The Ag Law Roundup

It’s time to round up a sampling of legal questions we’ve received the past month or so.  The questions effectively illustrate the breadth of “agricultural law,” and we’re happy to help Ohioans understand its many parts.  Here’s a look at what has come our way:

I’m considering a carbon credit agreement.  What should I look for?   Several types of carbon credit agreements are now available to Ohio farmers, and they differ from one another so it’s good to review them closely and with the assistance of an attorney and an agronomist.  For starters, take time to understand the terminology, make sure you can meet the initial eligibility criteria, review payment and penalty terms, know what types of practices are acceptable, determine “additionality” requirements for creating completing new carbon reductions, know the required length of participation and how long the carbon reductions must remain in place, understand how carbon reductions will be verified and certified, be aware of data ownership rights, and review legal remedy provisions.  That’s a lot!  Read more about each of these recommendations in our blog post on “Considering Carbon Farming?”

I want to replace an old line fence.  Can I remove trees along the fence when I build the new fence?   No, unless they are completely on your side of the boundary line.  Both you and your neighbor co-own the boundary trees, so you’ll need the neighbor’s permission to remove them.  You could be liable to the neighbor for the value of the trees if you remove them without the neighbor’s approval, and Ohio law allows triple that value if you remove them against the neighbor’s wishes or recklessly harm the trees in the process of building the fence.  You can, however, trim back the neighbor’s tree branches to the property line as long as you don’t harm the tree.  Also, Ohio’s line fence law in ORC 971.08 allows you to access up to 10 feet of the neighbor’s property to build the fence, although you can be liable if you damage the property in doing so.

I want to sell grow annuals and sell the cut flowers.  Do I need a nursery license?  No.  Ohio’s nursery dealer license requirement applies to those who sell or distribute “nursery stock,” which the law defines as any “hardy” tree, shrub, plant, bulb, cutting, graft, or bud, excluding turf grass.  A “hardy” plant is one that is capable of surviving winter temperatures. Note that the definition of nursery stock also includes some non-hardy plants sold out of the state.  Because annual flowers and cuttings from those flowers don’t fall into the definition of “nursery stock,” a seller need not obtain the nursery dealer license.

Must I collect sales tax on cut flowers that I sell?  Yes.  In agriculture, we’re accustomed to many items being exempt from Ohio’s sales tax.  That’s not the case when selling flowers and plants directly to customers, which is a retail sale that is subject to the sales tax.  The seller must obtain a vendor’s license from the Ohio Department of Taxation, then collect and submit the taxes regularly.  Read more about vendor’s licenses and sales taxes in our law bulletin at this link.

I’m an absentee landowner who rents my farmland to a tenant operator.  Should I have liability insurance on the land?  Yes.  A general liability policy with a farm insurer should be affordable and worth the liability risk reduction.  But a few other steps can further minimize risk.  Require your tenant operator to have liability insurance that adequately covers the tenant’s operations, and include indemnification provisions in your farm lease that shift liability to the tenant during the lease period.  Also consider requiring your tenant or hiring someone to do routine property inspections, monitor trespass issues, and ensure that the property is in a safe condition. 

My neighbor and I both own up to the shoreline on either side of a small lake–do I have the right to use the whole lake?  It depends on where the property lines lay and whether the lake is connected to other waters. If the lake is completely surrounded by private property and not connected to other “navigable” waters, such as a stream that feeds into it, the lake is most likely a private water body.  Both of you could limit access to your side of the property line as it runs through the lake.  You also have the legal right to make a “reasonable use” of the water in the lake from your land, referred to as “riparian rights.”  You could withdraw it to water your livestock, for example; but you cannot “unreasonably” interfere with your neighbor’s right to reasonably use the water.   The law changes if the lake is part of a “navigable” waterway.  It is then a “water of the state” that is subject to the public right of navigation.  Others could float on and otherwise navigate the water, and you could navigate over to your neighbor’s side.  Public users would not have the riparian rights that would allow them to withdraw and use the water, however, and would be trespassing if they go onto the private land along the shore.

