Law

Ohio State University to Provide Resolution Services for Ohio Farms

Ohio has over 76,000 farms and 13 million acres of farmland.  In such a large and diverse industry, conflicts commonly arise that can lead to disputes, litigation, and appeals.  Ultimately, these conflicts can cause harmful effects that threaten the viability of Ohio agriculture.  To address these issues, a new program has been developed – Ohio Farm Resolution Services at The Ohio State University (OFRS).  The goal of OFRS is to cultivate solutions to the conflicts that impact Ohio’s farms and farm families.

OFRS will provide a three-pronged approach to assist farms and farm families in resolving problems and conflicts:

  1. Education resources.  The first approach will be to provide educational resources that may lead to a resolution.  Educational resources may be in the form of bulletins, publications, articles or individual discussions.  For example, OFRS may provide a law bulletin on farm leasing to a tenant and landowner involved in a lease dispute.  Some disputes can be resolved through education alone.
  2. Consultation and informal resolution services.  OSU Extension attorneys and farm management specialists will be available to meet with parties to assist with resolving their issues.  These services will be more informal and may include sitting at the kitchen table with a family struggling with transition planning or perhaps meeting in a pasture to discuss shared fence line concerns between neighboring farmers.
  3. Formal mediation.  Sometimes conflicts escalate to hard feelings and entrenched positions.  When this happens, formal mediation may be appropriate.  This process will involve the intervention of a trained mediator to assist the parties in negotiating jointly acceptable resolution of issues in conflict. The mediator meets with the parties at a neutral location, often shuttling between separate rooms, where the parties can discuss the dispute and explore a variety of solutions.  Formal mediation is often the last step before litigation.

Most consultation and mediation services will be conducted by OFRS’ primary consultants/mediators: Peggy Hall, David Marrison, Jeff Lewis and Robert Moore.  OFRS will also develop a pool of outside mediators who can assist with matters that require special or unique technical knowledge.  OFRS is committed to providing individuals who have both the knowledge and skill to help understand and resolve issues.

OFRS will be able to assist on a wide variety of matters.  The following are issues for which OFRS can provide assistance:

  • Family communication
  • Farm transition planning
  • Business entities
  • Business practices
  • Land use
  • Property issues/neighbor issues
  • Zoning
  • Farm leases
  • Energy leases
  • Farm labor issues
  • Farmland drainage
  • Crops/agronomy/soils disputes
  • USDA administrative appeals
  • ODA administrative appeals
  • Farm lender/creditor negotiations

OFRS is available to provide educational and consultation services now.  Mediation services will be available beginning in January 2024.  For more information or to refer someone to OFRS, contact Robert Moore at moore.301@osu.edu or 614-247-8260.  Information is also available at farmoffice.osu.edu/ofrs.

The Ag Law Roundup: your legal questions answered

Source: Peggy Hall, OSU Extension

Is a tree service business considered “agriculture” for purposes of Ohio rural zoning?

No, tree trimming and tree cutting activities are not listed in the definition of agriculture in Ohio’s rural zoning laws, although the definition does include the growing of timber and ornamental trees. The definition ties to the “agricultural exemption” and activities that are in the “agriculture” definition can be exempt from county and township zoning.  Here is the definition, from Ohio Revised Code sections 303.01 and 519.01:

“agriculture” includes farming; ranching; algaculture meaning the farming of algae; aquaculture; apiculture; horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any combination of the foregoing; and the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production.

What are the benefits of being enrolled in the “agricultural district program” in Ohio, and is there a penalty for withdrawing from the program?

There are three benefits to enrolling farmland in the agricultural district program:

  1. The first is the nuisance protection it offers a landowner.  A landowner can use the defense the law provides if a neighbor who moves in after the farm was established files a lawsuit claiming the farm is a “nuisance” due to noise, odors, dust, etc.  Successfully raising the defense and showing that the farm meets the legal requirements for being agricultural district land would cause the lawsuit to be dismissed.
  2. The second benefit is that the law also exempts agricultural district land from assessments for water, sewer and electric line service extensions that would cross the land.  As long as the land remains in agricultural district program, the landowner would not be subject to the assessments.  But if the land is changed to another use or the landowner withdraws the land from the agricultural district program, assessments would be due.  The assessment exemption does not apply to a homestead on the farmland, however.
  3. A third benefit of the agricultural district program law is that it requires an evaluation at the state level if agricultural district land is subject to an eminent domain action that would affect at least 10 acres or 10% of the land.  In that case, the Director of the Ohio Department of Agriculture must be notified of the eminent domain project and must assess the situation to determine the effect of the eminent domain on agricultural production and program policies.  Both the Director and the Governor may take actions if the eminent domain would create an unreasonably adverse effect.

