Lessons from Luminaries of Land Law: Latest and Greatest … · 2020. 11. 30. · Lessons from Luminaries of Land Law: Latest and Greatest Decisions Sarah Adams-Schoen, Esq., Assistant

Lessons from Luminaries of Land Law: Latest and Greatest Decisions

Sarah Adams-Schoen, Esq., Assistant Professor, University of Oregon School of Law Donald L. Elliott, Esq., FAICP, Director, Clarion Associates, LLC Dwight H. Merriam, Esq., FAICP, Attorney at Law John R. Nolon, Esq., Counsel, Land Use Law Center & Professor of Law, Elisabeth Haub School of Law Michael Allan Wolf, Esq., Professor of Law & Richard E. Nelson Eminent Scholar Chair in Local Government, University of Florida Levin College of Law

635IowaCARROLL AIRPORT COM’N v. DANNERCite as 927 N.W.2d 635 (Iowa 2019)

nalized in the custom and practice ofinsurance (where adjusters frequentlydescribe their role as being required to‘‘look for coverage’’ rather than ‘‘look forreasons to deny coverage’’). The adjust-er, like the insurer, therefore alreadyhas obligations to the policyholder. Byimmunizing the adjuster from a dam-ages action, the Sanchez Court merelydeprived the policyholder of a legal rightthat it already possessed, i.e., a right tohave the adjuster act in the same man-ner as the insurer is required to act.

Stempel, 15 Conn. Ins. L.J. at 665–66.In conclusion, one of the features of life

in the 21st century is the increased bu-reaucratization and compartmentalizationof business practices that, if accepted aslegal barriers, tend to prevent direct ac-countability for wrongful conduct. Layersupon layers of bureaucracy impair respon-siveness. In the workers’ compensationarena, the employer hires an insurer andnow the insurer in turn may hire a third-party administrator.

But where there is no direct accountabil-ity, service may deteriorate. We all knowthe potential scenario. The phone ringsand no one answers. One is put on hold forhours. The right hand knows not what theleft hand is doing. No one is familiar withthe file. A person with decision-makingauthority cannot be found. Delay. Delay.Delay. This type of behavior could lead tobad-faith exposure of an insurance compa-ny. The exact same type of behaviorshould lead to bad-faith exposure when athird-party administrator assumes thefunctions of the insurer.

I can think of no other area where it ismore critical to have direct accountabilitythan in insurance—where issues of ex-traordinary importance and urgency to theinsured are increasingly handled by face-less and insulated third-party bureaucra-cies. To me, one of the essential functionsof our tort system is to ensure that parties

responsible for the foreseeable injuriesthat they cause through their misconduct,particularly those done in bad faith, areheld directly accountable.

V. Conclusion.

For the above reasons, we should recog-nize a potential bad-faith claim againstthird-party administrators in the insurancecontext when they, in essence, undertakethe essential functions of an insurancecompany as alleged in this case. This ordi-narily requires a fact-based determination.I would so answer the certified question inthis case.

Wiggins, J., joins this dissent.

,

The CARROLL AIRPORTCOMMISSION,

Appellee,

v.

Loren W. DANNER and PanDanner, Appellants.

No. 17-1458

Supreme Court of Iowa.

Filed May 10, 2019

Background: Local airport commissionpetitioned for abatement of a nuisance,seeking to require farmer to cease opera-tion of and remove his 12-story grainleg/bucket elevator near municipal airportdespite the Federal Aviation Administra-tion’s (FAA) issuance of a no-hazard letterconcerning the structure. The DistrictCourt, Carroll County, William C. Ostlund,J., granted petition following bench trialand issued an injunction. Farmer appealed.The Court of Appeals, 2018 WL 4360933,

636 Iowa 927 NORTH WESTERN REPORTER, 2d SERIES

affirmed. Farmer applied for further re-view, which was granted.Holdings: As matters of first impression,the Supreme Court, Waterman, J., heldthat:(1) Federal Aviation Act did not expressly

preempt state and local restrictions onheight of structures in or near flightpaths;

(2) doctrine of conflict preemption did notapply;

(3) doctrine of field preemption did notapply;

(4) the grain leg/bucket elevator was anaviation hazard constituting a nuisance;but

(5) a $200 daily penalty for each day thenuisance continued to stand unabatedwas inequitable.

