the appropriation, according to a recent decision by the Ohio Supreme Court.  The Court held that an appeal to a higher court is not permissible until the trial court holds such a hearing and rules on the issues raised in the hearing.  For landowner Diane Less, the ruling means the trial court--the Mahoning County Court of Common Pleas--must hold a hearing to determine whether Mill Creek MetroParks had the right to make the appropriation of her land and whether that appropriation is necessary.

The case is one of several lawsuits and long-running controversies over Mill Creek MetroPark’s use of eminent domain to appropriate land for a bike path.  The Mahoning County disputes are one reason behind a current legislative proposal to revise Ohio’s eminent domain laws, which includes a prohibition against the use of eminent domain for recreational trails. The legislation is at a standstill, however, with many opponents lining up against the recreational trails and other provisions of the bill.

Basis for the decision

The current Mill Creek MetroParks v. Less case made its way to the Ohio Supreme Court after the Seventh District Court of Appeals reversed the Mahoning County court’s summary judgment decision that MetroParks was authorized to use eminent domain to take Less’ land.  MetroParks appealed that decision to the Ohio Supreme Court.  But rather than addressing the issue of authority to take the land, the high court focused on the procedures outlined in Chapter 163 of the Ohio Revised Code.  The statutes “provide a uniform eminent domain procedure for all appropriations sought by public and private agencies,” including procedures for when a property owner contests an appropriation.  The Court reviewed the statutory requirements in ORC 163.09, which require a trial court to hold a hearing when:

  1. A property owner files an answer to a petition for eminent domain that specifically denies the right to make the appropriation or the necessity for the appropriation,
  2. The answer alleges sufficient facts in support of the denial, and
  3. The appropriation is not sought in a time of war or other public exigency or not for the purpose of making or repairing roads.

When MetroParks filed the eminent domain action against Less, she did file an answer that denied the Park District’s right to make the appropriation and the necessity for the appropriation.   Less also filed a motion for summary judgment, asking the court to rule in her favor and dismiss the case because there were no genuine issues of material fact in the case.  The trial court denied her motion, however, and Less filed an appeal of that denial to the Seventh District Court of Appeals.  The Supreme Court points out that the appeal should not have occurred, however, because the statutory procedures required the trial court to hold a hearing after it denied the summary judgment motion by Less.  Nevertheless, the Seventh District ruled on the appeal, reaching a decision that agreed with Less’ argument that the Park District did not have authority to take her land.

The Supreme Court accepted the case for review, but its purpose was not to rule on the issue of whether there was authority for the use of eminent domain.  Instead, the Court held that it had no jurisdiction to hear MetroPark’s appeal of the Seventh District’s decision, and that the Seventh District Appeals Court did not have jurisdiction to review the decision of the trial court.  Because the trial court had failed to follow the statutory procedures for a hearing and decision on the authority and necessity of the appropriation, there was no “final appealable order” that either party could appeal to a higher court. 

What happens next?

The Supreme Court vacated the decision of the Seventh District Court of Appeals and sent the case back down to the Mahoning County Court of Common Pleas.   The county court must now hold a hearing to review the landowner’s arguments on the authority and necessity for the park’s appropriation.  The court’s decision after that hearing will be an order that either party may choose to appeal to the Seventh District.  The best answer to the question of what happens next, most likely, is that case will continue to roll on for quite some time.

Read the Supreme Court’s Decision in Mill Creek MetroParks v. Less.

By: Robert Moore, Thursday, July 13th, 2023

Legal Groundwork

You may have seen the news story this week about Aretha Franklin’s will.  Aretha, the famous singer, died in 2018.  A will executed in 2010 was originally thought to be her last will and the document that controlled the distribution of her assets to her heirs.  The 2010 will appears to have been a formal will, prepared by an attorney, and properly executed by Franklin.  However, a 2014 handwritten will was later found in a notebook in Franklin’s couch.  Some of the heirs of Franklin’s estate disputed the validity of the 2014 will.  The 2010 left Franklin’s home to three sons while the 2014 will left her home to only two sons.  The issue was recently resolved by a Michigan jury.  The primary issue was: can a handwritten will be a valid will?

