JEFFERSONVILLE, Ohio – In 2023, the 191-acre working grain farm of Michael and Elizabeth Bentley in Fayette County, Ohio, was permanently preserved for agricultural use under an agricultural easement held by the Fayette Soil & Water Conservation District (SWCD) and the Ohio Department of Agriculture (ODA).

An agricultural easement is a voluntary legal agreement by a landowner to use land primarily for agricultural purposes and forfeit the right to develop the land for other purposes, either permanently or, less often, for a term of years.

Such an easement was first purchased on a Fayette County farm during the 2015 program. To date, nearly $2.7 million has been utilized by the district to protect eight family farms totaling 2,058 acres in the county.

That’s just the tip of the iceberg in the state for 2023. The ODA announced recently that nine land trusts, seven counties or townships, and 25 soil and water conservation districts will receive funding to help preserve farmland across the state. These organizations will receive allocations from the Clean Ohio Fund to select, close and monitor easements under the Local Agricultural Easement Purchase Program (LAEPP).

Joining the Bentleys in this push to preserve Ohio’s agricultural legacy are Linda J. Hudson (Madison County, 152 acres), Benjamin J. Watkins (Delaware County, 100 acres), Timothy George Moss (Huron County, 131 acres), David A. Felumlee (Licking County, 61 acres), Patricia A. Walrath (Licking County, 116 acres), Robert A Barker and Dorothy V. Barker (Morrow County, 160 acres) and Bean Bros, LLC (Clinton County, 46 acres).

Local sponsors such as Fayette SWCD, Madison County Commissioners, Delaware County Commissioners, Western Reserve Land Conservancy, Licking SWCD, Morrow SWCD, and Clinton SWCD collaborated with the ODA to secure these agreements.

These recent additions, alongside 29 other farms that joined in 2023, underscore Ohio’s strong commitment to preserving agricultural land. The Farmland Preservation initiative facilitates voluntary agreements between landowners and the ODA. In these agreements, landowners pledge to sustainably use the land predominantly for agricultural purposes in perpetuity. In return, landowners receive compensation or potential tax deductions.

This program allows landowners to voluntarily sell easements on their farms to the state of Ohio. Selected farms must be 40 acres or more, actively engaged in farming, participate in the Current Agricultural Use Valuation program (CAUV), demonstrate good stewardship of the land, have the support of their local government, and not be directly in the path of development. Landowners may use the proceeds of the easement in any way they wish, but most reinvest it in their farm operations.

Peggy Kirk Hall, attorney and director of the Ohio State University Agricultural & Resource Law Program, said that agricultural easements require legal and tax advice, and careful planning.

“It’s a big decision, and one that should align with current goals and estate planning assistance of knowledgeable legal and tax professionals,” Hall said. “There are some challenges and drawbacks of agricultural easements.”

However, there are some positives that come with agricultural easements. For instance, an agricultural easement does not restrict the right to sell or gift land, but it does carry over to the new landowner and that new landowner must abide by the terms of the agricultural easement.

According to Hall, easements include a laundry list of concerns. One concern among those involved with easements is that of eminent domain.

“As one Ohio farm family has learned just this year, an agricultural easement might not protect the farmland from an eminent domain proceeding,” Hall said. “In Columbia Gas v. Bailey, the Bailey family was forced to litigate an attempt by Columbia Gas to use eminent domain for the construction of a gas pipeline across their farmland. Their predecessor had placed an agricultural easement on the farmland in 2003, and the family argued the easement prevented the taking of land for the pipeline under the doctrine of ‘prior public use.’ That doctrine prohibits an eminent domain action that would destroy a prior public use. The court agreed that the agricultural easement did create a prior public use of the land, and the court shifted the burden to Columbia Gas to prove that the pipeline would not destroy the established prior public use. Rather than doing so, Columbia Gas withdrew its eminent domain proceeding and moved the location of the pipeline.”

Hall added that a landowner must deal with any existing mortgages, liens, leases or easements on the farmland before entering into an agricultural easement.

“The State of Ohio’s agricultural easement, for example, requires a lender to subordinate a mortgage to the rights of the easement holder,” Hall said. “Renegotiation of the mortgage might be necessary, and the lender might require a pay down of the outstanding mortgage if the property’s value could reduce below that amount. Without subordination and other approvals, a landowner will not be able to enter into an agricultural easement.”

Another concern, Hall said, is that the agricultural easement is a lengthy process.

“They don’t pop up overnight,” Hall said. “Especially when applying for funding from competitive programs like Ohio’s LAEPP or the NRCS (Natural Resources Conservation Service) Agricultural Land Easements Program. It can be a year or more before an agricultural easement is in place.”

Proceeds from the purchase of these easements empower landowners to invest in Ohio’s local economy. They expand farming operations, acquire new equipment, reduce debt, implement conservation practices, plan for retirement, support educational pursuits, and contribute to Ohio’s agricultural industry. The state’s investment in farmland easements sustains Ohio’s agricultural heritage for future generations, preserving a vibrant rural landscape and a robust economy.

The concern around keeping Ohio’s best farmland in agricultural production is not a new one. The state has a long history of paving over productive soils in favor parking lots, strip malls and more. Each acre of productive farmland lost erodes the ability to produce food, fuel and fiber, along with the agrarian heritage of the community. Legislators and farmers alike argue that agricultural lands sequester carbon, produce oxygen, allow for water filtration, provide wildlife habitat and have aesthetic appeal.

Since its inception in 1998, the Ohio Office of Farmland Preservation has facilitated 709 farms in 62 of Ohio’s 88 counties, encompassing 105,856 acres in preservation agreements.