If I start an agritourism activity on my farm, will I lose my CAUV status?  No, not if your activities fit within the legal definition of “agritourism.”  Ohio law states in ORC 5713.30(A)(5) that “agritourism” activities do not disqualify a parcel from Ohio’s Current Agricultural Use Valuation (CAUV) program. “Agritourism,” according to the definition in ORC 901.80, is any agriculturally related educational, entertainment, historical, cultural, or recreational activity on a “farm” that allows or invites members of the general public to observe, participate in, or enjoy that activity.  The definition of a “farm” is the same as the CAUV eligibility—a parcel devoted to commercial agricultural production that is either 10 acres or more or, if under 10 acres, grosses $2500 annually from agricultural production.  This means that land that is enrolled in the CAUV program qualifies as a “farm” and can add agritourism activities without becoming ineligible for CAUV.

Send your questions to aglaw@osu.edu and we’ll do our best to provide an answer.  Also be sure to check out our law bulletins and the Ag Law Library on https://farmoffice.osu.edu, which explain many of Ohio’s vast assortment of agricultural laws.

The Ag Law Roundup: your ag law questions answered

It’s time to round up another batch of legal Q&A.  Here are some of questions 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.

The legal roundup: ag law questions from across Ohio

I recall sharing my concern with a professor when I was in law school:  how will I ever know all the answers to legal questions?  No worries, he said.  You can’t know the answer to every legal question, but you do need to know how to find the answers.  I think of that advice often as legal questions come across my desk.   

We’ve had a steady stream of them this summer, and the questions provide a snapshot of what’s going on around the state.  Here’s a sampling of questions we’ve received recently, complete with our answers—some we knew and some we had to find.

What do you know about the $500 million to be set aside at USDA for meat processors—who will administer it and what is the timeline?  USDA published a notice on July 16, 2021 titled “Investments and Opportunities for Meat and Poultry Processing Infrastructure” seeking input on how to allocate the funds.  The notice solicits comments on how to address challenges and increase competition in meat and poultry processing through the $500 million in infrastructure and other investments.  USDA is looking at current programs, combinations of programs, and potential programs that can leverage the funds to expand and diversify meat and poultry processing capacity and make the supply chain more resilient.  A review of the questions USDA raised in the notice gives a good indication of the types of programs we might see, and administration of the programs could be at both the federal and state levels.   The comments are due by August 30, 2021 and USDA will review them before moving forward.  It will be at least several months before decisions are made and the funds are available.

If I enroll my land in the Wetlands Reserve Program, does the land still qualify for Current Agricultural Use Valuation tax treatment?  Yes.  Ohio’s CAUV law allows eligible land to be assessed as agricultural land for property taxation under the CAUV formula.  Eligible land is “land devoted exclusively to agricultural use.”  The definition of that term is important, and the relevant section that places wetlands and other conservation practices within that definition is ORC 5713.30(A)(1(c), which states that “land devoted exclusively to agricultural use” include tracts, lots, or parcels of land with at least ten acres which “were devoted to and qualified for payments or other compensation under a land retirement or conservation program under an agreement with an agency of the federal government.”  According to court cases in Ohio, wetlands enrolled in federal conservation programs fit within this term and should qualify for CAUV treatment, even wetlands used as a mitigation bank.  An Ohio Attorney General opinion disagrees that a wetlands mitigation bank is a government conservation program, but that is an advisory rather than binding opinion.

Are there any special requirements for a cottage food producer for selling “gluten free” or “vegan” products?   Yes. You must ensure that you meet federal regulations to use “gluten free” terminology on your cottage food label.  There isn’t a label review and approval process for using the language, though, as it’s “self-policing.” You must be sure that your product does not include any gluten containing ingredients.  And because low levels of gluten could result from cross contact in your kitchen, your product must be below the tolerance level of 20 ppm of gluten.  There isn’t a testing requirement to prove that you’re under 20 ppm before you sell it, but if for some reason someone challenged your product or ODA randomly sampled it, it must meet the 20 ppm standard.  You can have your product lab tested if you want to have that assurance.  Otherwise, you should carefully manage your kitchen to reduce cross contamination.  The FDA provides the gluten free labeling rule on its website  and has a helpful FAQ page also.  FDA has said it will be updating the gluten free rule, but I haven’t seen anything new yet.

Vegan labeling is a lesser regulatory concern.  If you use that or related terms like “animal free” on your product, federal law requires that you be “truthful and not misleading” to the consumer.  There isn’t a federal or state definition of “vegan” to help with that determination, but the agencies explain the term basically as not containing any animal products.  Your ingredient list should confirm any vegan or animal free claims on the product.

