Ohio’s Right-to-Farm Summary

Ohio legislators proposed a right-to-farm law as a tool to preserve agricultural land.1 But since the law first passed in 1982, the number of farms in the state has dropped by 11 percent, with 12 percent fewer acres of farmland.2 So what does this legislation do in practice?

Ohio’s RTF Law at a Glance

Ohio’s RTF law, first passed as the “Agricultural District Program,” was among only six in the nation that tailored protection to agricultural districts. County auditors and sometimes councils stipulated what land was enrolled in such districts. 3 Among other things, such districts were required to be at least ten acres or more.4 However, amendments contained within 2,000 pages of the state’s 2019 budget bill and passed that July no longer require operations to take place within an agricultural district.5 The law now protects agricultural activities on any land exclusively used for agricultural production.6 Types of production protected include commercial aquaculture, animal husbandry, and commercial crops as well as processing, drying, storage, and marketing. A 2012 amendment also added biomass/biodiesel production as protected activities.7

Conditions and Activities

For agricultural activities to be protected through the RTF law, the statute stipulates that they should predate the activities or interests of the person or entity filing the lawsuit. Despite this, Ohio Fresh Eggs, a limited liability corporation with over 2.5 million birds, was able to successfully claim in court that it was there first through general agricultural land use.8 Initially, a farmer who predated the egg facility filed a complaint with the Ohio Environmental Protection Agency over air pollution. However, the Ohio Environmental Protection Agency ruled the facility was exempt. The farmer appealed, and Ohio’s Environmental Review Appeals Commission ruled that the facility did violate the state’s pollution laws. Ohio Fresh Eggs followed with its own appeal. The court then determined that the corporation’s activities met the definition of agricultural production as defined in the state’s RTF and air pollution control laws.9 The court also considered whether there was a change in the type of agricultural use of the land, as the farmer had lived on his property since 1967 and the egg operation began in 1996 (as Buckeye Egg Farm Limited Partnership).10 The court ruled that the LLC operated on land designated for agricultural purposes since at least the 1930s, thus meeting one of the five conditions necessary for exemption under the air pollution control act and overturning the Environmental Review Appeals Commission’s decision.11 In a separate case, a court ruled that even if an agricultural operation bought its land after a plaintiff, it still had the “there first” defense if the type of activity had not changed.12

To receive RTF protections, the state also requires that agricultural activities not be in conflict with federal, state, and local laws and be conducted in accordance with common agricultural practices.13 Common practices and activities include cultivating crops and changing rotation; raising livestock and changing the species of livestock; operating under a livestock contract; storage and application of fertilizer, manure, pesticides, and other chemicals commonly used in agriculture; change in corporate structure or ownership of the operation; the expansion, contraction, or change in operations; and any agricultural practice accepted by local custom.14 Agricultural activities conducted outside municipal boundaries may not be subject to public nuisance suits or other local or state regulatory violations if they are done in accordance with “generally accepted agricultural practices” and do not have a “substantial, adverse effect on the public health, safety, or welfare.”15 The meanings of “generally accepted agricultural practices” and “substantial, adverse effect” are not defined.

Formerly, Ohio had a unique provision that did not allow one farmer to use the RTF law when suing another farmer. The sweeping 2019 amendments, though, now allow agricultural operators to use the RTF defense, even if sued by a farmer. However, farmers who are aggrieved or adversely affected by an agricultural operation’s violation of the state’s environmental protection laws may file complaints that sometimes lead to lawsuits.16

Local Governance

The RTF law allows citizens to bring an action to address a nuisance in the name of the state or a municipal entity respective to the county they live in.17 In such cases, citizens must post a bond of no less than $500. The particular amount is determined and approved by the court. If the court decides the suit was wrongfully brought, dismissed, or not fully prosecuted, the agricultural operation can claim damages in the amount of the bond. Operations typically cannot claim more than this original bond amount, even if they later claim to have incurred greater expenses in their defense.18

Townships have some power to prohibit the use of land or construction of buildings for agricultural purposes when that land is less than five acres in size. However, they have no authority to regulate activities on parcels larger than five acres.19 For instance, a proposed dairy operation containing over 2,000 cows claimed in court that a township could not require a land use permit for its operation. The court agreed, ruling that the township could not regulate the operation, as it was on agricultural land.20