The answer in most states, including Ohio and Michigan, is yes.  Known as a holographic will, a person can write their own will and the will can be valid provided it is signed and witnessed by two adults.  Generally, the holographic will must be in the person’s handwriting to confirm that they did, in fact, write the will themselves.  So, even a will written by hand on notebook paper found in someone’s couch, like Aretha’s will, can be valid.  Presumably, two witnesses were present when Franklin signed the handwritten deed.  A few lessons can be learned from Aretha Franklin’s situation:

  • Revoke the prior will.  When executing or updating estate planning documents, the new or updated documents should clearly revoke the prior relevant documents.  If Aretha’s 2014 will would have expressly revoked her 2010 will, the matter may not have gone to court because her intent to use her 2014 will would have been much clearer.
  • Every requirement of a will matters.  If Aretha’s will would not have been signed, it would not have been valid.  The law vigorously enforces the technical requirements of estate planning documents.  An unsigned will is typically not enforceable even if it is clear the person intended to use the will but did not sign it in error.  Aretha’s will met all the requirements of a holographic will in Michigan and was deemed valid.
  • Secure your estate planning documents in a safe location and make sure someone knows where they are.  Whether a desk drawer, safe or filing cabinet, your estate planning documents should be held in a protected location and the executor and/or heirs should be aware of the location of the document for easy access.  Also, the law firm drafting the documents usually retains a copy in their files.
  • Put a “No Contest” clause in your will.  A No Contest clause disinherits any heirs who challenge the validity of a will.  If Aretha’s 2014 will had included a No Contest clause, the son disputing the will may have not initiated the lawsuit in fear of losing his inheritance in her valuable song royalty rights.
  • Every change in an estate planning document should be a formal change.  Scratching out a line on a will or adding a provision by hand will likely not be effective.  If a change needs to be made to a document, a formal amendment should be drafted and executed or the document should be changed and re-executed.
  • Casual execution of documents can cause conflict among heirs.  Because Aretha took a more casual approach to her 2014 will, heir heirs ended up in a lawsuit and family relations are likely strained.  Have an attorney assist with your documents so that formalities are followed and conflicts among heirs are minimized.
  • Take the time to visit with an attorney for your documents.  No one likes spending money on legal fees but a modicum of legal fees preparing estate planning documents can save heirs many thousands of dollars in litigation fees.
By: Peggy Kirk Hall, Tuesday, July 11th, 2023

[This is a corrected version of our earlier post, which had the Urban Farmer Youth Initiative Pilot Program in the wrong place in the blog.  That Pilot Program was approved in the budget bill and was not vetoed by the Governor--apologies!]

While Ohio’s “budget bill” is important for  funding our agencies and programs, it always contain many provisions that aren’t at all related to the state’s budget.  The budget bill provides an opportunity for legislators to throw in interests of all sorts, which tends to add challenges to reaching consensus.  Though many worried about having the current budget approved in time, Ohio lawmakers did pass the two-year budget bill,  H.B. 33, just ahead of its deadline on June 30. 

We’ve been digging through the bill’s 6,000+ pages of budget and non-budget provisions and the Governor’s 44-item veto.  Some of the provisions are proposals we’ve seen in other legislation that made their way into the budget bill.  Not included in the final package were Senate-approved changes to the Current Agricultural Use Valuation law that would have adjusted reappraisals in 2023, 2024, and 2025.  Here’s a summary of items we found of relevance to Ohio agriculture, not including the agency funding allocations.  We also summarize three vetoes by the Governor that pulled items from the budget bill.

Township zoning referenda – ORC 519.12 and 519.25

There is now a higher requirement for the number of signatures needed on a petition to subject a township zoning amendment to referendum by placing it on the ballot for a public vote.  The bill increased the number of signatures from 8% to 15% of the total vote cast in the township for all candidates for governor in the most recent general election for governor.

Legume inoculators – ORC 907.27 and 907.32

The bill eliminated Ohio’s annual Legume Inoculator’s License requirement for businesses and individuals that apply inoculants to seed. All other requirements for legume inoculants remain unchanged.

Agricultural commodity handlers--Grain Indemnity Fund – ORC 926.18

Ohio’s agricultural commodity handlers law provides reimbursement to a grain depositor if there is a bankruptcy or failure of the grain elevator.  The bill revises several parts of the law that provide a depositor with 100% coverage of a grain deposit when there’s a failure:

  • If a commodity handler’s license is suspended and the handler failed to pay for the commodities by the date suspension occurred, the new law increases the number of days by which the commodities had to be priced prior to the suspension-- from 30 to 45 days.
  • If a commodity handler’s license is suspended and there is a deferred payment agreement between the depositor and the handler, the new law:
  1. Requires that the deferred payment agreement must be signed by both parties.
  2. Increases the number of days by which the commodities had to be priced prior to the suspension -- from 90 to 365 days; and
  3. Increases the number of days by which payment for the commodity must be made pursuant to the deferred payment agreement  -- from 90 days to 365 days following the date of delivery.
  • Requiring 100% coverage when commodities were delivered and marketed under a delayed price agreement up to two years prior to a handler’s license suspension. The delivery date marked on the receipt tickets determine the two-year period. The bill also states that the Grain Indemnity Fund has no liability if the delayed price agreement was entered into more than two years prior to the commodity handler’s license suspension.

