The family situation behind a Butler County lawsuit is unfortunate, but not uncommon: Two siblings own farmland together and one wants to sell, but the siblings can’t agree on terms. What makes the case exceptional is that the land is protected by a conservation easement, which includes a clause prohibiting subdivision of the property. According to the common pleas court ruling, that clause is void and unenforceable. So, instead of merely settling a family disagreement, the court ruling on the case sets a precedent that could allow other preserved farms to be subdivided as well.

For Jan Taylor, the landowner who brought the case, the ruling was a surprise. She wanted the court’s help to force the appraisal and sale of the entire property as a whole, not a division of the 77-acre farm. “It’s not about ownership rights, and it’s not about family disagreements. It’s about the perpetuity of stewardship,” she explains.

Taylor is planning an appeal of the ruling and so is the Three Valley Conservation Trust, which holds the easement on the Taylor farm. Other land trusts and farmland preservation organizations in Ohio and around the country are monitoring the case. Ben Kurtzman, senior manager of land stewardship for the American Farmland Trust, says court rulings against conservation easements are rare. “When conservation easements are invalidated in whole, or in part, it’s something we pay attention to,” he says.

Agricultural conservation easements are the linchpin of farmland preservation programs in Ohio and across the country. State laws in 49 states allow landowners to use these easements to preserve land for agricultural use. The easements are voluntary deed restrictions that limit future use of the land to agriculture. Some easements are donated, but most are voluntarily sold by landowners. Land trusts and government agencies hold the easements and monitor the use of the property. In Ohio, more than 101,000 acres are protected with agricultural conservation easements. Nationally, around 5 million acres of agricultural land is protected with easements, based on statistics collected by the American Farmland Trust.

If it’s not overturned on appeal, the court ruling in Butler County could undermine public confidence in ag conservation easement programs, says Kurtzman. Potentially, the ruling could be used in other parts of Ohio and in other states as a basis for court challenges of other easements.

Change of direction
The land in question in the Butler County lawsuit lies just north of Oxford. Jan Taylor’s parents originally bought the land as an investment, expecting the town to expand outward, she recalls. But over time, the family began looking at the land differently and valuing it more for its agricultural history. Her father was a college professor and a gentleman farmer, Taylor explains. She and her brother grew up helping with the cattle and sheep on the farm. Taylor described the family’s growing commitment to land stewardship in a land trust newsletter article shortly after the family placed a conservation easement on the farm.

“I’m not sure when the Taylor family took the leap of faith from landowner to steward,” she wrote. “It might well have started with that first photograph of us kids standing with Dad in the cornfield, overshadowed by a bumper crop of corn that stood 2 feet higher than any adult. In the eyes of a 5-year-old, it was magical to me. Or maybe it was when we wept, as grown adults, while reverently tearing down the ‘old’ wooden barn.”

After Taylor’s father died in 1986, residential development leapfrogged over the Taylor farm and the family decided to preserve it permanently as farm ground in 2003. At that point, the land was owned by Taylor; her brother, James Taylor; and their mother, Doris Taylor. The three of them worked out an agreement with the Three Valley Conservation Trust to place a conservation easement on the property as part of Three Valley’s conservation easement purchase program. “I thought we had it all figured out,” says Jan Taylor.

Since their mother’s death in 2006, Jan and James Taylor have owned the land as tenants in common. Both of them had off-farm careers, and the tillable acres on the property have been farmed by a long-term renter. Last year, when Jan Taylor decided to sell out her share, she hoped it would be bought by a family member, or that the entire farm would be sold to a young couple starting out in farming. After she and her brother were unable to reach an agreement on selling the land, she filed suit with the Butler County Common Pleas Court, seeking appraisal and sale of the property as a whole.

According to the conservation easement, “The legal subdivision of the property, recording of a subdivision plan, partition, or any other division of the Property into two or more parcels, is prohibited.” However, that restriction did not hold up in court. Judge Greg Stephens ruled that the land could be subdivided, because the restriction on subdivision does not contain a “reasonable temporal limitation.” In other words, the restriction doesn’t have a time limit or end date. He based the decision on previous court rulings related to land with underlying oil and gas leases.

At the same time, Stephens noted that Ohio law does allow conservation easements on land to be permanent. So, even if the land is subdivided, each of the new parcels will be subject to the original easement’s restrictions on land use.

Subdivision dangers
Although the court acknowledged that the easement restrictions on land use are permanent, the ruling allowing the land to be subdivided is a concern, Kurtzman says. Subdividing preserved land would complicate management of easements for land trusts, he explains. “It increases the cost of stewardship.”  If a parcel is subdivided, the land trust would end up with more landowners and more land-use plans to keep track of, he points out. “It’s always desirable to avoid fragmentation.”

Rob Krain, who chairs the Coalition of Ohio Land Trusts steering committee, also sees problems with the subdivision of preserved farmland. “The conservation community is troubled by the Butler County case, and its potential to set bad precedent,” he notes. “The case is being appealed, and we fully anticipate that the judgment will be overturned.”

 “In this case,” Krain adds, “the court essentially found that subdivision of the property doesn’t adversely affect the conservation values — the value of rich prime soils, water resources or even wildlife habitat — of the property or its continued agricultural use. Ohio’s farm families know all too well that when farms are split up, the resulting parcels are inevitably less viable than the original farm was.”

Ashley McDonald, public information officer for the Ohio Department of Agriculture, notes that the ODA is watching the case as well. “While the easement in this court case is not held by the Ohio Department of Agriculture, we are paying close attention to this ruling and any appeal that may come from it. Land is one of the most valuable resources within the agriculture sector, and its preservation is crucial to supporting the state’s $105 billion food and agriculture industry.”

Jan Taylor and the Three Valley Conservation Trust are preparing to appeal the ruling to Ohio’s 12th District Court of Appeals in Middletown. The appeals process is likely to take around 18 months.