When can a county or township prohibit renewable energy facilities from locating in the community?

The siting of renewable energy projects on Ohio farmland is a divisive issue these days, pitting neighbors against neighbors and farmers against farmers.  Some support expanding renewable energy capacity while others oppose losing productive farmland or changing the rural landscape.  A common question arising in this conflict is this:  when can a county or township say “no” to a proposed renewable energy development?  Several new laws, old laws, and recent court cases can help answer this question, although the answer is not always clear.

The “public utility exemption” from zoning.  A long-standing provision of Ohio law that limits county and township land use power is the “public utility exemption” from zoning. Ohio Revised Code Sections 303.211(counties) and 519.211 (townships) specifically state that counties and townships have no zoning authority “in respect to the location, erection, construction, reconstruction, change, alteration, maintenance, removal, use, or enlargement of any buildings or structures of any public utilities.” The historical reason for this exemption is to keep local regulations from interfering with the provision of public utility services to Ohio residents.  But what is a “public utility”?  The exemption does not define the term, leaving Ohio courts to determine what is and is not a public utility on a case-by-case basis.  More on that later.

New powers in Senate Bill 52.  Effective in October of 2021, Senate Bill 52 gave new powers to county commissioners over certain renewable energy developments, setting aside the “public utility exemption” in those situations.  The new law states that counties can designate restricted areas where wind and solar development is prohibited and can prohibit an individual proposed wind and solar facility or limit its size.  These new powers, however, apply only to facilities with a single interconnection to the electrical grid and beyond a certain production size.  For solar facilities, that size is 50 MW or more of energy production and for wind facilities, it’s 5 MW or more. Facilities that aren’t connected to the grid or are beneath those amounts are not subject to the new powers granted in S.B. 52.  Additionally, facilities that had reached a certain point in the state approval process aren’t subject to the new law.  Several Ohio counties have already established restricted areas or worked with townships to determine whether the county will approve individual projects as they come forward.

Authority over “small wind farms.”  New wind power development in Ohio a decade ago led to the “small wind farm” provision in Ohio Revised Code Sections 303.213 (counties) and 519.213 (townships).  This law allows counties and townships to use their zoning powers to regulate the location and construction of publicly and privately owned “small wind farms,” regardless of the public utility exemption.  A “small wind farm” is any wind turbine that is not subject to Ohio Power Siting Board jurisdiction, meaning that it produces less than 5 MW of energy.  Some counties and townships have utilized this provision of law to establish setback distances for wind turbines in residential areas.

The “bioenergy” exemptions.  Yet another Ohio law limits county and township zoning authority over bioenergy facilities.  Found in the “agricultural exemption from zoning” statute, Ohio Revised Code Sections 303.21(C) (counties) and 519.21(C) (townships) states that county and township zoning cannot prohibit the use of any land for biodiesel production, biomass energy production, electric or heat energy production, or biologically derived methane gas production if the facility is on land that qualifies as “land devoted exclusively to agricultural use” under Ohio’s Current Agricultural Use Valuation program and if, for biologically derived methane gas, the facility does not produce more than 5 MW or 17.06 million BTUs of energy.  Ohio now has several facilities that fit within this exemption from zoning authority.

Two recent cases examine when a renewable energy facility a “public utility.”  The “public utility exemption” from county and township zoning was at issue in two similar Ohio cases concerning biodigesters, facilities that process manure and other solid wastes into methane gas that is used to generate electricity.  The most recent is Dovetail Energy v. Bath Township.  The township claimed that the Dovetail biodigester located on farmland in Greene County was an “industrial use” that violated township zoning regulations.  The owners argued that the biodigester was exempt from township zoning under both the “public utility” exemption and the “bioenergy” exemption. 

The case reached the Second District Court of Appeals, which focused a large part of its analysis on the issue of whether the biodigester is a “public utility” that is exempt from township zoning under Ohio Revised Code 519.211.  Relying on earlier cases from the Ohio Supreme Court, the court explained that an entity is a public utility if “the nature of its operation is a matter of public concern” and if “membership is indiscriminately and reasonably made available to the general public” as a public service. 

The court analyzed the “public service” and “public concern” factors for the Dovetail biodigester, examining first whether Dovetail provides a public service, which requires a showing that the facility indiscriminately provides essential goods or services to the public, which has a legal right to demand or receive the goods or services, and that the goods or services can’t be arbitrarily withdrawn.  Because Dovetail generates electricity that is sold into the wholesale energy market and used to provide energy to local utilities and customers and because Dovetail is also required to provide renewable energy credits that it cannot arbitrarily or unreasonable withdraw, the court concluded that the facility is a “public service.”

Factors determining whether Dovetail’s operation is also a matter of “public concern” that the court analyzed included whether Dovetail “serves such a substantial part of the public that its rates, charges and methods of operation become a public concern.” The court looked to Ohio’s incentives for renewable energy development, the lack of competition in the electric grid, the “heavy” regulatory environment for Dovetail, and its payment of public utility taxes as indications that Dovetail and the energy it produces are “public concerns.”  Meeting both the “public service” and “public concern” components, the appeals court agreed with the lower court’s ruling that Dovetail is a public utility and is exempt from Bath Township zoning regulations.

The Dovetail decision echoes an earlier decision in the Fifth Appellate District, Westfield Township v. Emerald Bioenergy, where the appellate court examined a biodigester on farmland in Morrow County and found that the township could not regulate it because it is a “public utility.”  The court cited factors such as Emerald’s provision of electric to the general public through interconnection agreements that distribute the energy to the energy grid, its lack of control over which customers receive or use the energy, its renewable energy credit requirements that can’t be arbitrarily or unreasonably withdrawn, its acceptance of waste from any customer, its governmental regulations and oversight, and its public utility taxes.  The court also noted that it need not address the “bioenergy” exemption because it found the enterprise to be a “public utility.”

Both townships in the Dovetail Energy and Emerald Bioenergy cases requested a review of the decision by the Ohio Supreme Court.  But the Supreme Court decided not to hear either case, although several of the justices dissented from that decision in each case.  Without further review by the Supreme Court, the appellate court decisions stand.

These cases are relevant for solar energy facilities under 50 MW.  Recall that S.B. 52 allows counties to prohibit or restrict solar facilities that are 50 MW or higher, but no other law addresses solar facilities with a single interconnection point to the energy grid that produce less than 50 MW.  Would such a facility be a “public utility” under the public utility exemption?  As with Dovetail and Emerald, a court would have to examine the solar facility and determine whether “the nature of its operation is a matter of public concern” and if “membership is indiscriminately and reasonably made available to the general public” as a public service.  If so, a county or township could not use zoning to prohibit or regulate the location or construction of the solar facility. 

Learn more about Senate Bill 52 in the Farm Office Energy Law Library at https://farmoffice.osu.edu/our-library/energy-law.

When can a county or township prohibit renewable energy facilities from locating in the community?

The siting of renewable energy projects on Ohio farmland is a divisive issue these days, pitting neighbors against neighbors and farmers against farmers.  Some support expanding renewable energy capacity while others oppose losing productive farmland or changing the rural landscape.  A common question arising in this conflict is this:  when can a county or township say “no” to a proposed renewable energy development?  Several new laws, old laws, and recent court cases can help answer this question, although the answer is not always clear.