Two circumstances for 100% of loss coverage from the Grain Indemnity Fund remain unchanged by the bill:  when the commodities were stored under a bailment agreement and when payment was tendered but subsequently denied.  For all other losses, the new law will reduce the fund payment to 75% of the loss.  Current law covers 100% of the first $10,000 of the loss and 80% of the remaining dollar value of that loss.

Office of the Migrant Agricultural Ombudsperson – ORC 3733

Current law establishes an Office of the Migrant Agricultural Ombudsperson under the authority of the Ohio Department of Jobs and Family Services (ODJFS), but the new law eliminates the Ombudsperson.  Instead, a currently existing State Monitor Advocate in ODJFS will be responsible for migrant issues and needs, such as collecting and reviewing data on living and working conditions, receiving complaints and alleged violations, conducting on-site reviews, monitoring the provisions of employment services, and connecting job seekers to employers through the Agricultural Recruitment System.

Commercial driver’s license waiver for farm-related service industries – ORC 4506.24

The bill increases the validity period for the CDL waiver for farm-related service industries.  Current law limits the total number of days a person may operate under the farm-related service industries waiver to 180, and the bill extends that period to 210 days per calendar year. The bill also allows online renewal of CDL licenses, revises several requirements for third-party CDL skills test examiners, and establishes several prohibitions and penalties for fraudulent acts related to CDL testing.

Income tax – ORC 5747.02

The law includes changes to Ohio’s income tax tables.  For the 2023 taxable year, the bill combines the two lowest tax brackets into one and reduces the marginal tax rates.  For tax year 2024, the bill further combines tax brackets and reduces the highest tax rate.  The Legislative Service Commission provides this chart that summarizes the changes:

Budget income tax changes

Drainage assessment fund – ORC 6133.15

A designated fund for holding funding from the legislature to cover the state’s share of any assessments for drainage improvement projects will be abolished.  The change removes only the fund and does not remove the duty of the state to pay its share of any drainage improvement assessments.

Urban Farmer Youth Initiative Pilot Program

A new Urban Farmer Youth Initiative Pilot Program will provide relevant programming and support on farming and agriculture to youth living in urban areas. The bill directs the Chancellor of Higher Education to collaborate with Ohio State University Extension and Central State University Extension to offer programming in two to four Ohio counties and to partner with local entities.  Funds may also be used to expand programming to urban youth by existing agricultural organizations.

Vetoes by Governor DeWine

The Governor vetoed the following three ag-related items and offered explanations of his reasoning for the vetoes.

Save our Farmland and Protect our National Security Act

The Governor removed a provision that required the Secretary of State to compile a registry of individuals, business, organizations, and governments that constitute a threat to the agricultural production or military defense of Ohio or the U.S. and prohibited anyone on the registry from acquiring agricultural land or acquiring real property located within 25 miles of a military base or land under the jurisdiction of the armed forces. The Act also required property acquired in violation of the bill to escheat to the state, to be sold at public auction.  The Governor stated that while “restricting ownership of Ohio farmland protects Ohio’s rich agricultural tradition from adverse interests,” the bill could create unintended economic development consequences by including other non-agricultural property in the foreign ownership restriction.

Auctioneer laws

Governor DeWine vetoed several revisions to Ohio auctioneer law, stating that the revisions removed consumer protections recently enacted in HB 321, which went into effect in 2022.  The primary purpose of the revisions was to further exempt internet auctions, including auctions that involve sales of real or personal property through an auction mediation company platform. 

Commercial Activity Tax exclusions

The budget bill would have increased the $150,000 threshold for filers subject to the Commercial Activity Tax (CAT) to $3 million in 2024 and $6 million in 2025.  The Governor pointed out that the language in the bill was unclear, stating that “a technical veto is needed to clarify that the stated excluded amounts represent yearly tax periods,” and also noted that the veto would close an unintended potential loophole, open to exploitation through tax planning.

Visit this page on the Ohio General Assembly’s website for more information on the budget bill, HB 33.

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By: Peggy Kirk Hall, Friday, July 07th, 2023

It was a long time coming, but the Ohio EPA has presented a final Total Maximum Daily Load (TMDL) report for the Western Basin of Lake Erie to the U.S. EPA.  The agency submitted the “Maumee Watershed Nutrient TMDL ” report on June 30, 2023.  This was the exact deadline agreed to in the Consent Decree that settled litigation against the U.S. EPA and Ohio EPA over the lack of a TMDL for Lake Erie’s Western Basin. 