Continue reading The Ag Law Roundup: your legal questions answered →

Is it Pigweed or Palmer? – Hope it’s not Waterhemp!

It’s that time of year when weeds are beginning to show their ugly heads above the soybean canopy in many fields.  During your scouting, if you find Palmer Amaranth or Waterhemp you should do whatever you can to prevent these devastating weeds from going to seed, including removing the entire plant from the field.

Each of the last 3 weeks I have included a post highlighting the different characteristics of Pigweed, Palmer Amaranth and Waterhemp.  These posts also included a step by step video to help with the identification process for these weeds.

Depending upon the growth stage, identifying these weeds in the field can be challenging. If a seedhead is present, most weeds are easier to identify, including pigweed, palmer and waterhemp. If you have seen a mature palmer seadhaed you will never forget it!  (see pictures above)

When trying to differentiate between these weeds I look for the following 3 plant characteristics:

1.Hair

Pigweed has hair the others do not.  Rub the stem and leaves checking for a “rough” texture.  Palmer and waterhemp will be smooth.

 

2. Leaves

Long Lanceolate Leaves

Waterhemp has long, slender leaves (lanceolate). While pigweed and palmer are more oval in shape.  Pigweed is wider in the middle and palmer is wider near the base of the leaf (this is usually hard do differentiate in the field).

 

 

3. Petiole

The petiole is the part of the plant that connects the leaf to the stem.  The petiole on palmer plant is as long or longer than the leaf.  Pigweed and waterhemp have much shorter petioles (often less than 1/2 the length of the leaf).

These weeds are here, they best way to prevent the spread is by preventing them from developing a seedhead.  One mature female plant  can produce up to 1,000,000 seeds.

 

Weed Identification Videos

 

If you  are still not sure about the identification, do not hesitate to call 740-397-0401) or send (barker.41@osu.edu) me a picture!!!

Ohio’s Farm Lease Termination Deadline Approaching

Source: Robert Moore

A new Ohio law took effect last year that impacts some landowners who want to terminate their farm crop leases. If a farm lease does not include a termination date or a termination method, the law requires a landowner to provide termination notice to the tenant by September 1. The law was adopted to prevent late or otherwise untimely terminations by landowners that could adversely affect tenants.

It is important to note that the law only applies to verbal leases or written leases that do not include a termination date or method of notice of termination.  If a written lease includes a termination date or method of notice, the terms of the lease apply and not the termination notice law.  Also, the law does not apply to leases for pasture, timber, farm buildings, horticultural buildings, or equipment.

The notice can be provided to the tenant by hand, mail, fax, or email.  If termination is provided by September 1, the lease is terminated either upon the date harvest is complete or December 31, whichever is earlier.  While no specific language is required for the termination notice, it is good practice to include the date of notice, an identification of the leased farm and a statement that the lease will terminate on the completion of harvest or December 31.  If termination is provided after September 1, the lease continues for another year unless the tenant voluntarily agrees to terminate the lease early.

A tenant is not subject to the new law and can terminate a lease after September 1 unless the leasing arrangement provides otherwise.  Because it is generally easier for a landowner to find another tenant, even on short notice, the law protects only the tenant from untimely terminations, not landowners.

For more information, see Ohio’s New Statutory Termination Date for Farm Crop Leases law bulletin available at farmoffice.osu.edu.

Ohio Supreme Court decision explains eminent domain procedures

By: Peggy Kirk Hall, Attorney and Director, Agricultural & Resource Law Program

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.

Continue reading Ohio Supreme Court decision explains eminent domain procedures →

Are Crops Part of the Land?

By: Robert Moore, OSU Extension

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.

Webinar series on Solar Development in Ohio

Do you want to know more about what’s happening with Ohio solar energy development?  Join us for a five-part webinar series reviewing the current state of solar development in Ohio and explaining the solar development process. Attend one, several, or all of the following webinar sessions:

May 23: Solar Development Overview and Trends

• We’ll give an overview of Ohio solar development and discuss industry and technology trends, dual use of land for solar energy and agricultural production, and community and regulatory issues with solar development.

May 24: Leasing Land for Solar Development

• This session targets landowners considering a solar lease. We’ll cover pre-leasing issues, solar lease phases, common legal terms, and best management practices for leasing.

May 25: Connecting to the Electric Grid

• Approval to connect to the grid is a necessary and critical part of the solar development process. We’ll provide an overview of the electric utility system, regulatory jurisdiction, and interconnection procedures and timelines.