The “public utility exemption” from zoning.  A long-standing provision of Ohio law that limits county and township land use power is the “public utility exemption” from zoning. Ohio Revised Code Sections 303.211(counties) and 519.211 (townships) specifically state that counties and townships have no zoning authority “in respect to the location, erection, construction, reconstruction, change, alteration, maintenance, removal, use, or enlargement of any buildings or structures of any public utilities.” The historical reason for this exemption is to keep local regulations from interfering with the provision of public utility services to Ohio residents.  But what is a “public utility”?  The exemption does not define the term, leaving Ohio courts to determine what is and is not a public utility on a case-by-case basis.  More on that later.

New powers in Senate Bill 52.  Effective in October of 2021, Senate Bill 52 gave new powers to county commissioners over certain renewable energy developments, setting aside the “public utility exemption” in those situations.  The new law states that counties can designate restricted areas where wind and solar development is prohibited and can prohibit an individual proposed wind or solar facility or limit its size.  These new powers, however, apply only to facilities with a single interconnection to the electrical grid and beyond a certain production size.  For solar facilities, that size is 50 MW or more of energy production and for wind facilities, it’s 5 MW or more. Facilities that aren’t connected to the grid or are beneath those amounts are not subject to the new powers granted in S.B. 52.  Additionally, facilities that had reached a certain point in the state approval process aren’t subject to the new law.  Several Ohio counties have already established restricted areas or worked with townships to determine whether the county will approve individual projects as they come forward.

Authority over “small wind farms.”  New wind power development in Ohio a decade ago led to the “small wind farm” provision in Ohio Revised Code Sections 303.213 (counties) and 519.213 (townships).  This law allows counties and townships to use their zoning powers to regulate the location and construction of publicly and privately owned “small wind farms,” regardless of the public utility exemption.  A “small wind farm” is any wind turbine that is not subject to Ohio Power Siting Board jurisdiction, meaning that it produces less than 5 MW of energy.  Some counties and townships have utilized this provision of law to establish setback distances for wind turbines in residential areas.

The “bioenergy” exemptions.  Yet another Ohio law limits county and township zoning authority over bioenergy facilities.  Found in the “agricultural exemption from zoning” statute, Ohio Revised Code Sections 303.21(C) (counties) and 519.21(C) (townships) states that county and township zoning cannot prohibit the use of any land for biodiesel production, biomass energy production, electric or heat energy production, or biologically derived methane gas production if the facility is on land that qualifies as “land devoted exclusively to agricultural use” under Ohio’s Current Agricultural Use Valuation program and if, for biologically derived methane gas, the facility does not produce more than 5 MW or 17.06 million BTUs of energy.  Ohio now has several facilities that fit within this exemption from zoning authority.

Two recent cases examine when a renewable energy facility a “public utility.”  The “public utility exemption” from county and township zoning was at issue in two similar Ohio cases concerning biodigesters, facilities that process manure and other solid wastes into methane gas that is used to generate electricity.  The most recent is Dovetail Energy v. Bath Township.  The township claimed that the Dovetail biodigester located on farmland in Greene County was an “industrial use” that violated township zoning regulations.  The owners argued that the biodigester was exempt from township zoning under both the “public utility” exemption and the “bioenergy” exemption. 

The case reached the Second District Court of Appeals, which focused a large part of its analysis on the issue of whether the biodigester is a “public utility” that is exempt from township zoning under Ohio Revised Code 519.211.  Relying on earlier cases from the Ohio Supreme Court, the court explained that an entity is a public utility if “the nature of its operation is a matter of public concern” and if “membership is indiscriminately and reasonably made available to the general public” as a public service. 

The court analyzed the “public service” and “public concern” factors for the Dovetail biodigester, examining first whether Dovetail provides a public service, which requires a showing that the facility indiscriminately provides essential goods or services to the public, which has a legal right to demand or receive the goods or services, and that the goods or services can’t be arbitrarily withdrawn.  Because Dovetail generates electricity that is sold into the wholesale energy market and used to provide energy to local utilities and customers and because Dovetail is also required to provide renewable energy credits that it cannot arbitrarily or unreasonable withdraw, the court concluded that the facility is a “public service.”

Factors determining whether Dovetail’s operation is also a matter of “public concern” that the court analyzed included whether Dovetail “serves such a substantial part of the public that its rates, charges and methods of operation become a public concern.” The court looked to Ohio’s incentives for renewable energy development, the lack of competition in the electric grid, the “heavy” regulatory environment for Dovetail, and its payment of public utility taxes as indications that Dovetail and the energy it produces are “public concerns.”  Meeting both the “public service” and “public concern” components, the appeals court agreed with the lower court’s ruling that Dovetail is a public utility and is exempt from Bath Township zoning regulations.

The Dovetail decision echoes an earlier decision in the Fifth Appellate District, Westfield Township v. Emerald Bioenergy, where the appellate court examined a biodigester on farmland in Morrow County and found that the township could not regulate it because it is a “public utility.”  The court cited factors such as Emerald’s provision of electric to the general public through interconnection agreements that distribute the energy to the energy grid, its lack of control over which customers receive or use the energy, its renewable energy credit requirements that can’t be arbitrarily or unreasonably withdrawn, its acceptance of waste from any customer, its governmental regulations and oversight, and its public utility taxes.  The court also noted that it need not address the “bioenergy” exemption because it found the enterprise to be a “public utility.”

Both townships in the Dovetail Energy and Emerald Bioenergy cases requested a review of the decision by the Ohio Supreme Court.  But the Supreme Court decided not to hear either case, although several of the justices dissented from that decision in each case.  Without further review by the Supreme Court, the appellate court decisions stand.

These cases are relevant for solar energy facilities under 50 MW.  Recall that S.B. 52 allows counties to prohibit or restrict solar facilities that are 50 MW or higher, but no other law addresses solar facilities with a single interconnection point to the energy grid that produce less than 50 MW.  Would such a facility be a “public utility” under the public utility exemption?  As with Dovetail and Emerald, a court would have to examine the solar facility and determine whether “the nature of its operation is a matter of public concern” and if “membership is indiscriminately and reasonably made available to the general public” as a public service.  If so, a county or township could not use zoning to prohibit or regulate the location or construction of the solar facility. 

Learn more about Senate Bill 52 in the Farm Office Energy Law Library at https://farmoffice.osu.edu/our-library/energy-law.

New laws and new resources on wind and solar development in Ohio

Large-scale wind and solar energy development has generated both opportunity and conflict across Ohio in recent years.  For several months, we monitored the progress of Senate Bill 52, a proposal intended to address community and landowner concerns about wind and solar facilities.  This past Monday marked the effective date for Senate Bill 52, passed by the Ohio Legislature in June, and we’ve been busy developing new resources to help explain the laws that are now effective. 

The legislation expands local involvement in the siting and approval of large-scale wind and solar facilities in several ways:

• County commissioners may designate “restricted areas” where such facilities may not locate.
• County citizens may petition for a referendum to approve or reject restricted area designations.
• Developers must hold a public meeting overviewing a proposed facility in the county where it would locate.
• County commissioners may prohibit or limit a proposed wind or solar facility after learning of it at the public meeting.
• County and township representatives must sit on the Ohio Power Siting Board committee that reviews facility applications.

