Union County court rejects pipeline eminent domain

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Don Bailey, Charles Renner and Patrick Bailey
Don Bailey, Charles Renner and Patrick Bailey are opposing construction of a Columbia Gas pipeline across their land in Union County. Their land is bound by an agricultural easement held by the Ohio Department of Agriculture. The ODA has not opposed construction of the natural gas pipeline. (Gail C. Keck photo)

MARYSVILLE, Ohio — A Union County judge has rejected Columbia Gas of Ohio’s request to approve eminent domain to install a pipeline through preserved farmland.

The ruling did leave the door open for eminent domain action in the future, however, noting that ag easements don’t prevent it.

The court ruling, issued April 26 by the Union County Court of Common Pleas, combines two cases: Columbia Gas of Ohio vs. Patrick Bailey et al., and Columbia Gas of Ohio vs. Don Bailey Jr., successor trustee of the Arno Renner Trust.

Columbia Gas filed the petitions asking the court to allow the company to use eminent domain to obtain easements for its pipeline. Judge Mark S. O’Connor dismissed the petitions and encouraged further mediation.

The decision to dismiss the petitions was not based on the fact that ag easements are already in place on the land. Instead, O’Connor 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.

In his ruling, he explained, “This is contrary to the terms of that easement and contrary to the State’s historic right to exercise the right of eminent domain.”

The judge criticized both Columbia Gas and the Ohio Power Siting Board for their handling of the project. In his ruling, he noted, “Given the particular fact of this case where the 25-foot easement was labeled ‘temporary’ before the Siting Board and transformed itself into ‘perpetual’ before this Court, this Court is of the opinion that the Siting Board did not do its job. This Court finds it was ‘bad faith’ to represent one thing to the Siting Board and then ask this Court to approve something greater.”

The Ohio Power Siting Board approved the pipeline project in August of 2020, and construction was originally scheduled to start in February of 2021. Columbia Gas won’t be able to start construction, however, until it holds easements for the entire route. Several other landowners, who do not have agricultural easements, are also fighting eminent domain action for the pipeline.

The court previously ruled in favor of those landowners in two other cases, and Columbia Gas has appealed those rulings to the Ohio Third District Court of Appeals.

Long dispute

The dispute between the gas company and the Bailey family began in December of 2019, when Columbia Gas first contacted them with plans to build a natural gas pipeline across their land.

The land, located south of Marysville, has been protected from non-farm development with an agricultural easement since 2003. The previous landowner, Arno Renner, donated the ag easement to the Ohio Department of Agriculture. Renner died in 2007. Now, part of the land is held in a family trust, with Renner’s nephew, Don Bailey, as trustee.

Another parcel of the preserved farm is now owned by Patrick Bailey, Don’s son. In 2005, the ODA, as holder of the ag easement, objected to the installation of a sanitary sewer pipeline across the farm, and that pipeline was re-routed. Then, a few years later, the ODA defended the easement again against a proposed water pipeline.

This time, however, the ODA did not oppose the construction of the Columbia Gas pipeline through the preserved farmland. Although the ODA holds a seat on Ohio Power Siting Board, the department recused itself from consideration of the pipeline project.

Don Bailey continues to question why the ODA did not push back against the Columbia Gas pipeline proposal. In an emailed statement to Farm and Dairy after the court ruling, he noted that he hadn’t been worried about the pipeline proposal at first.

“I was confident that ODA would come forward to stop the proposed pipeline as they did twice in the past,” Bailey wrote, adding, “The response was that they did not see anything wrong with the pipeline going forward.”

Implications

The ODA provided a reaction to the court’s ruling with an emailed statement to the Farm and Dairy: “In response to the specific issue to which ODA was referenced by the court, we agree with the court’s decision that this proposed pipeline project does not violate the individual terms of the agricultural easement at issue. ODA does not have any comment on the remainder of the ruling in which ODA was not referenced.”

The ODA also commented on steps it will take in response to the rulings: “Interest in ODA’s Farmland Preservation Program is continuously high, and ODA will continue its work as usual to maintain the state’s farming heritage while positioning Ohio for agricultural growth.”

The ODA also provided advice for landowners with ag easements who are approached regarding utility easements, urging landowners to consult with an attorney and to contact ODA.

Easement defense

Michele Burns and Ellie Ewing, co-chairs of the Coalition of Ohio Land Trusts, have been monitoring the court proceedings because of the implications they might have for other agricultural easements.

Ewing, who is also executive director of the Captina Conservancy, based in Barnesville, Ohio, said COLT is not a party in this case — no private land trust is involved — but the organization still has an interest in the outcome.

“We were watching this case because we see that it has possible precedent for many other easements where COLT members are co-holders along with ODA in these agricultural easements,” she said.

Burns, who works as executive director of the Tecumseh Land Trust based in Yellow Springs, Ohio, said the case is drawing interest because there is so much pipeline construction throughout the state. The judge’s position on eminent domain was not unexpected.

“Most of us in the land trust world understand that these ag easements don’t always stop eminent domain, so that part wasn’t a huge surprise,” she said, adding, “If you’re going to exercise eminent domain you want it to meet strict standards of necessity and make the taking as small as possible.”

Eminent domain cases involving preserved land can be especially difficult, Ewing said, because they pit one public good against another.

“For us in the land trust community, we continue to take the position that these ag easements should be defended in eminent domain actions and that the entity that’s requesting eminent domain be held to a strong standard,” Ewing said. “I think that’s part of what the court did in looking so closely at the language that they used.”

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