Decision of Court of Appeals vacated; dis-trict court judgment affirmed as modified.

1. Appeal and Error O3150Generally, the Supreme Court’s re-

view of a decision by the district courtfollowing a bench trial depends upon themanner in which the case was tried to thecourt.

2. Appeal and Error O3151(1)If case is tried at law, the Supreme

Court’s review is for correction of errors atlaw.

3. Appeal and Error O3151(2)Supreme Court’s review of cases tried

in equity is de novo.

4. Aviation O231Local airport commission’s action

seeking abatement of a nuisance of farm-er’s 12-story grain leg/bucket elevator nearmunicipal airport was tried in equity, andtherefore Supreme Court’s review was denovo, where commission filed the action inequity and sought only equitable relief inthe form of a permanent injunction, andthe district court struck farmer’s jury de-

mand based on its ruling that the actionwas an action in equity.

5. Appeal and Error O3512

While review of cases tried in equityis de novo, Supreme Court gives weight tothe factual findings of the district court,especially with respect to determinationsof witness credibility.

6. Federal Courts O3030

Preemption is a question of federallaw.

7. Aviation O8

The purpose of the Federal AviationAct was to centralize in a single authoritythe power to frame rules for the safe andefficient use of the nation’s airspace. 49U.S.C.A. § 40103(a)(1).

8. Aviation O231

A no-hazard determination of FederalAviation Administration (FAA) with re-spect to a structure that interferes withairspace is reviewable as a final agencydisposition. 49 U.S.C.A. § 40103(a)(1); 14C.F.R. § 77.1.

9. States O18.13

Consideration of issues arising underthe Supremacy Clause starts with the as-sumption that the historic police powers ofthe States are not to be superseded by afederal act unless that is the clear andmanifest purpose of Congress. U.S.Const. art. 6, cl. 2.

10. States O18.3

There are two broad categories ofpreemption, express and implied, and with-in implied preemption there are two subca-tegories, conflict preemption and field pre-emption. U.S. Const. art. 6, cl. 2.

11. States O18.3

‘‘Express preemption’’ occurs whenthe federal statutory text clearly provides


that congressional authority is exclusive.U.S. Const. art. 6, cl. 2.

See publication Words and Phrasesfor other judicial constructions anddefinitions.

12. States O18.3Express preemption requires examin-

ing the statutory language to determinethe legislature’s intent. U.S. Const. art. 6,cl. 2.

13. Aviation O231 Municipal Corporations O53 States O18.17

The Federal Aviation Act, stating that‘‘the United States Government has exclu-sive sovereignty of airspace of the UnitedStates,’’ did not expressly preempt statestatutes concerning airport hazards andlocal airport zoning regulations that a localairport commission sought to apply tofarmer’s 12-story grain leg/bucket elevatornear a municipal airport; there was noclear statutory text that Congress intend-ed to make the Federal Aviation Adminis-tration’s (FAA) authority under the Actexclusive as to restrictions on structuresnear airports. U.S. Const. art. 6, cl. 2; 49U.S.C.A. § 40103(a)(1); Iowa Code Ann.§§ 329.2, 330.17(1), 355.12.

14. States O18.5‘‘Conflict preemption’’ occurs when a

state law conflicts with a federal provision.U.S. Const. art. 6, cl. 2.


15. States O18.5‘‘Conflict preemption’’ occurs when

compliance with both federal and stateregulation is a physical impossibility. U.S.Const. art. 6, cl. 2.


16. States O18.5Conflict preemption is imminent

whenever two separate remedies are

brought to bear on the same activity. U.S.Const. art. 6, cl. 2.