1. See legislative preamble to 1982 Ohio Laws (S.B. 78).
2. U.S. Department of Commerce, “Table 1. Farms, Land in Farms, and Land Use: 1982 and Earlier Census Years,” in 1982 Census of Agriculture, Volume 1: Geographic Area Series, Part 35: Ohio State and County Data, Chapter 1: State Data (Washington, D.C.: U.S. Bureau of the Census, 1984), https://agcensus.library.cornell.edu/wp-content/uploads/1982-Ohio-CHAPTER_1_State_Data-121-Table-01.pdf; “2021 State Agriculture Overview: Ohio,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022, https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=OHIO.
3. Barbara Galloway, “Park Farms Vote Delayed in Canton Council Law,” Akron Beacon Journal, June 8, 1993.
4. Ohio Rev. Code § 929.02 (2021).
5. 2019 Ohio Laws 10 (H.B. 166) (amending, in relevant part, Ohio Rev. Code § 929.04). See also Peggy Hall Kirck, “Budget Bill Alters Ohio’s Right to Farm Law,” Morning AgClips, July 29, 2019, https://www.morningagclips.com/budget-bill-alters-ohios-right-to-farm-law/.
6. It also protects agricultural activities conducted by an entity pursuant to a lease agreement or enrolled in Ohio’s property tax reduction program. For more details, see Ohio’s current agricultural use valuation program at Ohio Rev. Code § 5713.30 (2021).
7. 2011 Ohio Laws (H.B. 276) (amending, in relevant part, Ohio Rev. Code § 5713.30[A]). See also Ohio Rev. Code §§ 929.01, 929.04 (2021).
8. Bear v. Jones, No. 06AP-1271, 2007 WL 2505511 (Ohio Ct. App. Sept. 6, 2007).
9. Bear, 2007 WL 2505511, at 6 (citing Ohio Rev. Code § 3704.01(B), which provides that “air contaminant” does not include “emissions from agricultural production activities,” as defined in Ohio Rev. Code § 929.01).
10. See Concerned Citizens of Cent. Ohio v. Schregardus, 148 Ohio App. 3d 31, 33 (2002) (stating, “The facts underlying this matter are undisputed. In March 1996, the director of OEPA approved an initial livestock waste management plan for Buckeye Egg’s Marseilles egg production facility. The plan provided for construction of fourteen laying hen barns to house a total of approximately 2.5 million chickens”). See also Bear, 2007 WL 2505511 (citing Schregardus, 148 Ohio App. 3d 31).
11. Bear, 2007 WL 2505511. Ironically, before this case was decided the U.S. Department of Justice sued the company for failing to comply with the federal Clean Air Act and obtain necessary federal pollution control permits. See “Ohio’s Largest Egg Producer Agrees to Dramatic Air Pollution Reductions from Three Giant Facilities,” U.S. Department of Justice and U.S. Environmental Protection Agency, News Release, February 23, 2004, available at https://archive.epa.gov/epapages/newsroom_archive/newsreleases/508199b8068c24a585256e43007e1230.html. Since states have to implement federal Clean Air Act regulations that are at least as stringent as federal law, it is unclear why the operation received an agricultural exemption from OEPA.
12. Eulrich v. Weaver Bros., Inc., 165 Ohio App. 3d 313 (2005).
13. Ohio Rev. Code § 929.04 (2021).
14. Ohio Rev. Code § 929.04 (2021).
15. Ohio Rev. Code § 3767.13(D) (2021).
16. See, e.g., Ohio’s air pollution control law, Ohio Rev. Code § 3704.06(E) (2021); the state’s environmental protection regulations under Ohio Rev. Code § 3745.08 (2021); and the state’s solid and hazardous waste regulations under Ohio Rev. Code § 3734.101(E) (2021).
17. Ohio Rev. Code § 3767.03 (2021).
18. Ohio Rev. Code § 3767.03 (2021). See also Shuttleworth v. Knapke, No. 02CA1582, 2003 WL 588598 (Ohio Ct. App. Feb. 28, 2003) (noting that “these provisions [in Ohio Rev. Code § 3767.03] limit the amount of the awards to the amount of the bond, and limit a defendant’s recourse on those awards to a proceeding against the bond the plaintiff posted”).
19. Ohio Rev. Code § 519.21 (2021).
20. Meerland Dairy L.L.C. v. Ross Twp., No. 07CA0083, 2008 WL 1991886 (Ohio Ct. App. May 9, 2008).