What is a TMDL?

A TMDL provides a framework for future decisions that affect water quality in waters designated as “impaired waters” that fail to meet water quality standards.  The Ohio EPA declared Western Lake Erie waters as “impaired” in 2018, and the TMDL is the plan for addressing shoreline and open water impairments in the basin.  According to the Ohio EPA, the TMDL report “identifies the links between the waterbody use impairment, sources of impairment, and the pollutant load reductions needed to meet water quality standards.”

How will it affect Ohio agriculture?

A major source of the impairment in the Lake Erie Western Basin is cyanobacterial harmful algal blooms caused by high phosphorus loads.  The report identifies many sources of phosphorus that contribute to the impairment, with the largest component being “nonpoint” sources that include row crop commercial fertilizers and manures.  “Point” sources of phosphorous sources include water treatment facilities; stormwater discharges; and home sewage treatment systems.  The TMDL calls for phosphorus load reductions in the Maumee watershed to remedy the lake’s impairment.  Agriculture would be affected by increased emphasis on management practices for agricultural fertilizers, manures, soils, and drainage. 

How does the TMDL address phosphorus reductions?

The TMDL embraces an “adaptive management” approach that involves developing strategies, establishing milestones, implementing strategies, monitoring environmental responses, evaluating progress, and adjusting strategies.  For row crops, the report focuses on management practices such as soil testing and developing a nutrient management plan.  It proposes other agricultural phosphorous reductions from soil erosion management, increasing cropping diversity through rotations and cover crops, reductions of phosphorus applications, edge-of-field management, two-stage ditch designs, and controlled drainage. The report points out that many of the proposed actions have already been underway on farms in the watershed for over a decade, and monitoring, evaluations, and adjustment strategies will continue the progress made to-date. Figure 50 in the report, below, highlights phosphorous reduction strategies.

What happens next?

The U.S. EPA now must review the TMDL and decide whether to approve or disapprove the report.  It has up to 90 days to do so, according to the Consent Decree.  If the U.S. EPA does not approve the TMDL report, it must then prepare a TMDL for the Western Basin. 

How to learn more

Read the Maumee Watershed Nutrient TMDL on the Ohio EPA website, which also includes a fact sheet, appendices, and a summary of responses to public comments on the draft TMDL.

Baby chick in a laboratory flask.
By: Jeffrey K. Lewis, Esq., Friday, June 30th, 2023

Happy last day of June! We close out the month with another Ag Law Harvest, which brings you two interesting court cases, one about an Ohio man asserting his right to give away free gravel, and another which could decide the constitutionality of “Ag-Gag” laws once and for all. We also provide a few federal policy updates and announcements. 

Ohio Department of Agriculture Prohibited from Fining a Landowner for Charging to Load Free Gravel.  In May of 2020, Paul Gross began selling gravel and topsoil (collectively “gravel”) that he had accumulated from excavating a pond on his property. Gross charged $5 per ton of gravel, which was weighed at a scale three miles from his property. After receiving a complaint of the gravel sales, the Madison County Auditor sent a Weights and Measures Inspector to investigate Gross’s gravel sales. The Inspector informed Gross that the gravel sales violated Ohio Administrative Code 901:6-7-03(BB) (the “Rule”) because the gravel was not being weighed at the loading site. Under the Rule, “[s]and, rock, gravel, stone, paving stone, and similar materials kept, offered, or exposed for sale in bulk must be sold . . . by cubic meter or cubic yard or by weight.” As explained by the Inspector, Gross’s problem was that he was selling gravel by inaccurate weight measurements because the trucks hauling the gravel lose fuel weight when traveling the three miles to the scale. 

Instead of installing scales on his property, Gross decided to start giving away the gravel for free. However, Gross did charge a flat rate fee of $50 to any customer that requested Gross’s help in loading the gravel. According to Gross, this $50 fee was to cover the cost of his equipment, employees, and other resources used to help customers load the gravel. Unsatisfied with the structure of this transaction, the Ohio Department of Agriculture (“ODA”) decided to investigate further and eventually determined that even though Gross was giving away the gravel for free, the flat fee for Gross’s services represented a commercial sale of the gravel and, therefore, Gross was in continued violation of the Rule. 