The new laws also require wind and solar developers to submit decommissioning plans and performance bonds to address removal of a facility at the end of its lifetime. 

Our two law bulletins and video series on Senate Bill 52 are now available.  The resources work through each part of Senate Bill 52 and explain which types of facilities will be subject to the laws.  You’ll find the new resources in our energy law library on the Farm Office website at go.osu.edu/energylaw.

Ohio legislature passes solar and wind project siting and approval bill

It’s been a long and winding road to the Governor’s desk for Senate Bill 52, the controversial bill on siting and approval of large-scale wind and solar facilities in Ohio.  The bill generated opposition and concern from the outset, requiring a major overhaul early on.  A substitute bill passed the Senate on June 2 after six hearings and hundreds of witnesses testifying for and against the bill.  It took the House five hearings to pass a further revised version of the bill earlier this week, and the Senate agreed to those revisions the same day.  Now the bill awaits Governor DeWine’s action.  If the Governor signs the bill, it would become effective in 90 days.

S.B. 52 generates conflicting opinions on property rights and renewable energy.  It would grant counties and townships a voice in the siting and approval of large-scale wind and solar projects, allowing a community to go so far as to reject facility applications and prohibit facilities in identified restricted areas of the county.  Supporters of the bill say that new local authority would allow local residents to protect their individual property rights as well as the fate of the community.  On the other side, opponents claim that the bill interferes with the property rights of those who want to lease their land for solar and wind development and unfairly subjects renewable energy to stricter controls than other energy projects.

The bill itself is lengthy and a bit tedious but we’ve organized it into the following summary.  An important first step is to understand the types of projects subject to the law, so we begin with the definitions section of the bill.

Definitions – Ohio Revised Code 303.57

The bill defines several key terms used to identify the types of wind and solar projects and applications that would be subject to the new law:

• “Economically significant wind farm” means wind turbines and associated facilities with a single interconnection to the electrical grid and designed for, or capable of, operation at an aggregate capacity of five or more megawatts but less than fifty megawatts, excluding any such wind farm in operation on June 24, 2008 and one or more wind turbines and associated facilities that are primarily dedicated to providing electricity to a single customer at a single location and that are designed for, or capable of, operation at an aggregate capacity of less than twenty megawatts, as measured at the customer’s point of interconnection to the electrical grid.
• “Large wind farm” means an electric generating plant that consists of wind turbines and associated facilities with a single interconnection to the electrical grid that is a “major utility facility.”
• “Large solar facility” means an electric generating plant that consists of solar panels and associated facilities with a single interconnection to the electrical grid that is a major utility facility.
• “Utility facility” means all of the above.
• “Major utility facility” means (a) electric generating plant and associated facilities designed for, or capable of, operation at a capacity of fifty megawatts or more, (and also includes certain electric transmission lines and gas pipelines).
• “Material amendment” means an amendment to an existing utility facility certificate that changes its generation type, increases its nameplate capacity or changes the boundaries outside existing boundaries or that increase the number or height of wind turbines.

Designation of utility facility restricted areas in a county – ORC 303.58 and ORC 303.59

The bill would allow the county commissioners to designate “restricted areas” within the unincorporated parts of the county where economically significant wind farms, large wind farms, and large solar facilities may not be constructed.  

• The commissioners may take this action at a regular or special meeting.
• The commissioners must give public notice of the meeting and proposed restricted areas at least 30 days prior, including to all townships, school districts and municipalities within the proposed restricted areas.
• The restricted area designations shall not apply to utility facilities that were not prohibited by the commissioners in the county review under ORC 303.61, described below.
• The restricted area designations become effective 30 days after the commissioners adopt the resolution unless a petition for referendum, described below, is presented to the commissioners within 30 days of adoption.
• Once effective, a restricted area designation prohibits anyone from filing an application for a certificate or a material amendment to an existing certificate to construct, operate or maintain a utility facility in the restricted area.

Referendum on designation of utility facility restricted areas – ORC 303.59

If a county approves a restricted area, the bill sets up a referendum procedure to allow voters to have a say in the designation.  Residents may file a petition for referendum and request the county commissioners to submit the designation of a utility facility restricted area to a vote of the electors in the county.

• At least 8% of the total vote cast for governor in the most recent election must sign the petition.
• The petition must be presented to the commissioners within 30 days of the resolution adopted to designate the restricted areas.
• Within two weeks of receiving the petition and no less than 90 days prior to the election, the county commissioners must certify the petition to the county board of elections, who must verify the validity of the petition.
• The utility facility restricted area designation must be submitted to electors for approval or rejection at a special election on the day of the next primary or general election that occurs at least 120 days after the petition is filed.
• If a majority of the vote is in favor of the restricted area designation, the designation shall be effective immediately.

County review of proposed wind and solar utility facilities — ORC 303.61

Local residents and officials have expressed concerns that they’re the last to know of a proposed large-scale wind or solar development proposed for their community.  Under the bill, utility facilities must hold a public meeting in each county where the facility will be located within 90 to 300 days prior to applying for or making a material amendment to an application for a certificate from the Ohio Power Siting Board.

• The facility applicant must give a 14 day advance written notice of the public meeting to the county commissioners and to trustees of townships in which facility would be located.
• At the meeting, the facility applicant must present in written form the type of utility facility, its maximum nameplate capacity, and a map of its geographic boundaries.
• Up to 90 days after the public meeting, the county commissioners may adopt a resolution that prohibits the construction of the facility or limits its boundaries to a smaller part of the proposed location.  If the county commissioners do not prohibit or limit the facility, the applicant may proceed with the application.

Ohio Power Siting Board Composition – ORC 4906.021 to ORC 4906.025

The bill also responds to concerns that community members do not have a voice in the facility approval process overseen by Ohio’s Power Siting Board (OPSB).  For every utility facility application or material amendment to an application, the bill would require the OPSB to include two voting “ad hoc” members on the board to represent residents in the area where the facility is proposed.

• The ad hoc members shall be the chair of the township trustees and the president of the county commissioners in the township and county of the proposed location, or their elected official or resident designees, or a trustee and commissioner chosen by a vote of the trustees and commissioners if the application affects multiple townships and counties.
• An ad hoc member or the member’s immediate family members cannot have an interest in a lease or easement or any other beneficial interest with the applicant utility facility and cannot be an intervenor or have an immediate family member who is an intervenor in the OPSB proceeding.
• The ad hoc members must be designated no more than 30 days after the county or township is notified by the OPSB that the application has been submitted and meets statutory requirements.
• An ad hoc member may not vote on a resolution by its county commissioners or township trustees to intervene in the application proceeding.
• An ad hoc member is exempt from restrictions on ex parte communications with parties in the case but must disclose the date and participants of ex parte conversations and shall not disclose or use confidential information acquired in the course of official duties.

OPSB Authority – ORC 4901.101; ORC 4906.30

There are parameters in the bill for projects that the OPSB may not approve.  The OPSB may not grant a certificate for the construction, operation, and maintenance of or material amendment to an existing certificate for a utility facility in these situations:

• If the utility facility is prohibited by a restricted area designation.
• If the county commissioners have prohibited the utility facility by resolution.
  • Where the utility facility would be in multiple counties, the OPSB must modify a certificate to exclude the area of a county whose commissioners prohibited the facility.
• For any areas outside the boundaries of the utility facility that were changed by action of the county commissioners.
• If the facility has a nameplate capacity exceeding the capacity provided to the county commissioners, has a geographic area not completely within the boundaries provided to the county commissioners, or is a different type of generation than that provided to the county commissioners.