17. States O18.5‘‘Conflict preemption’’ occurs when a

state law is an obstacle to the accomplish-ment of a federal purpose. U.S. Const.art. 6, cl. 2.


18. States O18.5Whether a state law is an obstacle to

the accomplishment of a federal purpose,and thus preempted under the doctrine ofconflict preemption, is to be informed byexamining the federal statute as a wholeand identifying its purpose and intendedeffects. U.S. Const. art. 6, cl. 2.

19. Aviation O231 Municipal Corporations O53 States O18.17

Federal Aviation Act did not preemptstate statutes concerning airport hazardsand local zoning ordinances limiting theheight of structures in or near flight paths,pursuant to doctrine of conflict preemp-tion, and therefore the state and local lawscould be applied to farmer’s 12-story grainleg/bucket elevator near municipal airportnotwithstanding Federal Aviation Adminis-tration’s (FAA) no-hazard determinationwith respect to the structure; it was possi-ble to comply with the federal law and themore stringent state and local laws withoutconflict. U.S. Const. art. 6, cl. 2; 49U.S.C.A. § 40103(a)(1); Iowa Code Ann.§§ 329.2, 330.17(1), 355.12; 14 C.F.R.§§ 77.29(a), 77.31(d).

20. States O18.7‘‘Field preemption’’ arises when Con-

gress has enacted a comprehensivescheme. U.S. Const. art. 6, cl. 2.



21. States O18.7In cases of field preemption, congres-

sional intent to preempt can be inferredfrom a framework of regulation so perva-sive that Congress left no room for theStates to supplement it or where there is afederal interest so dominant that the fed-eral system will be assumed to precludeenforcement of state laws on the samesubject. U.S. Const. art. 6, cl. 2.

22. States O18.7The key question for field preemption

asks at what point the state regulationsufficiently interferes with federal regula-tion that it should be deemed pre-empted.U.S. Const. art. 6, cl. 2.

23. Aviation O231 Municipal Corporations O53

Doctrine of field preemption did notapply to preclude application of local zon-ing ordinances limiting the height of struc-tures in or near flight paths to farmer’s 12-story grain leg/bucket elevator that wasnear municipal airport and that was sub-ject of Federal Aviation Administration’s(FAA) no-hazard determination; the Fed-eral Aviation Act only set minimum stan-dards and implied that another body couldlawfully impose more stringent standards,the FAA’s no-hazard determination had noenforceable legal effect, and the no-hazardletter itself admonished farmer that heremained subject to state and local laws.U.S. Const. art. 6, cl. 2; 49 U.S.C.A.§ 40103(a)(1); Iowa Code Ann. §§ 329.2,330.17(1), 355.12; 14 C.F.R. §§ 77.29(a),77.31(d).

24. States O18.3There is a presumption against pre-

emption. U.S. Const. art. 6, cl. 2.

25. Aviation O231Federal Aviation Administration’s

(FAA) hazard/no-hazard determinationwith respect to tall structures in flightpaths has no enforceable legal effect, andthe FAA is not empowered to prohibit or

limit proposed construction it deems dan-gerous to air navigation. 42 U.S.C.§ 44718(b)(1); 49 U.S.C.A. § 40103(a)(1);14 C.F.R. §§ 77.29(a), 77.31(d).

26. Injunction O1007, 1046

Permanent injunctive relief is an ex-traordinary remedy that is granted onlywhen there is no other way to avoid irrepa-rable harm to the plaintiff.

27. Injunction O1032A plaintiff seeking permanent injunc-

tive relief must establish (1) an invasion orthreatened invasion of a right; (2) thatsubstantial injury or damages will resultunless the request for an injunction isgranted; and (3) that there is no adequatelegal remedy available.