Are there regulations pertaining to online sales of perennial plants?  Yes.  The seller will need to obtain a nursery license from the Ohio Department of Agriculture.  The type of license will depend on their type of sales.  A phytosanitary certificate might also be required by the importing states where their sales will take place; ODA also handles those certificates.  Additional, the seller will need to obtain a vendor’s license from the Department of Taxation to collect and submit sales tax on the plant sales.

Does a “Scenic River” designation by the Ohio Department of Natural Resources allow the agency to take my property that’s along the river?  No.  The language in the Scenic Rivers statute is misleading, as it states that “the area shall include lands adjacent to the watercourse in sufficient width to preserve, protect, and develop the natural character of the watercourse, but shall not include any lands more than one thousand feet from the normal waterlines of the watercourse unless an additional width is necessary to preserve water conservation, scenic, fish, wildlife, historic, or outdoor recreation values.”  Without reading the entire statute, it does sound as though ODNR is laying some type of claim up to 1,000 feet of the lands adjacent to the river.  However, further along in the statute is this language that prohibits the agency from having any authority over the private land:  “Declaration by the director that an area is a wild, scenic, or recreational river area does not authorize the director or any governmental agency or political subdivision to restrict the use of land by the owner thereof or any person acting under the landowner’s authority or to enter upon the land and does not expand or abridge the regulatory authority of any governmental agency or political subdivision over the area.”  Additionally, my further research indicates that ODNR has never used eminent domain to take private property along a scenic river, nor does it have funding allocated from the legislature to purchase scenic river lands.

Do I need a license to make and sell egg noodles from the farm?  Yes.  Egg noodles don’t fall under Ohio’s Cottage Food Law, which allows you to make and sell certain low-risk “cottage foods” with little regulation or licensing requirements.  Instead, producing egg noodles for sale from a home kitchen requires a home bakery registration.  You obtain the registration from the Ohio Department of Agriculture’s Food Safety Division.  It requires that you submit a request for inspection form, pass an inspection of the home, and submit a $10 fee.  The inspection will confirm that walls, ceilings and floors are clean, easily cleanable and in good repair; the kitchen does not have carpeted floors; there are no pets or pests in the home; the kitchen, equipment and utensils are maintained in a sanitary condition; the kitchen has a mechanical refrigerator capable of maintaining 45 degrees and equipped with a thermometer; if the home has a private well, proof of a well test completed within the past year showing a negative test result for coliform bacteria; the food label meets labeling requirements.

Is raising and training dogs considered “animal husbandry” for purposes of d the agricultural exemption from township zoning authority?   Yes. The Ohio Supreme Court held in Harris v. Rootstown Twp. that “the raising and care of dogs constitutes animal husbandry and is included in the term “agriculture” within the meaning of R.C. 519.01.”  This means that the agricultural exemption in Ohio Revised Code 519.21 applies to raising and caring for dogs, and township zoning can’t prohibit the use of any lot over five acres for those purposes.  The township would have limited regulatory authority over dog raising on smaller lots in some situations, though.  There is often confusion among townships over how to classify dogs, and that may be because they differ from what we typically think of as “farm animals.”  But the Rootstown Twp. case, along with many other appellate level cases in Ohio, confirm that dogs are to be treated the same as “livestock” for purposes of the agricultural exemption from zoning.  

Can both landowners be assessed half the cost of removal of noxious weeds that are growing in a partition fence?  Maybe.  The Ohio line fence law does allow a township to step in and clear the fence row of noxious weeds, brush, briers and similar vegetation if a complaint is filed by one landowner against an adjacent landowner who refuses to clear the weeds.  The costs for doing so are assessed back on the refusing landowner whose fence row was cleared.  If the noxious weeds arise from both sides of the fence, are growing in the fence, and must be cleared from both sides of the fence, the township trustees would have the authority to assess the costs of removal back on both landowners. I’ve never heard of that happening, but it’s certainly one of those “be careful what you wish for” situations.

Navigating Ohio’s Line Fence Law

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Here at the OSU Extension Farm Office, we get questions about all sorts of topics, but one topic in particular shows up in our inbox rather frequently.  Line fence laws regulate those fences, sometimes called partition fences, that are located on a property boundary between adjacent parcels of land.  Ohio has had laws on this topic for well over a hundred years, and these laws represent an important piece of history in the development of property rights in our state.  While one might hope that by now all the kinks and questions would be resolved, there are still some misunderstandings and gray areas about the law that we grapple with to this day.