For the alleged violation, the ODA intended to impose a $500 civil penalty on Gross, who requested an administrative hearing. The hearing officer recommended imposing the penalty and the Franklin County Court of Common Pleas agreed. Gross appealed the decision to the Tenth District Court of Appeals, which found that Gross was not in violation of the Rule

The Tenth District reasoned that customers were paying for the service of moving the gravel, not for the gravel itself. The court explained that the purpose of the Rule is to protect consumers by ensuring transparent pricing of materials like gravel. Since Gross was not in the business of selling gravel and the transaction was primarily for services, the court concluded that the ODA’s fine was impermissible. 

North Carolina Asks U.S. Supreme Court to Review “Ag-Gag Law.”  In 2015, the North Carolina Legislature passed the North Carolina Property Protection Act, allowing employers to sue any employee who “without authorization records images or sound occurring within” nonpublic areas of the employer’s property “and uses the recording to breach the [employee’s] duty of loyalty to the employer.” After the act’s passage several food-safety and animal-welfare groups, including the People for the Ethical Treatment of Animals (“PETA”), challenged the Property Protection Act in an effort to prevent North Carolina from enforcing the law. 

A federal district court in North Carolina struck down the law, finding it to be a content-based restriction on speech in violation of the First Amendment of the United States Constitution. The 4th Circuit Court of Appeals upheld the district court’s ruling also reasoning that the law’s broad prohibitions restrict speech in a manner inconsistent with the First Amendment. Now, the North Carolina Attorney General, Josh Stein, has petitioned the Supreme Court of the United States (“SCOTUS”), asking the Court to reverse the 4th Circuit’s decision. If SCOTUS decides to hear the case, the justices will be tasked with determining “[w]hether the First Amendment prohibits applying state tort law against double-agent employees who gather information, including by secretly recording, in the nonpublic areas of an employer’s property and who use that information to breach their duty of loyalty to the employer.” 

We have reported on several Ag-Gag laws and the court challenges that have followed. If SCOTUS decides to take up the case, we may finally have a definitive answer as to whether Ag-Gag laws are constitutional or not. 

Lab-grown Chicken Given the Green Light by the USDA. The United States Department of Agriculture’s (“USDA”) Food Safety and Inspection Service granted its first approvals to produce and sell lab-grown chicken to consumers. Upside Foods and Good Meat, the two entities given the green light by the USDA, plan on initially providing their “cell-cultivated” or “cultured” chicken to patrons of restaurants in the San Francisco and Washington D.C. areas. However, the timeline for such products showing up in your local grocery store has yet to be determined.  

USDA Suspends Livestock Risk Protection 60-Day Ownership Requirement. The USDA’s Risk Management Agency issued a bulletin suspending the 60-day ownership requirement for the Livestock Risk Protection (“LRP”) program. Normally under the LRP, covered livestock must be owned by the producer within the last 60 days of the specified coverage endorsement period for coverage to apply. According to the bulletin, “[d]ue to the continuing severe drought conditions impacting many parts of the nation, producers are struggling to find adequate supplies of feed or forage, causing them to market their livestock sooner than anticipated.” In response, the USDA is allowing producers to apply to waive the 60-day ownership requirement, subject to verification of proof of ownership of the livestock. The USDA hopes this waiver will allow producers to market their livestock as necessary while dealing with the current drought effects. Producers will be able to apply for the waiver until December 31, 2024. 

USDA Announces Tool to Help Small Businesses and Individuals Identify Contracting Opportunities. Earlier this month, the USDA announced a new tool “to assist industry and small disadvantaged entities in identifying potential opportunities for selling their products and services to USDA.” USDA’s Procurement Forecast tool lists potential contracting or subcontracting opportunities with the USDA. Until now, businesses could only access procurement opportunities through the federal-wide System for Award Management (“SAM”). The USDA hopes the Procurement Forecast tool will provide greater transparency and maximize opportunity for small and underserved businesses. 

 

By: Peggy Kirk Hall, Tuesday, June 27th, 2023

We'd like to hear from farmers!  If you're a farmer, please consider completing our "Farm Legal Needs Survey."

What do we want to know? Our survey asks you to tell us a little bit about your farming operation and:

  • What legal issues you've encountered in your operation
  • Your most challenging legal issues
  • Farm management information needs
  • How and where you prefer to receive legal and farm management information

Why are we asking these questions?  While the Farm Office team is engaged in farm management and agricultural law everyday, we want to make sure we're not missing anything!   Hearing from farmers across Ohio will help us identify emerging issues, additional resources needed, and how to ensure our information is getting out to the farm community. 

How long will it take?  Only 5 or 10 minutes.

Is participation anonymous?  Yes.  We don't ask you to identify yourself or your operation.

Where is the survey?  Access the survey through this link or the QR code below.