28. Injunction O1032, 1033In deciding whether to grant a perma-

nent injunction, a court must undertake acomparative appraisal of all of the factorsin the case, and consider: (1) the characterof the interest to be protected, (2) therelative adequacy to the plaintiff of injunc-tion and of other remedies, (3) plaintiff’sdelay in bringing suit, (4) plaintiff’s mis-conduct, (5) the relative hardship likely toresult to defendant if injunction is grantedand to plaintiff if it is denied, (6) theinterests of third persons and of the public,and (7) the practicability of framing andenforcing the order or judgment.

29. Injunction O1049When determining whether a perma-

nent injunction is the proper remedy, thecourt must weigh the relative hardship toeach party.

30. Injunction O1016Courts must structure a permanent

injunction so that it will provide relief tothe plaintiff without interfering with thelegitimate and proper actions of the personagainst whom it is granted.


31. Aviation O231Farmer’s 12-story grain leg/bucket

elevator near municipal airport was an avi-ation hazard constituting a nuisance, war-ranting an abatement via permanent in-junction; the other runway would havebeen risky to use in a strong crosswindcommon to that location, the structure wasnot easy to see in certain weather condi-tions, the higher approach required asteeper descent poorly suited to sometypes of aircraft, and a distracted pilotcould fly into structure, with fatal conse-quences.

32. Aviation O231A $200 daily penalty on farmer for

each day the nuisance, in the form of his12-story grain leg/bucket elevator nearmunicipal airport, continued to stand una-bated following grant of permanent injunc-tion against it as an aviation hazard wasinequitable, even though trial court gavefarmer nine months to abate nuisance be-fore the daily penalty started, where farm-er’s appeal was pending during that peri-od, local airport commission’s case was nota slam dunk, farmer had obtained a Fed-eral Aviation Administration (FAA) no-hazard letter and complied with its re-quirements, the no-hazard letter involveda preemption issue that was a question offirst impression, commission failed to ap-peal the no-hazard determination, andcommission waited nearly two years untilafter letter to file action.

On review from the Iowa Court of Ap-peals.

Appeal from the Iowa District Court forCarroll County, William C. Ostlund, Judge.

A farmer seeks further review of a courtof appeals decision declining to givepreemptive effect to a no-hazard determi-nation by the Federal Aviation Adminis-tration. DECISION OF COURT OF AP-PEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED AS MODI-FIED.

Steven D. Hamilton of Hamilton LawFirm, P.C., Storm Lake, for appellants.

Gina C. Badding of Neu, Minnich, Comi-to, Halbur, Neu & Badding, P.C., Carroll,for appellee.

WATERMAN, Justice.

In this appeal, we must determine thelegal effect of a ‘‘no hazard’’ letter issuedby the Federal Aviation Administration(FAA) to a farmer who built a twelve-storygrain leg (bucket elevator) near an airport.The structure intrudes sixty feet into air-space restricted for aviation. Constructionwas well underway when a member of thelocal airport commission cried foul. Theairport commission informed the farmer heneeded a variance and refused to grantone, without waiting for input from federalofficials. Shortly thereafter, the FAA in-vestigated and granted a no-hazard deter-mination, approving the structure on thecondition the farmer paint it and placeblinking red lights on top, which he did.The FAA also adjusted the flight path.This did not satisfy the local commission-ers, who two years later filed this action inequity to force the farmer to remove ormodify the structure. The farmer raised anaffirmative defense that the federal no-hazard determination preempted the localregulations.

The district court, sitting in equity, re-jected the preemption defense and issuedan injunction requiring the farmer to re-move or alter the grain leg at his expenseand imposed a daily penalty after a nine-month grace period to abate the nuisance.The farmer appealed, and we transferredthe case to the court of appeals, whichaffirmed the rejection of his preemptiondefense. We granted the farmer’s applica-tion for further review.


On our de novo review, we determinethat the Federal Aviation Act allows forlocal zoning regulation, and the no-hazardletter did not preempt the local airportzoning regulations as a matter of law. Weaffirm the district court’s finding the struc-ture constitutes a threat to aviation requir-ing abatement. But we conclude that the$ 200 daily penalty should be vacated, andthe nine-month period to modify or removethe structure shall begin anew when proce-dendo issues. We affirm the district courtjudgment as modified.