Decommissioning Plans for Utility Facilities – ORC 4906.21 to ORC 4906.212

The question of what happens to a facility when its production life ends has been another issue of voiced concern.  The bill establishes decommissioning procedures for facilities.  At least 60 days prior to commencement of construction of a utility facility, an applicant must submit a decommissioning plan for review and approval by the OPSB.

• A state registered professional engineer must prepare the plan, and the OPSB may reject the selected engineer.
• The plan must include:
  • A list of parties responsible for decommissioning of the utility facility.
  • A schedule of decommissioning activities, which cannot extend more than 12 months beyond the date the utility facility ceases operation.
  • Estimates of the full cost of decommissioning, including proper disposal of facility components and restoration of the land on which the facility is located to its pre-construction state, but not including salvage value of facility materials.
    • The estimate of the full cost of decommissioning a utility facility must be recalculated every five years by an engineer retained by the applicant.

Performance Bonds – ORC 4906.22 to ORC 4906.222

How to and who pays for facility decommissioning is also addressed in the bill.  Before beginning construction of a utility facility, the applicant must post a performance bond to ensure that funds are available for the decommissioning of the facility.

• The utility facility must name the OPSB as the bond oblige.
• The bond shall equal the estimate of decommissioning costs included in the facility’s decommissioning plan.
• The bond shall be updated every five years according to the most recent costs of decommissioning the facility and shall increase if estimated costs increase but shall not decrease if estimated costs decrease.

OPSB Provision of Approved Application — ORC 4906.31

Under the bill, local governments would formally know if a project receives OPSB approval.  The OPSB must provide a complete copy of an approved application for or material amendment to a certificate to each board of trustees and county commissioners in the townships and counties of the facility location.

• The copy must be provided within 3 days of the OPSB’s acceptance of the application and filing fee payment by the applicant.
• The copy may be in electronic or paper form.

Effect on Utility Facility Applications in Process – Sections 3, 4 and 5 of the Act

Many wind and solar facility projects are currently in process, so the bill addresses what happens to those projects should the law go into effect.

• The new law would apply to all applications for a certificate or a material amendment to an existing certificate for an economically significant wind farm or large wind farm that is not accepted by the OPSB within 30 days after the effective date of the legislation. 
  • An application for an economically significant wind farm or large wind farm that is not approved within 30 days after the effective date would be subject to review by the county commissioners, who would have 90 days after the effective date to review the application and act according to the provisions of the new law.
• If an application for a certificate or material amendment to a certificate for a utility facility has not been accepted by the OPSB as of the new law’s effective date, the OPSB must include “ad hoc” members in further OPSB proceedings on the application.
• The new law would not apply to an application for a certificate or material amendment to a certificate for a large solar facility that, as of the effective date of the new law, is in the new services queue of the PJM interconnection and regional transmission organization at the time the application is accepted by OPSB and the applicant has received a completed system impact study from PJM and paid its filing fee.
  • If the facility has multiple positions in the PJM new services queue, all queue position in effect on the law’s effective date are exempt from the new law.
  • If the facility submits a new queue position for an increase in its capacity interconnection rights, the change shall not subject the facility to the new law as long as the facility’s nameplate capacity does not increase.

We’ll keep an eye on the Governor to learn where S.B. 52’s road will end.  Read the full text of S.B. 52 and further information about it on the Ohio General Assembly’s website.

Ohio legislation on the move

The Ohio General Assembly is off and running in its new session.  Many bills that affect agriculture in Ohio are already on the move.  Here’s a summary of those that are gaining the most momentum or attention.

Tax Conformity Bill – S.B. 18 and H.B. 48.  The Senate has already passed its version of this bill, which conforms our state tax code with recent changes to the Internal Revenue Code made in the latest COVID-19 stimulus provisions of the Consolidated Appropriations Act.  Both the Senate and the House will also exempt forgiven Paycheck Protection Program second-draw loan proceeds from the Commercial Activity Tax.  The Senate version additionally exempts Bureau of Workers Compensation dividend rebates from the Commercial Activity Tax beginning in 2020, but the House bill does not.  Both bills include “emergency” language that would make the provisions effective in time for 2020 tax returns.

Beginning farmers tax credits –H.B. 95.  A slightly different version of this bill is returning after not passing in the last legislative session.  The bi-partisan bill aims to assist beginning farmers through several temporary income tax credits:

• Businesses that sell or rent agricultural assets such as land, animals, facilities or equipment to certified beginning farmers can receive a 5% income tax credit for sales, a 10% of gross rental income credit for cash rents, and 15% of gross rental income for share rents.
• Certified beginning farmers can receive an income tax credit equal to the cost of participating in a certified financial management program.

Beginning farmers, among other requirements, are those in or seeking entry into farming in Ohio within the last ten years who are not a partner, member or shareholder with the owner of the agricultural assets and who have a net worth of less than $800,000 in 2021, which adjusts for inflation in subsequent years.  The House Agriculture and Conservation Committee will discuss the bill at its meeting on February 16.

Wind and solar facilities – S.B. 52.  In addition to revising setback and safety specifications for wind turbines, this proposal would amend Ohio township zoning law to establish a referendum process for large wind and solar facility certificates.  The bill would require a person applying for a certificate for a large wind or solar facility to notify the township trustees and share details of the proposed facility.  That notification sets up opportunities for the township trustees or residents of the township to object to the application and submit the proposed application to a vote of township residents.  A certificate would not take effect unless approved by a majority of the voters.  A first hearing on S.B. 52 will be held on Tuesday, February 16 before the Senate Energy and Public Utilities Committee.

Grants for broadband services – H.B. 2 and S.B. 8.  The Senate passed its version of this bill last week, which sets up a $20 million competitive grant program for broadband providers to extend broadband services throughout the state.  The proposal would also allow broadband providers to use electric cooperative easements and poles, subject to procedures and restrictions.  The bill had its second hearing before the House Finance Committee last week.

Eminent domain – H.B. 63.   Based on a similar bill that didn’t pass last session, this bill changes eminent domain law in regard to property taken for the use of recreational trails, which include public trails used for hiking, bicycling, horseback riding, ski touring, canoeing and other non-motorized recreational travel.  H.B. 63 would allow a landowner to submit a written request asking a municipality or township to veto the use of eminent domain for a recreational trail within its borders.   The bill would also allow a landowner to object to a use of eminent domain for any purpose at any time prior to a court order for the taking, rather than limiting that time period to ten days as in current law.   The bill had its first hearing before the House Civil Justice Committee last week.

Minimum wage increases.  S. B. 51 and H.B. 69.  Bills on each side of the General Assembly propose gradually increasing the state minimum wage to $15, but have different paths for reaching that amount.  S.B. 51 proposes increasing the wage to $12/hour in 2022, followed by $1/hour increases each year and reaching $15 by 2025, which is when a federal bill proposes to establish the $15 minimum wage.  H.B. 69 begins at $10/hour in 2022 with $1/hour increases annually, reaching $15 in 2027.  S.B. 51 was referred last week to the Workforce and Higher Education Committee and H.B. 69 was referred to the Commerce and Labor Committee.