Questions?  Please contact Peggy Hall at aglaw@osu.edu with any questions about the survey. 

Thank you for helping us help you with your legal and farm management needs!

 

 

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Tags: legal needs survey, survey, legal issues, farm management
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By: Robert Moore, Friday, June 23rd, 2023

Legal Groundwork

A situation that can arise between landowners and tenants is the ownership of a crop upon the termination of a lease or transfer of the property.  Like most legal questions, the answer depends upon the specifics of the situation.  Sometimes, crops are part of the land and sometimes the crop is personal property and not part of the land.  The following is a discussion of these different scenarios.

The most common scenario, and the most common type of lease, is for annual crops such as corn and soybeans.  Annual crops are generally personal property and not part of the land.  If a landowner transfers the land midway through a lease, the tenant will retain ownership of the crops and will have an opportunity to harvest the crops.

Wheat is a unique situation in that it is a carryover crop, planted in the fall and harvested in summer.  The wheat will generally be personal property and owned by the tenant with one exception.  If the wheat was planted by the tenant before a lease for the following year was established, a court may determine that the tenant planted the wheat at their own risk.  Wheat should not be planted unless a lease for the following year is in effect.

Situations relating to perennial crops such as hay largely depend on timing.  If the land is transferred shortly after the crop is established, the tenant may be able to continue harvesting the crop or more likely the landowner will be liable to the tenant for the cost of establishing the crop and possibly lost profits.  If the land is transferred several years after the crop is established, the tenant may not have any claims to the crop.  A court will largely look to the intentions of the landlord and tenant in rendering its opinion on the tenant’s rights.

All of the above scenarios can be avoided by a good, written lease.  The lease should address the tenant’s rights to the crop in the event the land is transferred during the term of the lease.  The landowner and tenant can agree to address the rights of the tenant, in the event the land is transferred, in any way they wish.  For tenants and landowners in current leases, the lease should be reviewed to see how tenant’s rights are addressed in the event of a transfer of the land.  For situations where there is no written lease or for new leases, be sure to include a provision to address the tenant’s rights to the crop.

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Statehouse lawn with row of Ohio flags
By: Peggy Kirk Hall, Thursday, June 22nd, 2023

Despite the arrival of summer and continuing disagreements over the state budget, Ohio legislators have been working on several pieces of legislation relevant to Ohio agriculture.  All of the proposals are at the committee level but may see action before the Senate and House after the budget bill process ends. Here’s a summary of the ag related proposals currently under consideration.

Senate Bill 111 – Urban Agriculture

Senator Paula Hicks-Hudson (D-Toledo) targets barriers for farmers in urban settings in SB 111, which has had three hearings before the Senate Agriculture and Natural Resources Committee. OSU Extension, the Ohio Municipal League, and several farmers have testified in support of the  proposal, which contains three components:

  • Establishes an Urban Farmer Youth Initiative Pilot Program to provide youth between the ages of six and eighteen living in urban areas with programming and support for farming and agriculture.  The bill would appropriate $250,000 over 2024 and 2025 for the pilot, to be administered by OSU Extension and Central State Extension.
  • Exempts temporary greenhouses, such as hoop houses, from the Ohio Building Code, consistent with Ohio law’s treatment of other agricultural buildings and structures. 
  • Codifies the Department of Taxation’s current treatment of separate smaller parcels of agricultural land under the same farming operation, which allows the acreages to be combined to meet the 10 acre eligibility requirement for Current Agricultural Use Valuation.

House Bill 64 – Eminent Domain

A proposal to make Ohio’s eminent domain laws more favorable to landowners remains on hold in the House Civil Justice Committee.  HB 64 is receiving more opposition than support, with dozens of parties testifying against it in its fourth hearing on May 23.  Read more about the proposal in our previous blog post.

House Bill 162 - Agriculture Appreciation Act

Rep. Roy Klopfenstein (R-Haviland) and Rep. Darrell Kick (R-Loudonville) introduced HB 162 on May 1 and the bill received quick and unanimous approval from the House Agriculture Committee on May 16.  The proposal would make several designations under Ohio law already recognized by federal law:

  • March 21 as "Agriculture Day."
  • October 12 as "Farmer's Day."
  • The week beginning on the Saturday before the last Saturday of February as "FFA Week."
  • The week ending with the second Saturday of March as "4-H Week."

