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The Ohio family continues to fight against the construction of pipelines on their farmland

Bailey's family
Ohio’s Third District Court of Appeals is reviewing significant domain cases involving protected farmland in Union County. Family members and supporters gathered on November 22 to hear oral arguments. Pictured in the front row are farmland owners Patrick Bailey, Charles Renner and Don Bailey. Seated in the second row are Ohio Farm Bureau Policy Advisor Leah Curtis and Laura Curliss, an attorney representing the Bailey and Renner families. (Photo by Gail Keck)

LIMA, Ohio — A Union County farming family continues to oppose the construction of a natural gas pipeline through their protected farmland in a case in the Ohio Third Circuit Court of Appeals. In the meantime, administrative changes at the Ohio Department of Agriculture and proposed changes to Ohio’s major domain laws could affect similar cases in the future.

On November 22, the Third Circuit Court of Appeals heard hearings in two related cases, Columbia Gas of Ohio, Inc. v. Patrick E. Bailey, et al. and Columbia Gas of Ohio, Inc. v. Don Bailey Jr., et al. These cases are appealing an April ruling by the Union County Common Pleas Court that denied Columbia Gas’ application to use a significant area for pipeline construction.

The lower court dismissed Columbia Gas’s significant domain petition, citing language inconsistencies in the documents presented to the court and reviewed by the Ohio Power Siting Board. A 25-foot easement that was marked as “temporary” before the site authority was listed as “perpetual” in the eminent domain application to the court.

vocations

In the district court appeal, the Bailey family is asking the court to uphold the lower court’s dismissal of the application for a significant domain based on the conflicting descriptions of the perpetual/temporary easement.

The Court of Appeals has already ruled in a case involving a neighboring farm, Columbia Gas of Ohio, Inc. v. Phelps Preferred Investments, LLC. The Phelps case involved the same conflicting easement descriptions. In July, the Court of Appeals upheld the lower court’s rejection of the significant domain application.

However, the Phelps case differs from that of the Baileys in that Phelps’ farmland is not protected by agensation. The Baileys want the Court of Appeals to go a step further in their cases to review the permit and deny the significant domain application because the permit constitutes “prior public use.”

In the Union County Court case, the judge took the opposite position, finding that the existing consent did not prevent a significant domain lawsuit. In support of the Baileys’ position as the case progressed, the Ohio Farm Bureau, the Union County Farm Bureau and the Coalition of Ohio Land Trusts jointly filed a brief with the Circuit Court of Appeals. The brief contained arguments against granting the significant domain application, citing the state’s doctrine of public use.

“The lower court failed to adequately recognize that the proposed acquisition by Columbia Gas would destroy and seriously impede prior public use of the agricultural easement at issue in this case,” the brief said.

ODA participation

The Bailey family’s surviving farmland was protected by an agricultural easement in 2003 from Don Bailey’s uncle Arno Renner, who owned the land at the time. Renner donated the rural easements to ODA.

The ODA’s response to significant domain threats to protected farmland has varied over time, Don Bailey said. In 2005, Ohio Department of Agriculture director Fred Dailey opposed the installation of a sanitary sewer line through the surviving Renner farm, and that line was rerouted. The ODA defended the easement again a few years later against a proposed aqueduct. More recently, however, the ODA, now headed by Director Dorothy Pelanda, has not opposed the construction of the Columbia Gas Pipeline.

The leadership of the ODA will change again in 2023, as Pelanda announced her retirement effective December 31. A new director for the department has not yet been named.

In 2023, the ODA’s Office of Farmland Preservation will also use an updated language of deeds of relief that more accurately identifies permissible uses of protected land.

Laura Curliss, an attorney who works with the Bailey family, told the Farm and Dairy that these changes put the program further on the wrong track.

“Our easements, which are paid for with public money, are becoming more and more permissive,” she said.

Another concern, Curliss said, is that the income tax benefits some landowners receive from farming donations could be at risk. In some other parts of the country, syndicates have bought farmland and then used inflated values ​​for relief so syndicate members could claim charitable tax deductions. This syndication system is used by investors to match revenue from other sources, Curliss said. As a result, The US Internal Revenue Service is taking a closer look at the charitable deductions claimed for social donations.

Expanding permitted land uses through land use rights makes the farmland conservation program less useful, Curliss said. “The IRS will address this fairly soon.”

Legislative action

A bill introduced in the Ohio House of Representatives earlier this year proposes several amendments to Ohio law that would benefit Ohio landowners, whether they have land protected by high school diploma rights or not.

House Bill 698 was introduced in June and it is unlikely that much will be done before the end of the legislature on December 21st. However, sponsors and advocates are preparing to reintroduce similar legislation during the next session.

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

Some of the proposed changes would make it easier for property owners to recover legal fees when courts rule in their favor in important domain cases. The bill also proposes changes that would help property owners receive compensation when property is appropriated for public use without compensation.

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