In order to help landowners better understand their rights and responsibilities, the OSU Extension Farm Office team has complied a number of resources about Ohio’s line fence laws on our website at farmoffice.osu.edu/our-library/line-fence-law.  When the Ohio General Assembly significantly changed the line fence provisions in the Ohio Revised Code in 2008, our director, Peggy Kirk Hall, wrote a number of fact sheets that provide an overview of the changes, summaries of key elements of the law, and also guides for townships.

The Ohio Line Fence Law Fact Sheet provides an in depth look at the 2008 changes.  It explains what a line fence is, how costs are allocated, the different types of line fences addressed, special rules for line fences containing livestock, procedures for building a fence, procedures for disputes between neighbors, and more.  A shorter summary of that same information is available in the fact sheet titled, A Summary of Ohio’s Line Fence Law.

In addition to the overviews of the law, there are also resources that explain particular aspects of the law more in depth, along with guides for township officials.  These include:

• Alternative Landowner Agreements Under Ohio’s Line Fence Law
• Ohio Partition Fence Law: A Procedural Guide for Townships
• Notice of Rights and Responsibilities for Townships

Over the course of the decade following the 2008 changes, a number of questions continued to be asked by landowners across the state, so we compiled a Frequently Asked Questions law bulletin.  Instead of only explaining what the law says, this law bulletin takes a question and answer approach that goes through questions associated with scenarios such as:

• My neighbor wants to install a new fence on a never fenced boundary
• My neighbor wants to permanently remove an existing fence
• My neighbor wants to replace an old fence on our property boundary

The FAQ law bulletin also looks at the role of township trustees, and what the law says about fence construction and upkeep.

While these publications cover a lot of information, sometimes we get a new question that has yet to make it into one of our publications.  The following represent a few of those questions.

Right to access neighbor’s property applies to fence construction, not removal

Ohio Revised Code § 971.08 provides a landowner with a ten foot right to access his or her neighbor’s property in order to construct a new line fence or to maintain an existing fence.  If the landowner or the landowner’s contractor causes damage to his or her neighbor’s property, the landowner will be liable for that damage, including damage to crops.  However, as there is a separate statute for removing a line fence located at Ohio Revised Code § 971.17, the right of access to construct or maintain a fence does not clearly include a right to enter onto a neighbor’s property in order to remove a line fence.  Under this statute, a landowner who enters his or her neighbor’s land could be liable for trespass.

Written notice is required prior to removing a fence

Ohio Revised Code § 971.17 requires a property owner to give written notice to his or her neighbor at least 28 days in advance of removing a shared line fence.  If a landowner or the landowner’s contractor enters the neighbor’s property to remove a fence without sufficient notice, that could constitute a trespass under Ohio Revised Code § 971.17.  This notice requirement is intended to ensure that the landowner has a chance to protest the removal or at least discuss the terms of the removal.

Trees on the property line are the shared property of the neighboring landowners

One thing not specifically addressed in Ohio’s line fence laws is the issue of trees on the property line.  Ohio Revised Code § 971.33 requires landowners to keep all fence corners and a four foot strip along the entirety of a fence clear of brush, briers, thistles, and other noxious weeds.  However, this statute specifically says that it does not apply to the planting of vines or trees for use.  Because these are specifically excluded from this noxious weeds statute, the common law as made by courts will apply.

The common law provides that trees on the property line are owned by both landowners and do not have to be cleared from the fence row.  This means that if one landowner wants to remove a tree on the property line, that landowner must seek permission from his or her neighbor.  Even though the landowner owns half of the tree, the landowner cannot interfere with his or her neighbor’s property interest in the tree.  Without his or her neighbor’s permission, the landowner could be liable for removing the tree or even cutting it in a manner that causes the tree to die.  Because of Ohio’s reckless destruction of trees and crops statute in Ohio Revised Code § 901.51, a person who cuts, destroys, or injures a tree located on the land of another could be liable for up to three times the value of the tree.

If you have a question about Ohio’s line fence law, let us know, and we will try to find an answer.  Much like we tell students and those who attend our presentations, it is likely that someone else has the same question as you.  Stay tuned to the Ag Law Blog for more updates about questions we receive about Ohio’s line fence law.