House Bill 166 – Temporary Agricultural Workers

A bill addressing municipal income taxes for H2-A agricultural workers has met opposition in the House Ways and Means Committee.  HB 166, sponsored by Rep. Dick Stein (R-Norwalk) would subject foreign agricultural workers’ income to municipal income taxes.  The current municipal tax base in Ohio is based on federal tax laws that exclude foreign agricultural worker pay from Social Security and Medicare taxes since the workers cannot use those programs, and HB 166 would remove that exclusion and add H2-A income to the municipal tax base.  The bill would also require employers to withhold the taxes for the municipality of the workers’ residences. While municipal interests support the bill, Ohio Farm Bureau and other agricultural interests testified against it in its third hearing on June 13. Opponents argue that H2-A workers are not residents because they are “temporary,” that the proposal would have many potential adverse effects on how Ohio handles the H2-A program, and would hamper the ability of agricultural employers to use the H2-A program to hire employees.

House Bill 193 – Biosolid and biodigestion facilities  

Biosolid lagoons and biodigestion facilities would have new legal requirements and be subject to local regulation under a proposal sponsored by Rep. Kevin Miller (R-Newark) and Rep. Brian Lampton (R-Beavercreek).  HB 193 would grant county and township zoning authority over the lagoons and facilities, require a public meeting and county approval prior to seeking a facility permit from the Ohio EPA, require the Ohio EPA to develop rules requiring covers on new biosolid lagoons, and modify feedstock requirements for biodigestion facilities to qualify for Current Agricultural Use Valuation property tax assessment.  HB 193 had its first hearing before the House Agriculture Committee on June 13.

House Bill 197 – Community Solar Development   

A “community solar” proposal that did not make it through the last legislative session is back in a revised form.  HB 197 proposes to define and encourage the development of “community solar facilities,” smaller scale solar facilities that are directly connected to an electric distribution utility’s distribution system and that create electricity only for at least three “subscribers.”  The bill would establish incentives for placing such facilities on distressed sites and Appalachian region sites through a “Community Solar Pilot Program” and a “Solar Development Program.” Rep. James Hoops (R-Napoleon) and Sharon Ray (R-Wadsworth) introduced the bill on June 6, and it received its first hearing before the House Public Utilities Committee on June 21. “The goal of this legislation is to create a small-scale solar program that seeks to be a part of the solution to Ohio’s energy generation and aging infrastructure need,” stated sponsor Hoops.

House Bill 212 – Foreign ownership of property

Ohio joins a movement of states attempting to limit foreign ownership of property with the introduction of HB 212, the Ohio Property Protection Act.  Sponsored by Representatives Angela King (R-Celina) and Roy Klopfenstein (R-Haviland), the proposal would prohibit foreign adversaries and certain businesses from owning real property in Ohio. The bill was introduced in the House on June 13 and has not yet been referred to a committee for review.

 

First page of House Bill 64
By: Peggy Kirk Hall, Friday, June 16th, 2023

Eminent domain is one of those topics that always generates concern among farmland owners. That may be part of the reason behind an eminent domain bill sponsored by Representatives Darrell Kick (R-Loudonville) and Rodney Creech (R-W Alexandria), who introduced House Bill 64 in February.  According to the sponsors, the bill would “reform current eminent domain laws to provide landowners with more rights and support.” But HB 64 now faces significant resistance and uncertainty.

What HB 64 proposes

Ohio’s Legislative Service Commission summarizes the procedural changes HB 64 proposes as follows:

  • Voids appropriations (the taking of property through eminent domain) that do not follow statutorily mandated procedures.
  • Increases the taking agency’s (the government or private entity appropriating property) burden of proof in appropriation proceedings.
  • Narrows factual presumptions made in favor of taking agencies in appropriations
    proceedings.
  • Prohibits a taking agency from reducing any offer it makes in an effort to acquire
    property, if the attempts may result in appropriations proceedings, or subsequently arguing for a lower valuation in an appropriation proceeding.
  • Expands required attorney fee, cost, and expense awards due to property owners in appropriation actions.
  • Allows property owners who allege their property has been appropriated outside of the required judicial process to sue for inverse condemnation.
  • Requires courts hearing inverse condemnation cases to award successful property owners’ attorneys’ fees, costs, and expenses.
  • Requires court hearing appropriations cases to award property owner damages if the taking agency uses coercive actions.
  • Lengthens certain appropriation proceeding deadlines.

In addition to revising eminent domain procedures, HB 64 would also prohibit the use of eminent domain to obtain property for recreational trails and to maintain recreational trails—a controversial issue tracing back to the Mill Creek Metroparks bike trail project in Mahoning County.   

