Don Bailey of Union County fought to defend the agricultural easements on his Union County farms.

Court lands on the side of preserving farmland in Bailey case

By Matt Reese

Promises only have value if they are kept. 

As Successor Trustee to his uncle Arno L. Renner, Don Bailey made a promise to protect the easement on the land donated to the State of Ohio to keep the family’s Union County farm in agriculture. Though it has not been easy, Bailey kept his promise. 

“In 2003, my uncle Arlo Renner saw the massive growth in the farmland disappearing around us so he voluntarily donated the ag easement to the state of Ohio under the farmland easement program,” Bailey said.

With the intent to protect his farm for perpetuity, Renner donated the development rights to his 231.25 acres of land valued at over $3.5 million on Nov. 5, 2003. The Ohio Department of Agriculture (ODA) accepted the donation. At the time, the ODA Office of Farmland Preservation entered into an agreement with the Union Soil and Water Conservation District to monitor the easement on the land. Soon enough, the integrity of the easement was tested.

“We fought battles a couple years after that. The city wanted to put a four-foot sewer line through the property. The Ohio Department of Agriculture came forward and told the city that if they tried to use that domain, they would oppose them,” Bailey said. “The city backed down and put it under a right-of-way of the county road. Two years later, the water company wanted to put a water line across. At that time, the Ohio Attorney General of Ohio wrote a letter to the company and said it was protected farmland, you cannot go across it.” 

With a precedent established, the Bailey family was not overly concerned when more development attempts were made on the farmland located on Adelsberger Road near Industrial Parkway in Marysville.

“In 2019, in October, when we first got our notice from Columbia Gas that they wanted to do a survey we thought, well ODA’s going to protect this land no problem. But we got blindsided. We did not know the ODA director at that time had a personal relationship with a lobbyist from Columbia Gas and they basically just laid down and said, ‘Yes, it is OK to go across that property,’” Bailey said. “At that time, we had to get a lawyer — I didn’t really want to have to go to court, but we got no satisfaction. I wrote the governor a letter and he just basically gave it back the ODA. So, we went to court and during our hearings, ODA basically testified for the gas company against us. They said, ‘It’s fine if you go through there with eminent domain. We don’t have any problem with that.’ Fortunately, the justice system helped us. Columbia Gas had misrepresented their authority in trying to get a perpetual temporary construction easement and the judge said, ‘There’s no such thing as perpetual temporary easement’ and he ruled against them.”

Columbia Gas appealed the ruling issued in April of 2022. In April of 2023 the ruling was upheld when the 3rd District Court of Appeals ruled that Columbia Gas of Ohio did not demonstrate that taking of the property was a necessity, and that further review was warranted of the agricultural easement issue.

“Columbia Gas appealed to the higher court and we got notice that the higher court upheld the lower court and said Columbia Gas did not have the right to use eminent domain,” Bailey said. “The judicial system helped us when the bureaucrats were against us.”

Upholding Bailey’s promise to his uncle and ODA’s promise to the Bailey family has great importance to the 500+ other agricultural easements held by the State of Ohio. The Agricultural Easement Donation Program (AEDP) is one tool for landowners to protect their farm’s soils, natural resource features, and scenic open space. It provides landowners the opportunity to donate the easement rights on viable farmland to the ODA. In addition to the donation program, the State also has an easement purchase program using Clean Ohio Conservation Funds.

If land protected from development by these easements is not really protected, there is not much integrity in the land preservation efforts of the program, Bailey said.

“We’re concerned that once one utility is allowed to go through, it is a natural corridor for all utilities to start going through. Since it is preserved as farmland, the value of it is much less than the commercial value of the land across the road. It is the cheapest place for utilities to go through. That is what we are afraid of. If the State won’t defend it, preserved land will be targeted for that particular reason,” Bailey said. “This is not just about us.”

This most been recent battle has been long and costly for the family.

“We didn’t want to take it to court because it’s a very expensive proposition, but somebody had to stand up for the 500 other easements in the State of Ohio,” Bailey said. “Without doing that, I think that it basically would have neutered the program. When you donate the land development rights to the state, you basically give up all your rights to it except to keep it in agriculture, which we want to do. We couldn’t do anything else with it. It was really encouraging to see the judicial system rule in our favor.” 

In their fight, the Bailey family had extensive support from the community, including the Coalition of Ohio Land Trusts and Ohio Farm Bureau that cooperated in filing an amicus brief in support of the Baileys’ case. The amicus brief focused on how a utility line buried under a property can impact the future agricultural use of the property, including tree planting or the addition of a livestock barn. The Union County Farm Bureau worked with educating local leaders about the issue as well. 

In a statement, Ohio Farm Bureau said: “This is a very important outcome for not only The Bailey Family and the Arno Renner Trust, but anyone who enters into agricultural easements with the intention for their land to remain in agriculture and not just for their family, but for future generations. Ohio Farm Bureau got involved to not only highlight the significance of the state’s Farmland Preservation Program in this case, but also to emphasize the need for broader eminent domain reform that our organization is currently advocating for on behalf of landowners across the state.”

Columbia Gas can still appeal, but likely will not. As it stands, after significant testing, the promises surrounding the Arlo Renner trust have been kept, but not without plenty of help along the way. 

“We’re very grateful for that and for all the people that supported us. The Coalition of Land Trusts, county commissioners, Union Soil and Water Conservation District, Ohio Farm Bureau, and many individual citizens came up and said, ‘Hey we support you.’ They supported us because they saw the significance of this this case and we’re glad for the whole program you know,” Bailey said. “It’s a good program, but unless it’s enforced, the integrity of it is gone.”

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