OSU Extension Agricultural Law Newsletter
September 1999

Animal Feeding Operations

The U.S. EPA and USDA issued a guideline "Strategy for Animal Feeding Operations" which will likely lead to changes in Ohio's Permit-to-Install (PTI) program for livestock operators. The Strategy for AFOs urges increased regulation of AFOs which are less than 1,000 animal units (1,000 feeder cattle, 700 dairy cattle, 2500 hogs, 100,000 chickens). Even small operations could be affected if "unacceptable conditions" exist, such as discharges directly into a waterway or a stream running through the feedlot, or if the AFO is a "significant contributor to the impairment of a waterway". Ohio's PTI program has focused on AFOs larger than 1,000 animal units, of which Ohio claims 99 percent are properly permitted. Ohio is expected to seek approval for its PTI program in the fall under the new guidelines outlined in the Strategy for AFOs.

Eminent Domain

One restraint on the power of eminent domain is that a taking must be for a public need, which often provides a basis for challenging a taking. However, a highway appropriation differs because the law presumes that a highway is a public necessity. Because necessity for the taking is presumed, there is no statutory right to challenge whether the taking is necessary in an initial condemnation proceeding, as a landowner may do in other eminent domain situations.

For highway takings, the landowner should focus on ensuring that the proper amount of compensation will be paid for the taking. The government is required by law to pay the fair market value for the property. In the negotiation stage which takes place when the government first decides that it wants the land., the landowner and agency are to agree upon a price to be paid for the land. If there is no agreement, the agency can perform what is called a "quick take." By filing a petition in court for the condemnation and depositing the proposed value of the land taken, the agency may then have possession of the land, with certain stipulations if the land contains buildings.

Whether in the negotiation stage or in the court proceeding, the landowner has the right to present evidence of the property's fair market value. This can be accomplished with an appraisal of the property and court testimony as to the property's attributes and value. Additionally, the landowner should assert any damages to the remainder of the property caused by the taking. A good appraiser can be very beneficial to the landowner in these cases.

Yes, Ohio law allows certain private companies to appropriate land for particular purposes. Pertinent to several situations in Ohio recently is the provision in O.R.C. 1723.01 that a private company "organized for the purpose of transporting gas or petroleum through tubing, pipes or conduits" may appropriate as much private land as is necessary for laying down the pipes, tubes and conduits. The courts tend to scrutinize these private eminent domain actions more closely than eminent domain by the government to avoid any abuse of the power by the private company.

Gift Tax Returns

The answer to this question is that it depends upon the type of gift involved. If the gift is one whose value is easily determined, i.e., cash or stocks, then a return is not necessary since the IRS won't dispute the value. However, if the gift's value is uncertain and must be estimated, as is the case for real property, filing a return will start a limitations period for the IRS. That is, the IRS will only have a three year period from the April 15th due date for the return to challenge the valuation of the gift. In such cases, it is advisable to file a return even if the gift is less than $10,000 in order to guarantee the value of the gift.

Right-to-Farm Laws

There's a great deal of talk about the Iowa Right-to-Farm case and what it means for farmers in other states. The Iowa Supreme Court held that their law amounted to an unconstitutional taking because it granted farmers an easement over neighboring lands. By preventing neighbors from bringing a lawsuit for nuisance, the court reasoned, the farmer held an easement to commit odors on nearby properties but the neighboring landowners were not paid for the easement. The court invalidated that portion of the Right-to-Farm law that prevented the right to bring suit.

The same outcome could be difficult in Ohio, however, because our law differs from the Iowa law. Ohio's law provides a nuisance defense for the farmer only if the farm was in existence first, is being operated according to all applicable regulations and is enrolled in an agricultural district. The burden is on the farmer to assert and prove the defense if the farmer is sued for nuisance.

Unlike the Iowa law, Ohio's law does not prevent a neighbor from suing an operator for nuisance and does not automatically grant the farmer a right to commit what could be a nuisance. Rather, Ohio's law more clearly defines when a livestock operation is not a nuisance. In this respect, the argument that our law takes away a property right is not a strong one, and the law should be difficult to invalidate on such grounds.

AEDE