I. Background Facts and Proceed-ings.

Loren and Pan Danner, husband andwife, live on a farm they own in CarrollCounty, Iowa. Loren has been farming thisland since 1968. Loren formerly raisedlivestock but has exclusively grown rowcrops on the land since 2000. The Dannerfarm sits under the flight path to theArthur N. Neu Municipal Airport, a facili-ty managed by the Carroll Airport Com-mission (the Commission). Local zoning or-dinances mandate a protected zone aroundthe airport that extends 10,000 feet hori-zontally from the end of Runways 13 and31 into an arc 150 feet above the airport.The Danners’ farm sits within this zone.

In 2009, after a particularly good har-vest, Loren realized he needed to find away to more efficiently dry and store har-vested grain. He considered multiple op-tions, but ultimately decided to construct agrain leg (also known as a bucket elevator)with attached storage bins. Loren and twofarm neighbors built five grain-storagebins of varying sizes on the Danners’ farm-land. The five bins stand in a semicirclearound the grain leg. The grain leg is a127-foot-tall structure with separate metaltubes sloping down from its top to eachstorage bin.

The grain leg stands within 10,000 feethorizontally from the end of Runway 31.

The top of the structure is 1413.43 feetabove mean sea level. The protected air-space above the airport is 1354 feet abovemean sea level. The structure reaches aheight of 127 feet off the ground. Theparties agree the grain leg intrudes withinthe airport’s protected airspace by approx-imately sixty feet.

In January 2013, before beginning con-struction of the grain leg, Loren went toCarl Wilburn, the county zoning adminis-trator, to obtain a building permit. Wilburnissued the building permit and granted theDanners an agricultural exemption fromthe county zoning ordinances. The agricul-tural exemption, however, did not exemptthe Danners from the airport zoning ordi-nances. The building permit applicationstates, ‘‘All farm buildings or structuresare subject to the Airport Zoning Ordi-nances which regulate[ ] height and emis-sions in and around the airport air spaceas depicted on the attached diagram[.]’’The diagram attached to the permitshowed the airport’s protected airspace.Despite this warning on the building per-mit application, neither the Danners norWilburn realized that the agricultural ex-emption did not exempt the grain leg fromthe airport zoning regulations. For thatreason, the Commission was never notifiedof the Danners’ application for a buildingpermit, and the Danners failed to requesta variance from the airport zoning ordi-nance. Construction of the grain leg beganin April and was completed in August.

Meanwhile, in June, Commissioner GregSiemann noticed the grain leg constructionand became concerned. The next day, hecontacted Wilburn and Greg Schreck, thecity zoning commissioner. Wilburn in-formed Siemann that he had issued abuilding permit to the Danners with anagricultural exemption and acknowledgedhe was unaware of the local airport zoningrestrictions.


The Commission notified the Dannersthat the grain leg required a variance fromthe airport zoning regulations and in-formed the Danners it would not consentto the violation of the regulations or granta variance. The Commission asked theFAA to perform an aeronautical study ofthe grain leg and its impact on aviationsafety.

In July, after performing the aeronauti-cal study, the FAA issued a ‘‘DETERMI-NATION OF NO HAZARD TO AIRNAVIGATION’’ letter, stating in part,‘‘This aeronautical study revealed that thestructure does exceed obstruction stan-dards but would not be a hazard to airnavigation’’ if the Danners met certainconditions. The FAA instructed the Dan-ners to paint the structure and add redlights to the top of it. The no-hazard letterwarned the Danners,

This determination concerns the effectof this structure on the safe and efficientuse of navigable airspace by aircraft anddoes not relieve the sponsor of compli-ance responsibilities relating to any law,ordinance, or regulation of any Federal,State, or local government body.