The Ohio Ag Law Blog–The Ag Law Harvest

Written by Ellen Essman and Peggy Hall

The holidays are almost here, 2019 is almost over, but the world of ag law isn’t taking a break.  From cannabidiol, to Ohio bills on water quality and wind power, to a cage-free egg law in Michigan, here’s the latest roundup of agricultural law news you may want to know:

FDA warns companies about cannabidiol products. If you’ve been following the hemp saga unfold over the past year, you know that the Food and Drug Administration (FDA) has been contemplating what to do with cannabidiol, or CBD from derived hemp products.  In addition to manufacturing standards, FDA has also considered how CBD products are marketed and labeled.  Although FDA has issued no official rules on CBD marketing and labeling, the agency has warned a number of companies that their marketing of CBD violates the Federal Food, Drug, and Cosmetic Act (FD&C Act). On November 25, FDA sent warning letters to 15 companies.  FDA asserts that the companies “are using product webpages, online stores and social media to market CBD products in interstate commerce in ways that violate the FD&C Act.”  In particular, FDA is apprehensive about those companies who market CBD products in ways that claim they can treat diseases or be used therapeutically for humans and animals.  Since CBD has not been approved by FDA or found safe for these uses, companies cannot make such claims.  You can see FDA’s news release for more information and for the list of companies.

It won’t be as difficult for financial institutions to serve hemp related businesses.  Federal agencies and state bank regulators released a statement clarifying what is required of banks when hemp businesses are customers.  Since hemp was removed from the federal list of controlled substances, banks no longer have to file a Suspicious Activity Report on every customer involved in growth or cultivation of hemp just because they grow hemp.  This action will make it easier for those legally cultivating hemp to work with banks and obtain loans for their farms.  For more information, the agencies’ press release is available here.

Ohio House considers the Senate’s water quality bill.  Ohio’s House Energy & Natural Resources Committee held a hearing on Senate Bill 2 just last week.  The bill would implement a Statewide Watershed and Planning Program through the Ohio Department of Agriculture (ODA). Under the bill, ODA would be charged with categorizing watersheds in Ohio and appointing coordinators for each of the watersheds.  ODA and the coordinators would work closely with soil and water conservation districts to manage watersheds.  Ag groups such as the Sheep Improvement Association, the Cattleman’s Association, the Pork Council, the Dairy Producers Association, and the Poultry Association testified in favor of SB 2.

Ohio House committee debates wind bill.  The House Energy & Natural Resources
Committee was busy last week—in addition to SB 2, they also discussed House Bill 401.  In the simplest terms, if passed, HB 401 would allow townships to hold a referendum on approved wind projects.  This means that with a vote, townships could overturn decisions made by the Ohio Power and Siting Board (OPSB).  In the committee hearing, wind industry representatives argued that such a referendum would be harmful, since it would overturn OPSB decisions after companies have already spent a great deal of money to be approved by the Board.  They also argued that the bill singles out the wind industry and does not allow referendums on other energy projects.  Republican committee members signaled that they may be willing to revise the language of HB 401 to allow a referendum before OPSB decisions.

Iowa’s ag-gag law is paused.  In May, we wrote about Iowa’s new ag-gag law, which was the state’s second attempt to ban undercover whistleblowers and journalists from secretly filming or recording at livestock production facilities.  In response, numerous animal rights groups sued the state, claiming that the law unconstitutionally prevents their speech based on content and viewpoint.  On December 2, the U.S. District Court for the Southern District of Iowa issued a preliminary injunction, which means that the state will not be able to enforce the ag-gag law while the lawsuit against it is being considered. The preliminary injunction can be found here.

Cage free eggs coming to Michigan in 2024. Michigan lawmakers recently passed Senate Bill 174, which, among other things, will require that all birds producing eggs both in and out of the state be housed in “cage-free” facilities by 2024.  The cage-free facilities will have to allow hens to roam unrestricted with the exception of exterior walls, and some types of fencing to contain the birds.  In an indoor facility, the farmer must be able to stand in the hens’ usable floor space while caring for them.  In addition, the facilities must have enrichments for hens such as scratch areas, perches, nest boxes, and dust bathing areas. Michigan joins California, Oregon, Rhode Island, and Washington in banning non-cage-free eggs.  Note that Michigan’s law will apply to Ohio egg producers who sell eggs to buyers in Michigan.

Case watch:  hearing set in Lake Erie Bill of Rights case.   The court has set a January 28, 2020 hearing date for the slow moving federal lawsuit challenging the Lake Erie Bill of Rights (LEBOR) enacted by Toledo voters in February.  The hearing will likely focus on several motions to dismiss the case filed by the parties on both sides of the controversy, but Judge Zouhary indicated that he’ll set the agenda for the hearing prior to its date.  Drewes Farm Partnership filed the federal lawsuit against the City of Toledo in February, claiming that LEBOR is unconstitutional and violates several Ohio laws.  The State of Ohio was permitted to join the farm as plaintiffs in the case, but the court denied motions by Toledoans for Safe Water and the Lake Erie Ecosystem to join as defendants in the case.   For more on the LEBOR lawsuit, refer to this post and this post.  For our explanation of LEBOR, see this bulletin.

Stay tuned to the Ohio Ag Law Blog as we continue to track these and other developments in agricultural law through the holidays and beyond.

The Weekend Read: Ohio Case Law Update

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

This weekend, as you enjoy your morning cup of coffee and find yourself wondering what’s the news in our court system, look no further than this blog post.  Every now and then there’s a new court opinion related to agricultural law that peaks our interest and makes us want to share a summary of what happened.  This week we read cases about the federal Takings Clause, wind energy, and oil and gas rights.  Here are the stories:

• A property owner may bring a claim in federal court under the Fifth Amendment when the government has violated the Takings Clause by taking property without just compensation.  This case involved a township ordinance requiring all cemeteries to be held open and accessible to the general public during daylight hours.  A property owner with a small family graveyard was notified that she was violating the ordinance.  The property owner filed suit in state court arguing that the ordinance constituted a taking of her property, but did not seek compensation.  The township responded by saying it would withdraw the notice of violation and not enforce the ordinance against her.  The state court said that the matter was therefore resolved, but the property owner was not satisfied with that decision.  She decided to bring a takings claim in federal court.

Before this decision, there was a roadblock to bringing such claim.  Lower courts had read a previous Supreme Court decision to say that if a state or local government commits a taking, the property owner would first have to seek a remedy through the state’s adverse condemnation procedure before going to federal court.  But in doing so, the property owner would actually not have a chance to bring the claim in federal court because the federal court would have to give full faith and credit to the state court decision.  At first, that seemed like what would happen to the property owner because the state court had decided that the issue was moot since the township had agreed not to enforce the ordinance against her.  But the U.S. Supreme Court cleared the way for the property owner by taking the rare action of overruling its prior precedent.  Knick v. Township of Scott, Pennsylvania, was not an Ohio court case, but rather one that made its way all the way up to the U.S. Supreme Court.  To read the case, click HERE.

