Legal-Ease: Urban rural livestock battles usually fought on two fronts


LEGAL-EASE

By Lee R. Schroeder - Contributing Columnist



Lee R. Schroeder


Personal vehicles are the primary method of transportation in Ohio. When people have to drive to get anywhere, people can be more open-minded and more selective in where they want to live. The “country” ends up being the most sought-after destination for many people who seek privacy and peaceful living.

Of course, when people move to the country, they encounter people who already live and work in the country. Many of those existing residents are farmers, who may raise livestock that smell or sound different than newcomers might expect.

Additionally, with the increased demand for meat, new confined livestock operations, especially swine (pig/hog) operations, are becoming more and more prevalent in Ohio’s countryside.

I regularly get calls from residents and livestock farmers in Ohio’s rural areas, asking me for assistance in dealing with each other in this context. Obviously, each situation is different. Despite my deep agricultural roots, I know that certain farmers are not responsible stewards of the legacy of feeding people that those certain farmers should be.

The battle between livestock odors and country living is usually fought on two fronts. The first front is zoning. Most, but not all, townships in our region having zoning regulations that govern the scope of uses of property within any particular geography.

Each township uses a slightly different structure to create or change the zoning classification of any particular area. Because agriculture is Ohio’s largest industry, Ohio law protects agriculture from excessive zoning in some contexts. Ohio law generally prohibits townships from zoning agriculture uses and agricultural buildings out of any geography, except when the geographic area is a significantly large residential development consisting only of lots smaller than five acres.

Airborne pollution (such as livestock odor and noise) that is considered a trespass must usually cause permanent damage to neighboring property, among many other requirements. However, a nuisance is an act that creates a substantial but often temporary damage to neighboring property, including an inability to fully use that neighboring property. Therefore, the second front in the battle between livestock odors and residences is nuisance law.

Livestock operations that are in “agricultural districts” as established through an application and approval process under Ohio law are exempt from lawsuits that allege nuisances against those livestock operations.

Ohio common law (traditional law that was not passed by the Ohio General Assembly) allows nuisance claims against livestock operations. However, to prevail in securing an injunction against a livestock operation for nuisance, courts usually require that one of two alternate set of facts be proven.

First, the livestock operation must be intentionally and unreasonably managed in a way that adversely affects residential neighbors. Alternatively, the livestock operation must be unreasonably managed in a significantly reckless or negligent way that results in abnormally dangerous conditions for the residential neighbor.

Existing state laws and all local laws are prohibited from regulating nuisances emanating from any livestock operations that use “generally accepted agricultural practices” or do not have a substantial, adverse effect on public health or safety.

Lee R. Schroeder
http://aimmedianetwork.com/wp-content/uploads/sites/29/2015/08/web1_Schroeder-Lee-RGB1.jpgLee R. Schroeder
LEGAL-EASE

By Lee R. Schroeder

Contributing Columnist

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.