The Commission did not seek judicial re-view of the no-hazard determination aspermitted under federal law. See 14 C.F.R.§§ 77.37, .39, .41 (2013). The Danners com-plied with the FAA’s instructions, addinglights and painting the grain leg. The FAAissued a ‘‘Notice to Airmen’’ (NOTAM)that raised the minimum descent levels forthe airport by 100 feet, requiring pilots toapproach the airport at a higher altitude.

Two years later, in July 2015, the Com-mission filed this action on the districtcourt’s equity docket alleging the grain legviolated certain building ordinances, cityand county zoning ordinances, and airportcommission regulations, and constituted anuisance and hazard to air traffic. TheCommission sought equitable relief—an in-junction requiring the Danners to modify

or remove the grain leg. The Danners filedan answer and jury demand. The Dannersraised an affirmative defense of federalpreemption. The district court struck thejury demand because the case was filed inequity. The case proceeded to a benchtrial.

At trial, the following witnesses testifiedfor the Commission: C. Peter Crawford,the engineer for the airport; JohnMcLaughlin, a meteorologist, pilot, andflight instructor; Donald Mensen, fixedbase operator of the airport; Kevin Wit-trock, a commissioner and a pilot; andSiemann, an attorney, pilot, and commis-sioner. Loren Danner testified on his ownbehalf. No pilot or aviation expert testifiedfor the Danners.

Crawford testified about the engineeringsurvey of the grain leg in relation to Run-way 31 of the airport. The survey showedthat the grain leg was 7718 feet from theend of Runway 31 and within the airport’sprotected zone.

The other witnesses gave opinion testi-mony that the grain leg constituted a haz-ard to aviation. The pilots testified abouttheir experiences flying over the grain legwhen landing at the airport and expressedtheir concerns for student pilots or pilotsdistracted while landing. The Commissionalso presented testimony that the grain legwould jeopardize the airport’s ability tosecure federal grant money. The recordindicates, however, that the airport re-ceived two federal grants, one for $ 284,-466 and another for $ 263,200, after theDanners installed the grain leg.

Loren testified that it cost approximate-ly $ 274,928 to construct the grain leg,$ 32,942 to install a concrete drive-overpad, and $ 8000 for an electrical contrac-tor. Loren testified that if the height of thegrain leg was reduced, he could no longerrely on gravity to move the grain from thedistributor to the storage bins. Instead, he


would need to install conveyors. Loren es-timated that the cost to tear down thegrain leg and rebuild it with conveyors toeach of the storage bins in compliance withthe zoning regulations would be approxi-mately $ 450,000. These cost figures wentunchallenged.

In June 2017, the district court foundthat the grain leg violated state and localzoning ordinances and constituted a nui-sance and an airport hazard under IowaCode sections 329.2 and 657.2(8) (2015).The court found that the grain leg did notfall within the agricultural exemption tocertain zoning laws. The court rejected theDanners’ affirmative defense that the no-hazard letter preempted state and localzoning laws, stating,

While the FAA regulations certainlydo apply, the local county regulationscan also be in effect. The local regula-tions take a more stringent stance onwhat a hazard is and how it could affectthe air space. If the FAA regulationscontained all airport and safety regula-tions there would be no need for theState to designate zoning powers to theCommission. The Court finds that theseregulations in fact work together andthe FAA regulations and letter sent donot preempt the local regulations.

The district court gave no evidentiaryweight to the FAA’s aeronautical studyand no-hazard determination. The districtcourt ordered the Danners to either re-move the grain leg or modify its height tocomply with the local regulations regard-ing the airport’s protected airspace. TheDanners filed a motion for judgment not-withstanding the verdict and a motion fornew trial in light of our ruling in State v.Martinez, 896 N.W.2d 737 (Iowa 2017) (ad-dressing preemptive effect of federal immi-gration laws). The district court denied theDanners’ motions.