May 30: Solar Project Approval in Ohio

• Ohio regulatory requirements for solar projects have changed in recent years. This session explains solar project application procedures, state oversight, and new laws allowing county and township oversight of solar development. May 31: Construction and Post-Construction Considerations • What does solar project construction involve, and what happens at the end of a project’s life? We’ll cover the construction process, common construction issues, regulatory oversight of construction, and requirements for decommissioning a project in the future.

Learn more and register at go.osu.edu/solarwebinars.

2023 Regional Weeds University

OSU Extension invites crop producers, CCAs, and agribusinesses to attend a regional 2023 Ohio Weed University on Wednesday, March 1, from 9:00 a.m. to 4:00 p.m. at the Ramser 4H Activity Center, 700 Perimeter Dr. Mount Vernon, OH.

This program is designed to keep agronomic producers on the cutting edge in weed control for their cropping operations. Topics addressed will include hot topics in weed control, local weed issues, biology, identification of weeds, control strategies, and evaluating herbicides. Hands-on exercises weed identifications will be included.

Featured speakers will include Dr. Aaron Hager, Associate Professor, Department of Crop Sciences, University of Illinois; Dr. Patrick Tranel, Professor, Weed Science, University of Illinois; Dr. Alyssa Essman, visiting Professor and acting State Weed Specialist, The Ohio State University; and, Tony Dobbels, Research Specialist, The Ohio State University. This is an “in-person” event with a of the program being conducted virtually at the above locations.

Dr. Hager contributes to increased crop production through the development and implementation of integrated weed management programs. His research helps to identify and manage herbicide resistance in the most aggressive agronomic weeds. Dr. Tanel’s research and teaching is based on weed science, with an emphasis on the evolution, genetics, molecular biology, and genomics of agronomic weeds. His specialties include herbicide resistance and weedy Amaranthus species. Dr. Essman’s research is setting up a long-term research project looking at the effects of cover crops and herbicide inputs on waterhemp populations and seed bank dynamics. Dobbels manages the herbicide evaluation and field research program in row crop weed control at Ohio State.

The registration fee per person is $40.  Call OSU Extension 740-397-0401 to register.  

Registration deadline is Monday February 27.

Click here to view agenda

LLCs for Farm Machinery, Not the Liability Barrier You Might Think.

by: Robert Moore, Attorney, OSU Agricultural & Resource Law Program

A common business strategy for farming operations is to place their machinery in a separate, stand-alone LLC. The idea behind this strategy is that by putting the high-liability machinery in its own LLC the other farm assets are protected. Unfortunately, the liability protection of a machinery LLC is sometimes overstated and may not provide as much protection as intended.

The compromised liability protection of a machinery LLC is not due to a defect in LLCs, but rather it is a result of who is operating the machinery. Typically, the persons operating the machinery are the owners or employees of the farming operation. Many liability incidents involving farm machinery are the result of operator error which pulls the liability back to the farming operation.

Consider the following example. XYZ Farms is a grain operation. To mitigate the liability of having large machinery traveling on roadways, XYZ Farms establishes Machinery LLC and transfers all machinery to the LLC. An employee of XYZ Farms causes an accident while driving machinery on a roadway. Because employers are liable for the actions of employees, XYZ Farms is liable for the accident even though the machinery was held in Machinery LLC.

A machinery LLC does provide some liability protection. If the liability incident is caused solely by an issue with the machine and not the operator, the LLC may prevent liability from transferring to other assets. Again, most accidents are caused by operator error so relying on this liability protection is planning against the odds.

As seen in the example, machinery LLCs do not completely insulate owners and other assets from liability. In fact, no entity used in a farming operation is guaranteed to prevent liability exposure for the owner. Therefore, liability insurance should always be the primary liability management plan for farm operations. Business entities should be used as the backup plan if liability insurance fails to cover liability exposure.

Machinery LLCs do have other beneficial uses. One of the more common uses is to consolidate various machinery ownership among family members. Having one entity own, buy, and sell all machinery is often a simpler plan than multi-ownership. For example:

Mom and Dad, Son, and Daughter each own some machinery. Each time they need to buy a new piece of equipment, it is a challenge to determine how the trade-in is handled and who should be the new owner. Instead, they establish a machinery LLC and put all their machinery in the LLC. They each receive ownership in the LLC in proportion to the ownership in the machinery. For all future purchases, the LLC provides the trade-in and buys the new machine.

The liability protection provided by machinery LLCs may not be as thorough as sometimes expected but they can still be a valuable component of a business structure plan. They do provide some liability protection and are useful in other ways such as consolidating ownership. Before establishing a machinery LLC, be sure to have a thorough discussion with legal counsel to fully understand it’s benefits and limitations.