The final opinion handed down by the justices is certainly important, but it is also notable for Ohio because the Ohio Farm Bureau Federation (OFBF) submitted an amicus brief in support of the property owner through its legal counsel, Vorys Sater Seymour and Pease, LLP of Columbus.  The brief cited examples in Ohio showing that the Supreme Court’s prior precedent was causing problems for Ohio property owners by limiting their access to federal courts in Fifth Amendment takings claims.  OFBF has noted that this was the first time it had submitted an amicus brief to the U.S. Supreme Court.

• Ohio Power Siting Board’s approval of new wind-turbine models in facility’s certificate does not constitute an amendment to the certificate for the purposes of triggering current turbine-setback requirements.  In 2014, the Ohio Power Siting Board approved an application by Greenwich Windpark to construct a wind farm in Huron County with up to 25 wind turbines.  In the initial application, all of the wind turbines would have used the same model of turbine.  Just over a year after the application was approved, the wind farm developer applied for an amendment to add three additional models to the approved wind turbine model list, noting that the technology had advanced since its initial application.  Two of the three newer models would be larger than the originally planned model, but would occupy the same locations and would comply with the minimum setback requirements at the time the application was approved.

The issue involved whether the new setback requirements, which were put in place by the state between the initial approval and the requested change, should apply.  An amendment to a certificate would trigger the current wind turbine setback requirements.  Greenwich Windpark wanted the less restrictive setback requirements in their initial application to still apply to the newer models, but a local group wanted the more restrictive setback requirements to apply.  The Ohio Power Siting Board said that adding the new wind turbine models would not be an amendment, and would not trigger the more restrictive setbacks.  The Ohio Supreme Court sided with the Ohio Power Siting Board, explaining that the Ohio General Assembly wanted the Ohio Power Siting Board to have broad authority to regulate wind turbines.  This case is cited as In re Application of 6011 Greenwich Winkpark, L.L.C., 2019-Ohio-2406, and is available to read on the Ohio Supreme Court’s website HERE.

• Children claiming to be heirs of reserved oil and gas rights are in privity with previous owners of the interest when connected by an auditor’s deed specifically mentioning those interests.  The issue was whether children claiming their father’s oil and gas interests were blocked by the legal doctrine of issue preclusion from obtaining clear title to their interest when a previous Ohio Dormant Mineral Act (ODMA) lawsuit quieted title to mineral interests underlying their claim.  This preclusion would be possible because the previous owners’ interests formed the basis of the father’s interest.  Even though they were not named in the previous ODMA lawsuit, by virtue of being in privity, or legally connected, to the previous owners, the children would be bound by the previous lawsuit because the ODMA lawsuit cleared the previous owners’ interests along with any interests in their successors and assigns.  Ultimately the court found that because the children stood in their father’s shoes, and his claim would be linked to the previous owners’ claims in the land, the previous ODMA lawsuit binds the children.  This had the effect of eliminating the children’s claims in the oil and gas rights.  This case is cited as Winland v. Christman, 2019-Ohio-2408 (7th Dist.), and is available to read on the Ohio Supreme Court’s website HERE.

The Ag Law Harvest

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

As our readers can probably tell by now, there has been a lot happening in the agricultural law world over the past couple of weeks.  From the Lake Erie Bill of Rights going on the ballot in Toledo to a new court decision on wedding barns, we’ve done our best to keep you in the know.  While the legislative sessions in Congress and the Ohio General Assembly have started to shift into a higher gear, covering those bills will take up a lot of space, so be on the lookout for a legislative update soon.

For now, here’s our latest gathering of agricultural law news that you may want to know:

Yep, more WOTUS.  The U.S. EPA has announced new public hearings regarding its proposed revised definition of Waters of the United States.  The hearing will be held on Wednesday, February 27th and Thursday, February 28th at the Reardon Convention Center in Kansas City, Kansas.  For those who wish to provide input, but are unable to make the trip, the U.S. EPA will accept written comments from the public online at http://www.regulations.gov with the docket ID number: EPA-HQ-OW-2018-0149.  The online comment portal will accept new submissions until April 14th.  The text of the proposed rule, which the U.S. EPA released just in time for Valentine’s Day, is available on the online comment portal page as well as in the Federal Register.  For more information about either attending the meeting or submitting a comment to the U.S. EPA, visit the Federal Register’s webpage here.  For more information about WOTUS rulemaking, see our most recent WOTUS blog post, or visit the U.S. EPA’s webpage here.

Conservation funding for federal lands could be restored under U.S. Senate bill.  In a sign of bipartisanship, the U.S. Senate passed the National Resources Management Act by a vote of 92-8.  If the House approves and it receives the President’s signature, the bill would modify a number laws addressing the management and conservation of federal lands, and would also restore funding to the Land and Water Conservation Fund, which had expired last fall.  This fund primarily supports the protection of federal public lands and waters, but it also promotes voluntary conservation on private lands and awards grants to states for the acquisition and development of parks and outdoor recreation sites.  Also in the bill are two specific changes of note for Ohio.  First, section 6004(c) of the bill would increase the cap on total spending for the Ohio & Erie National Heritage Canalway from $10 million to $20 million.  Second, section 2502 of the bill would extend the Lewis and Clark National Historic Trail from Illinois to Pennsylvania, which will include portions in Ohio.  You can read the full text of the bill and see the official analyses on Congress’s website here.

FFA charter amendments approved by Congress and the President.  Citing issues arising from the U.S. Department of Education’s not filling seats on the National FFA Board of Directors, the National FFA sought an amendment to its charter.  Congress originally granted the charter in 1950, and any changes to the charter must be done so by an act of Congress.  One of the major changes sought by National FFA was a reduction in the number of seats on the board of directors that must be appointed by the Department of Education.  By not filling all of the seats on the Board of Directors, the National FFA faced difficulty making decisions because it often could not meet its quorum for meetings.  The new amendments reduce the organization’s reliance on an appointment to its board of directors by the U.S. Department of Education, which increases the organization’s ability to self-govern.  You can read the text of the bill on Congress’s website here, or visit the National FFA’s webpage on frequently asked questions about the charter revision here.

The PACT Act is back.  The Prevention of Animal Cruelty and Torture Act has been reintroduced into the U.S. House of Representatives.  The act would allow for significant fines and up to seven years in prison for those convicted of animal crushing, creating animal crushing videos, or distributing animal crushing videos.  The bill defines crushing as “actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.”  However, the bill does contain exceptions for conduct that is related to “customary and normal veterinary, agricultural husbandry, or other animal management practice[s];” “the slaughter of animals for food;” legal hunting, trapping, and fishing activities; research; defense of a human; and euthanizing an animal.  Many in the agriculture community have opposed the bill, arguing that it is duplicative in light of animal protections created by the states and that it risks courts and juries interpreting the language too broadly.  At this time, the bill has only been introduced in the U.S. House and referred to the Judiciary Committee.

Nebraska wind farms sue to enforce contract and keep utility from flying off into the sunset.  Three Nebraska windfarms in a power supply contract with the Nebraska Public Power District (NPPD) have filed suit to prevent the utility from backing out of the contract.  The wind farms filed a complaint in federal court in Nebraska on January 30th, alleging that NPPD expressed its intention to terminate a power purchase agreement, and that doing so would be wrongful.  The complaint explains NPPD’s position that the wind farms materially violated the contract by investing in other businesses and operations.  The plaintiffs disagree that there was a breach, but say that even if there was, NPPD cannot terminate the contract because it knew of the transactions.  The plaintiffs also note that NPPD has eminent domain power.  They argue that by terminating the contract, NPPD knows that the wind farms will likely enter default with creditors.  This could allow NPPD to acquire the rights of the wind farms through a foreclosure sale or eminent domain.  To prevent NPPD from terminating the contract, the parties requested, and were granted, a temporary restraining order until March 1st that requires NPPD to honor the contract.  The case is cited as Laredo Ridge Wind, LLC v. Nebraska Pub. Power Dist., No. 8:19-cv-45 (D. Neb.).