Committee hearings on HB 64

HB 64 has yet to pass out of the House Civil Justice Committee since being referred to the committee on February 28.  Three parties testified in favor of the bill a hearing on March 14—Ohio Farm Bureau, Ohio Dairy Producers, and Ohio Council of Retail Merchants.  The parties commended the additional protections given to landowners facing eminent domain proceedings and stated that the reforms in the bill would “prevent excess and unnecessary use of eminent domain.”  Committee members raised several questions about the proposal at that time, and the bill then stalled for two months. 

On May 16, the committee accepted a substitute bill that changed several provisions regarding recreational trails, compensation offers and awards, and relocation assistance—all questions raised in the earlier committee hearing.  Changes in the substitute bill include:

  • A limit the prohibition on using eminent domain for recreational trails, stating that eminent domain could not be used to take property if the primary use of the property would be for a recreational trail and the property is not adjacent to a public road and within a road right of way.
  • Restoration of an agency’s authority to reduce a compensation offer amount if it discovers conditions that it could not have discovered when it make the original compensation offer.
  • Revised amounts that would be awarded to a landowner if a jury’s award of compensation is higher than an agency’s most recent good faith offer and removes a percentage limit on mandatory cost and expense awards.

Despite the substitute bill revisions, 37 parties representing a wide variety of interests submitted opponent testimony at the fourth hearing for the bill on May 23. Local governments and associations such as the County Commissioners Association of Ohio, County Engineers Association of Ohio, Ohio Municipal League, and Ohio Mayors Alliance testified against the bill.  Business interests such as American Electric Power, Ohio Oil and Gas Association, and Ohio Chamber of Commerce also opposed the bill, as did transportation and recreational interests such as Central Ohio Transit Authority, Mid-Ohio Regional Planning Commission, Rails-to-Trails Conservancy, and Ohio Parks and Recreation Association. Several common themes appear in the opponent testimony: that Ohio’s current eminent domain laws are not “broken” but instead effectively balance landowner rights against public needs, that the bill would create negative financial and taxpayer impacts, and that it would hamper economic development and infrastructure and public works projects in Ohio.

What happens next with the eminent domain bill?

The strong resistance to HB 64 certainly signals problems for its adoption and highlights a need for agreement on whether Ohio’s eminent domain law effectively balances public needs and private property rights.  Even so, there are several routes the bill could take from this point:  the committee chair could schedule a committee vote on the bill, the sponsors could hold further “interested party” meetings with the intent to further revise the bill, a Senate sponsor could introduce a similar bill and try to move it through the Senate, or the bill could simply die an early death.

 Civil Justice Committee Chair Brett Hillyer (R-Uhrichsville) did not schedule the bill for a fifth hearing and potential vote for the committee meetings held on June 6 and June 13.  Several opponents encouraged additional “interested party” negotiations and further changes to the proposal.  Based on the resistance to the bill in its current form, if such discussions don’t take place or are not successful, the bill will likely die that early death or arise in a different form in the future.

Read more about and follow HB 64 on the Ohio Legislature’s website.

Posted In: Property
Tags: eminent domain, House Bill 64
Comments: 0
By: Robert Moore, Tuesday, June 13th, 2023

Legal Groundwork

The OSU Agricultural and Resource Law Program is teaming up with Iowa State University and the National Agricultural Law Center to present a conference for farm transition planners.  The conference will be in held in Des Moines on August 7-8 and will focus on issues and strategies common to farm transition planners.  While the conference is geared towards attorneys and accountants working with farm clients,  other professionals, such as lenders, appraisers, Extension personnel and consultants, will also find the conference useful .

Topics for the conference include:

  • Lay of the Land from Long-time Farm Transition Planners
  • Preserving the Family Farm in the Wake of Uncertainty
  • Buy Sell Agreements – Best Practices, Tips, and Traps, Tax and Valuation Considerations
  • Preparing Clients for the Transition Plan Experience
  • Navigating the On-Farm, Off-Farm Issue
  • Fair v. Equal Treatment of Heirs
  • Charitable Options for the Transition
  • Resources for the Rural Professional
  • Working with Clients Who Can't Work Together
  • Considering Long-Term Care Needs
  • Tax Mistakes to Avoid in the Transition
  • Real World Succession Planning Scenarios

For more information and to register, go to the conference registration site.  An online participation option is also available.  

In addition to providing educational sessions, another purpose of the conference is to create an association of farm transition professionals.  This group will hold educational programs and provide support for other professionals in the farm transition planning community.  The purpose of the organization is to increase the number of skilled professionals assisting farmers with the critical work of transition planning. The goal is to link conference participants with a network of colleagues for connection during the year through online meetings, webinars, newsletters, and other opportunities.

For more information or questions, contact Robert Moore (moore.301@osu.edu).

 

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