LIMA, Ohio — A Union County farm household is continuous to oppose development of a pure gasoline pipeline throughout their preserved farmland in a case earlier than Ohio’s Third District Courtroom of Appeals. In the meantime, administrative adjustments on the Ohio Division of Agriculture, in addition to proposed adjustments to Ohio’s eminent area legal guidelines, may have an effect on related instances sooner or later. 

On Nov. 22, the Third District Courtroom of Appeals heard oral arguments for 2 linked instances, Columbia Fuel of Ohio, Inc. v. Patrick E. Bailey, et al. and Columbia Fuel of Ohio, Inc. v. Don Bailey Jr., et al. These instances enchantment a Union County Frequent Pleas Courtroom ruling in April that dismissed Columbia Fuel’s request to make use of eminent area for pipeline development. 

The decrease courtroom dismissed Columbia Fuel’s eminent area petition citing inconsistencies within the language utilized in paperwork offered to the courtroom and people reviewed by the Ohio Energy Siting Board. A 25-foot easement labeled “non permanent” earlier than the siting board was listed as “perpetual” within the eminent area request to the courtroom. 

Appeals

Within the enchantment earlier than the district courtroom, the Bailey household is asking the courtroom to uphold the decrease courtroom’s dismissal of the eminent area request, based mostly on the inconsistent perpetual/non permanent easement descriptions. 

The appeals courtroom has already dominated on a case involving a neighboring farm, Columbia Fuel of Ohio, Inc. v. Phelps Most popular Investments, LLC. The Phelps case concerned the identical inconsistent easement descriptions. In July, the appeals courtroom upheld the decrease courtroom’s dismissal of the eminent area request. 

The Phelps case is totally different from the Baileys’, nevertheless, as a result of the Phelps farmland will not be protected by an ag easement. The Baileys need the appeals courtroom to go a step additional of their instances to think about the ag easement and deny the eminent area request as a result of the ag easement establishes a “prior public use.” 

Within the Union County Courtroom case, the decide had taken the alternative place, stating that the present ag easement didn’t forestall eminent area motion. In assist of the Baileys’ place because the case has moved ahead, the Ohio Farm Bureau, the Union County Farm Bureau and the Coalition of Ohio Land Trusts collectively submitted a short to the appeals courtroom. The temporary included arguments in opposition to granting the eminent area request, citing the state’s prior public use doctrine. 

“The decrease courtroom didn’t appropriately acknowledge that the proposed taking by Columbia Fuel would destroy and severely inhibit the prior public use of the agricultural easement in query on this case,” the temporary mentioned. 

ODA involvement

The Bailey household’s preserved farmland was protected with an agricultural easement in 2003 by Don Bailey’s uncle, Arno Renner, who owned the land at the moment. Renner donated the agricultural easement on the land to ODA. 

The ODA’s response to eminent area threats to the preserved farmland has different over time, Don Bailey mentioned. In 2005, Ohio Division of Agriculture Director Fred Dailey opposed set up of a sanitary sewer pipeline throughout the preserved Renner farm and that pipeline was re-routed. The ODA defended the easement once more in opposition to a proposed water pipeline just a few years later. Extra just lately, nevertheless, the ODA, now headed by Director Dorothy Pelanda, didn’t oppose development of the Columbia Fuel pipeline. 

Management of the ODA might be altering once more in 2023, since Pelanda has introduced her retirement, efficient Dec. 31. A brand new director for the division has not but been named. 

In 2023, the ODA’s Workplace of Farmland Preservation may also be utilizing up to date ag easement deed language that extra particularly identifies permitted makes use of of preserved land. 

Laura Curliss, an legal professional working with the Bailey household, informed the Farm and Dairy that these adjustments take this system additional down the incorrect path. 

“Our easements, which are paid for with public cash, are getting an increasing number of permissive,” she mentioned. 

One other concern, Curliss mentioned, is that the revenue tax advantages some landowners obtain from ag easement donations might be in jeopardy. In another components of the nation, syndicates have purchased farmland, then used inflated values for ag easements so syndicate members may declare charitable tax deductions. This syndication scheme is being utilized by buyers to offset revenue from different sources, Curliss mentioned. Consequently,  the U.S. Inside Income Service is taking a more in-depth take a look at charitable deductions claimed for ag easement donations. 

Increasing the permitted makes use of of land with ag easements makes this system much less significant for preserving farmland, Curliss mentioned. “Fairly quickly the IRS goes to select up on it.” 

Legislative motion

A invoice launched earlier this 12 months within the Ohio Home of Representatives proposes a number of adjustments to Ohio legislation that may profit Ohio landowners, whether or not they have land protected by ag easements or not. 

Home Invoice 698 was launched in June and is unlikely to see a lot motion earlier than the tip of the legislative session Dec. 21. Sponsors and proponents, nevertheless, are gearing as much as reintroduce related laws in the course of the subsequent session. 

HB 698 was sponsored by Rep. Darrell Kick of Loudonville and Rep. Rodney Creech of West Alexandria. 

A number of the proposed adjustments would make it simpler for property house owners to get well authorized charges when courts rule of their favor in eminent area instances. The invoice additionally proposes adjustments that may assist property house owners get well compensation when property is appropriated for public use with out compensation.