Wisconsin Supreme Court asked to decide scope of agency power to regulate agriculture.  A Wisconsin court of appeals has certified two cases to the Wisconsin Supreme Court, asking the court to determine the extent of the Wisconsin Department of Natural Resource’s authority to regulate agriculture in order to protect groundwater.  A certification represents a lower court seeking guidance on an issue that the lower court believes it is not in the best position to decide without knowing what the higher court thinks.  These cases are important for Wisconsin because they pertain to a law passed in 2011 that restrained authority of state agencies to act beyond express grants of authority by the state legislature.  Specifically, the cases ask whether the Wisconsin DNR can impose conditions on issuing a permit beyond the conditions stated in a statute.  The affected parties in the cases range from dairy farms to manufacturers and from food processors to municipal water utilities.  Environmental groups hope that state agencies may take a more expansive look at environmental impacts when reviewing permit applications.  The two certification orders are available here and here.

The Ag Law Harvest

Written by: Evin Bachelor, Law Fellow

Welcome to 2019 from all of us at the OSU Extension Agricultural and Resource Law Program!  With a new Congress, a new Ohio General Assembly, and a new slate of leaders atop Ohio’s executive offices, we are expecting a flurry of activity in the new year.  Our resolution this year is to keep you in the know about agricultural law news, and maybe find some time to exercise.

Here’s our latest gathering of agricultural law news that you may want to know:

U.S. Supreme Court declines to hear state livestock standard lawsuits.  In a previous blog post, we noted that California and Massachusetts had adopted laws that would require sellers of certain meats and eggs to follow heightened animal care standards in order to sell those products within California or Massachusetts.  Thirteen states, led by Indiana, quickly sued Massachusetts to stop its law from taking effect.  Missouri led another group of thirteen states in suing California.

Indiana and Missouri had attempted to have their cases brought directly before the U.S. Supreme Court, arguing that the U.S. Supreme Court has “original jurisdiction” over claims between states.  After the states filed their arguments with the Supreme Court, the justices asked the U.S. Solicitor General whether he believed these cases were appropriate for the Court’s original jurisdiction.  The Solicitor General filed briefs in the Indiana v. Massachusetts and Missouri v. California maters, and suggested that the Supreme Court should not exercise original jurisdiction because, among other things, the states lack the proper standing to sue.  Here, this argument essentially means that the resulting harm from enforcement of the statutes would not harm the states as states, but only some of their citizens, and that those citizens may still sue California or Massachusetts for their individualized harm.

The Supreme Court took the position of the Solicitor General and denied the requests of Indiana and Missouri to have the cases brought before the Court.  Any further action will have to be taken through the lower courts.  For more information about the Missouri v. California matter as argued to the Supreme Court, click here.  For more information about the Indiana v. Massachusetts matter as argued to the Supreme Court, click here.

USDA not required to adopt Obama-era “Farmer Fair Practice Rules,” according to federal appeals court.  In December 2016, the USDA published the Farmer Fair Practices Rules as an interim final rule, and published two amendments to its rules that deal with the Packers and Stockyards Act.  The amendments addressed the ease of bringing a lawsuit for unfair and uncompetitive business practices under the Packers and Stockyards Act.  The rule was set to take effect at the end of February 2017, although the amendments were only proposals that had not fully gone through the required notice and comment process.  In early February 2017, citing the President’s regulatory freeze, and arguing that the rule would cause more litigation and confusion, the USDA postponed, and ultimately withdrew, the rule.  The USDA also did not take action on the two proposed amendments.  The Organization for Competitive Markets sued to stop the USDA from withdrawing the interim final rule, and to compel the USDA to promulgate the two amendments, arguing that the 2008 Farm Bill requires action by the USDA.

On December 21, 2018, the United States Court of Appeals for the Eighth Circuit denied the Organization for Competitive Markets’ request for review.  The court explained that the USDA did not fail to fulfill its mandate, describing Congress’s language as ambiguous.  Further, the court said that the USDA’s withdrawal of the interim final rule followed the proper notice and comment procedures.  Ultimately the court believed that Congress has been monitoring this issue and if Congress wishes for a more specific action, then Congress should act.  The court’s opinion in Organization for Competitive Markets v. USDA, No. 17-3723 (8th Cir. 2018) is available here.

Funding for National Weather Service and National Algal Bloom Program receives President’s signature.  On Monday, January 7th, President Trump signed Senate Bill 2200, which passed during the previous Congress.  The bill increases funding for the National Weather Service’s agriculture related weather monitoring and forecasting from $26.5 million in 2019 to $28.5 million by 2023.  The Office of Oceanic and Atmospheric Research, the research arm of the National Oceanic and Atmospheric Administration (NOAA), will see an increase in funding from $136.5 million in 2019 to $154 million by 2023.  The bill also instructs NOAA to “plan the procurement of future data sources and satellite architectures,” essentially instructing NOAA to think about cost-effective ways to upgrade weather monitoring systems both on the ground and in space.  The National Integrated Drought Information System will also see an increase in funding from $13.5 million this year to $14.5 million by 2023.  The program is to use some of the funding to “develop a strategy for a national coordinated soil moisture monitoring network” within the next year.  Finally, the bill also reauthorizes $20.5 million each year through 2023 for relief from hypoxia or harmful algal blooms “of national significance,” which the bill defines as “a hypoxia or harmful algal bloom event that has had or will likely have a significant detrimental environmental, economic, subsistence use, or public health impact on an affected state.”  For the text of the act, visit Congress’s webpage here.

