Posted by: Patricia Salkin | July 12, 2019

IA Supreme Court Vacates $200 Per Diem Penalty following District Court’s Rejection of a Federal Preemption Claim Arising From No-Hazard Determination by the Federal Aviation Administration

This post was authored by Matthew Loeser, Esq.

Loren and Pan Danner built a 127-foot-tall grain leg on their farmland in Carroll County, in 2013. The grain leg was located under the flight path to the Arthur N. Neu Municipal Airport. In violation of the Carroll County Airport Zoning Ordinance height restrictions by encroaching into protected airspace by sixty feet. The Danners did not seek a variance before constructing the grain leg. The Federal Aviation Administration (“FAA”) conducted an aeronautical study and concluded that if the Danners painted the grain leg and added lights to the top, the grain leg would not be a hazard to aviation. The Danners complied with those measures. The Carroll Airport Commission disagreed with the FAA’s no-hazard determination and, in 2015, filed an equitable action to have the grain leg declared a nuisance and removed or modified.

While the nuisance action was pending, the Danners applied to the Carroll County Board of Adjustment for a variance from the airport zoning height restrictions. The Board denied the variance, and the Danners filed a petition for judicial review of the Board’s decision. The district court ruled on the commission’s nuisance claim and concluded “that the grain leg violated state and local zoning ordinances and constituted a nuisance and an airport hazard under Iowa Code sections 329.2 and 657.2(8) (2015).” The court ordered the Danners to remove or modify the grain leg, and the Danners appealed the nuisance ruling. The nuisance ruling was on appeal during the judicial review proceedings. In both cases, the Danners raised the common defense that the FAA’s no-hazard determination preempted local regulations as a matter of law. The district court rejected that defense in the nuisance action.

In 2018, the district court entered its ruling on the judicial review petition and affirmed the Board’s denial of the variance, rejecting the Danners’ preemption defense. The Danners appealed this ruling, and the court retained their appeal pending the outcome of the nuisance appeal in Carroll Airport Commission. The Iowa Court of Appeals ultimately affirmed the district court’s ruling in the nuisance action, finding the opinion rejecting the Danners’ preemption defense in Carroll Airport Commission was fatal to the Danners’ appeal of the zoning variance denial. Accordingly, the court affirmed the decision of the district court.

On appeal, the court found that although it affirmed the district court’s nuisance finding for the aforementioned reasons, enforcement of the per diem penalty under these circumstances would have a chilling effect on a litigant’s right to appeal a question of first impression in this jurisdiction. As such, the court held it would be inequitable to impose the $200 daily penalty on the Danners from May 1, 2018, as originally ordered by the district court until they abated the nuisance. The court therefore vacated the decision of the court of appeals, vacated the $ 200 daily penalty, and affirmed the district court judgment as modified to require the Danners to abate the nuisance within nine months from the effective date of this opinion.

Carroll Airport Commission v. Danner, 927 N.W.2d 635 (2019)

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