Appeals court halts plans for pipeline through preserved Union Co. farm

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Bailey family
Ohio's Third District Court of Appeals reviewed eminent domain cases involving preserved farmland in Union County. Family members and supporters gathered to hear oral arguments, Nov. 22, 2022. Pictured in the first row are farmland owners Patrick Bailey, Charles Renner and Don Bailey. In the second row are Leah Curtis, policy council for the Ohio Farm Bureau, and Laura Curliss, an attorney representing the Bailey and Renner families. (Gail Keck photo)

The Ohio Third District Court of Appeals is blocking construction of a natural gas pipeline across Union County farmland preserved with agricultural easements. The decision was handed down April 17.

For Don Bailey and his family, the ruling means they can plant this spring without wondering if their crops will be dug up. The ruling may also benefit other farmers who have land protected by ag easements, he said.

“We’re hopeful that it will have long-term effects, and reinforce the farmland preservation program,” Bailey said.

Important decision

Laura Curliss, an attorney who represented the Bailey family in the case, said the opinion is notable because the appellate court thoroughly discussed whether the ag easement prevented taking of the pipeline easement by eminent domain. The court looked at the terms of the ag easement, the fact that the ag easement established a prior public use for the property, and federal tax implications.

“It’s important. There are still some unanswered questions and we will see how it proceeds,” she said.

The Ohio Farm Bureau, which submitted a brief to the appeals court in support of the Baileys’ position, issued a statement on the appeals court ruling.

“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.”

In limbo

The district court ruling comes more than three years after the Bailey family first heard of plans by Columbia Gas of Ohio to bury a natural gas pipeline through their land just south of Marysville. The land has been protected from non-farm development since 2003, when Arno Renner, donated an agricultural easement to the Ohio Department of Agriculture.

Renner died in 2007 and, now, part of the land is held in a family trust, with Arno’s nephew, Don Bailey, as trustee. Another parcel of the preserved farm is now owned by Don’s son, Patrick, and Patrick’s wife, Whitney.

Over the years, the Ohio Department of Agriculture had defended the Renner/Bailey family ag easements by opposing construction of water and sewer pipelines across the land, and those pipelines were routed around the farm. The department did not oppose the construction of the Columbia Gas pipeline, however.

“When these landowners gave up property rights to ODA, they believed they entered a certain kind of a deal. And, basically, ODA is reneging on that deal,” Curliss said.

Court case

After the Baileys refused to sign off on the gas pipeline easements, the gas company took them to court in November 2021, in an effort to appropriate the pipeline easements by eminent domain.

The Union County Common Pleas Court dismissed the eminent domain petitions, but the decision to dismiss the petitions was not based on the fact that ag easements are already in place on the land. Instead, the judge pointed to an inconsistency between the easement language approved by the Ohio Power Siting Board and what was presented to the court. He disagreed with the argument that the existing ag easement should protect the land from eminent domain.

After that ruling, both Columbia Gas and the Baileys filed appeals with the Third District Court of Appeals. In its decision issued April 17, the court of appeals ruled that Columbia Gas did not show that taking of the pipeline easement by eminent domain was necessary for a public use.

The court also ruled that the “prior public use” established by the agricultural easement should have been more thoroughly reviewed. The case was sent back to the county court for additional action.

Questions remain

The county court’s dismissal of the eminent domain petitions held off construction of the pipeline, but it didn’t settle some critical questions related to the ag easement, Don Bailey said.

He was pleased the appeals court took a broader view of the issues involved. In addition to considering the preexisting public good of the ag easements, the district court ruled that the lower court erred in not allowing testimony about the purpose of ag easements and the effect of pipeline construction on farmland.

“You would not be able to plant Christmas trees, or orchards or put fences up for livestock,” Bailey said. “There are a lot of agriculture uses you could not do if you had that pipeline easement across it.”

Columbia Gas has not yet publicized any plans for re-routing the proposed pipeline or for further court appeals. The construction delays resulting from the court cases have already forced the company to revise the timeline for building a pipeline.

Union County commissioners have submitted comments to the OPSB reaffirming their support for the project, but only if it is routed around the protected farmland.

The project was approved by the siting board in August 2020, and construction was originally scheduled to begin in February 2021. Columbia Gas is not permitted to begin construction, however, until the company holds pipeline easements for the entire route.

The company must also begin a “continuous course of construction” within three years of its OPSB approval, so approval is set to expire this coming August, if easements aren’t in place and construction started by then.

How the ruling will affect future eminent domain proceedings on protected farmland remains to be seen, Bailey said. The ruling does provide some support for the rights of landowners.

“At least it will make the courts aware in the future that you’ve got to take a look at all sides of it not just the utility’s side of it,” he said.

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