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Ohio Case Law Update

• Ohio Power Citing Board cannot extend construction certificate for wind farm by simple motion, but must follow amendment process, according to the Ohio Supreme Court. Black Fork Wind Energy filed an application with the Ohio Power Citing Board (“the board”) to construct a wind farm in Crawford and Richland Counties in 2011, and the board approved the application in January 2012.  Black Fork had five years, until January 2017, to begin construction on the project.  The project was delayed due to a lawsuit challenging the project, and Black Fork sought an additional two years to begin construction.  The board granted Black Fork’s motion without a full application to amend and investigation.  The board argued that it regularly grants such extensions and that extensions do not amount to an “amendment” that would require an application because an extension is not “a proposed change to the facility.”  The majority of the Ohio Supreme Court disagreed, and held that the board acted improperly.  Because the commencement of construction was a term in the certificate, granting an extension amounts to an amendment in the certificate.  As such, the board should not have acted on the request without requiring an application for amendment and investigation.  The Court reversed the order and remanded the issue back for further proceedings.  Justices Fischer and O’Donnell dissented, arguing that the Court should defer to the board in how it reads “amendment” under Ohio Revised Code § 4906.07(B).  For the Ohio Supreme Court’s opinion from In re application of Black Ford Wind Energy, Slip Opinion No. 2018-Ohio-5206, click here.
• Creditors must first seek payment of unpaid bills from estate of deceased spouse before attempting to collect from a surviving spouse, according to the Ohio Supreme Court. In Embassy Healthcare v. Bell, Mr. Robert Bell received care at a nursing home operated by Embassy Healthcare.  Embassy sent a letter for collection to his wife, Mrs. Bell, six months and three days after he had passed away, but no estate for Mr. Bell had been opened.  In Ohio, creditors have six months to request an estate administrator be appointed in order to collect a debt from an estate, but Embassy did not make such a request.  Since it missed the six month statute of limitations, Embassy tried to seek collection from Mrs. Bell under Ohio’s “necessaries” law, as provided in Ohio Revised Code § 03.  This law requires spouses to support their spouse with money, property, or labor if their spouse cannot do so on their own; however, the Ohio Supreme Court has said that a person is responsible for their own debts first, and that under this statute their spouse will only be liable if that person cannot pay for their debts.  In this case, the Ohio Supreme Court said that Embassy had to seek payment from Mr. Bell’s estate before it could require payment from his spouse.  Since the statute of limitations had run to bring a claim against Mr. Bell’s estate, Embassy would be unable to demonstrate that Mr. Bell’s estate could not cover his personal debts.  Therefore, Embassy would not be able to prove an essential requirement of Ohio’s necessaries law, and cannot recover from his spouse.  For the Ohio Supreme Court’s opinion in Embassy Healthcare v. Bell, Slip Opinion No. 2018-Ohio-4912, click here.
• Trial court may determine width of easement as a question of fact, and will not be reversed by appellate court unless the evidence shows it clearly lost its way, according to Ohio Court of Appeals for the 7th District. A property owner signed an express easement to a neighbor so that the neighbor could cross the property owner’s land to access the public road.  The written easement did not specify the width of the easement, but the neighbor cleared a path approximately 10 feet wide.  The property owner eventually sold the property, and the new owner laid gravel on the path from the public road to their garage, and the neighbor extended the gravel all the way to his own property.  Disputes later arose regarding the easement, and the neighbor sued the new property owners for breach of easement, and sought a declaration that the easement was thirty feet wide.  Ohio case law allows trial courts to establish the dimensions of an easement if the writing does not specify any dimensions if the trial court examines: 1) the language of the granting document, 2) the context of the transaction, and 3) the purpose of the easement.  The trial court found the easement to be ten feet wide.  The neighbor appealed, but the Seventh District found the trial court’s decision to be reasonable given the evidence and Ohio law.  Since the width of an easement is a question of fact, an appellate court will not reverse the trial court absent evidence that the trial court clearly lost its way given the weight of the evidence.  For the Seventh Districts’ opinion in Cliffs and Creek, LLC v. Swallie, 2018-Ohio-5410 (7th Dist.), click here.

The Ag Law Harvest

Written by: Evin Bachelor, Law Fellow

The midterm elections are over, and Thanksgiving is upon us.  A lot of activity is expected out of Washington and Columbus as the legislative sessions wind up.  The OSU Extension Agricultural and Resource Law team will continue to keep you up to date on the legal issues affecting agriculture as we enter into the holiday season.

Here’s our gathering of ag law news you may want to know:

State of Ohio sued over wind turbine setbacks.  Four farmers in Paulding County have joined with The Mid-Atlantic Renewable Energy Coalition to sue the State of Ohio over wind turbine setbacks added to the 2014 biennial budget that some allege curtailed wind energy development in Ohio.  In that budget bill, lawmakers included provisions late in the lawmaking process to amend Ohio Revised Code § 4906.20, which establishes the setback requirements for wind turbines.  Those provisions more than doubled the distance that wind turbines must be located away from the nearest residential structures.  The plaintiffs in this lawsuit allege that including these restrictions in the budget bill violated the single-subject provisions of the Ohio Constitution because the setbacks lack a “common purpose or relationship” to the rest of the budget bill.  On this issue, the Ohio Supreme Court said in the case In re Nowak (cited as 2004-Ohio-6777) that the single-subject rule is a requirement that legislators must abide by, but that only a “manifestly gross and fraudulent” violation will result in the law being struck down.  The plaintiff’s complaint is available here.  Stay tuned to the Harvest for updates.

Department of Labor proposes rule requiring H-2A advertisements be posted online.  The U.S. Department of Labor (DOL) published a notice of proposed rulemaking in the Federal Register on November 9th that would change how employers must advertise available positions before they may obtain H-2A worker permits.  H-2A permits are work visas for temporary agricultural workers who are non-U.S. citizens.  Currently, employers must advertise work in a local newspaper of general circulation for at least two consecutive days, one of which must be a Sunday.  This requirement is located in the Code of Federal Regulations at 20 C.F.R. § 655.151.  The DOL now proposes to modernize the recruitment advertising rule by requiring employers to post the jobs online instead of in print.  The DOL’s notice explained that it believes online postings would more effectively and efficiently give U.S. workers notice of job opportunities.  Further, the notice explained that the DOL intends to only require online advertisements, which would render newspaper advertisements unnecessary.  U.S. Secretary of Agriculture Sonny Perdue issued a press release in support of the DOL’s proposal.  The public may submit comments to the DOL about the proposed rule.  Those wishing to comment may do so until December 10th, 2018, by visiting the proposed rule’s webpage in the Federal Register.

LLC agreement to adjust member financial contributions must be in writing.  The Ohio Fourth District Court of Appeals recently affirmed a decision finding a verbal agreement to adjust contributions between members of a Limited Liability Company (LLC) to be unenforceable, even if the other party admitted to making the statements.  Ohio Revised Code § 1715.09(B) requires a signed writing in order to enforce a “promise by a member to contribute to the limited liability company,” and therefore the court could not enforce an oral agreement to adjust contributions.  The Fourth District Court of Appeals heard the case of Gardner v. Paxton, which was originally originally filed in the Washington County Court of Common Pleas.  The plaintiff, Mr. Gardener, argued that his business partner breached an agreement to share in LLC profits and losses equally.  In order to share equally, both parties would have needed to adjust their contributions, but Mr. Paxton only made verbal offers that were never reduced to writing.  Because there was no writing, Mr. Paxton’s statements were not enforceable by his business associate against him.

Ohio legislation on the move:

The Ohio General Assembly has returned from the midterm elections with a potentially busy lame duck session ahead of it.  Already a number of bills that we have been monitoring have seen activity in their respective committees.

• Ohio Senate Agriculture Committee held first hearing on multi-parcel auction bill. State senators heard testimony on House Bill 480 last Tuesday, November 13th.  The bill would authorize the Ohio Department of Agriculture to regulate multi-parcel auctions, which are currently not specifically addressed in the Ohio Revised Code.  The bill also defines “multi-parcel auction,” saying such an auction is one involving real or personal property in which multiple parcels or lots are offered for sale in part or in whole.  The bill would also establish certain advertising requirements.  The bill’s primary sponsor, Representative Brian Hill of Zanesville, says that he introduced the bill in an effort to recognize by statute what auctioneers are already doing, and to do so without interrupting the industry.  The bill passed the Ohio House of Representatives 93-0 in June.  For more information on the legislation, visit the House Bill 480 page on Ohio General Assembly’s website or view this bill analysis prepared by the Ohio Legislative Service Commission.