The Commission moved pursuant toIowa Rule of Civil Procedure 1.904(2) to

enlarge the order to set a date certain forabatement and to impose a daily penaltyafter that date. On September 5, the dis-trict court, after conferring with counsel,set May 1, 2018, as the date by which theDanners had to remove the grain leg orlower it by sixty feet, with a $ 200 perdiem penalty every day thereafter accru-ing against the Danners jointly and sever-ally.

The Danners appealed. We transferredthe case to the court of appeals. The courtof appeals affirmed, concluding that thedoctrines of express, implied, and conflictpreemption did not apply to the FAA no-hazard determination. The Danners filedan application for further review, which wegranted.

II. Standard of Review.

[1–3] The parties disagree as to thestandard of review. The Commission con-tends the case was tried as a law actionbecause the trial court ruled on objections.The Danners contend the case was tried inequity. ‘‘Generally, our review of a decisionby the district court following a bench trialdepends upon the manner in which thecase was tried to the court.’’ Collins Tr. v.Allamakee Cty. Bd. of Supervisors, 599N.W.2d 460, 463 (Iowa 1999). If the case istried at law, our review is for correction oferrors at law. Id. ‘‘Our review of casestried in equity is de novo.’’ City of EagleGrove v. Cahalan Invs., LLC, 904 N.W.2d552, 558 (Iowa 2017).

[4, 5] We conclude this case was triedin equity. The Commission filed the actionin equity and sought only equitable re-lief—a permanent injunction. Notably, thedistrict court struck the Danners’ jury de-mand based on its ruling that this is anaction in equity. Accordingly, our review isde novo. Id. ‘‘Nevertheless, we give weightto the factual findings of the district court,


especially with respect to determinationsof witness credibility.’’ Id.

[6] Preemption, however, is a questionof federal law. See Martinez, 896 N.W.2dat 746–47; Freeman v. Grain ProcessingCorp., 848 N.W.2d 58, 75 (Iowa 2014) (re-viewing principles of federal preemption).‘‘We review the district court’s legal con-clusions for correction of errors at law.’’Walnut Creek Townhome Ass’n v. Deposi-tors Ins., 913 N.W.2d 80, 87 (Iowa 2018).

III. Analysis.

We must decide whether the FAA’s no-hazard determination for the Danners’grain leg preempts state and local zoningordinances limiting the height of struc-tures in or near flight paths. The Dannersrely on Martinez, contending our recentacknowledgment of the supremacy andsweeping preemptive effect of federal im-migration law in that case supports pre-emption under federal aviation law here.In Martinez, we held federal immigrationlaw preempted the state criminal prosecu-tion of an undocumented worker for usingfalse identity papers to gain employment.896 N.W.2d at 757.1 Federal immigrationand aviation law alike can supersede con-flicting local regulations. At first glance,the Danners have more to argue in favorof preemption than Martha Aracely Mar-tinez, who lacked a specific finding in herfavor by federal authorities. By contrast,the FAA specifically investigated the Dan-ners’ grain leg and issued a no-hazarddetermination (subject to conditions, whichthey satisfied). Federal aviation law, how-ever, allows room for local zoning regula-tion. In our view, Martinez is not control-

ling here, and we will focus our analysis onaviation law and court decisions addressingthe legal effect of FAA no-hazard determi-nations.

We first address the Federal AviationAct and the federal regulations promulgat-ed to implement the Act’s safety stan-dards. We next address Iowa state andlocal laws regulating structures near air-ports. We conclude federal law and theFAA no-hazard determination allow for lo-cal regulation of tall structures in flightpaths, and the district court correctly re-jected the Danners’ preemption defense.

A. Federal Law.

[7] 1. The Federal Aviation Act. TheFederal Aviation Act of 1958,2 codified asamended at 49 U.S.C. Subtit. VII, wascreated ‘‘for the purpose of centralizing ina single authority TTT the power to framerules for the safe and efficient use of thenation’s airspace.’’ Air Line Pilots Ass’n,Int’l v. Quesada, 276 F.2d 892, 894 (2d Cir.1960). Pursuant to the Act, ‘‘[t]he UnitedStates Government has exclusive sover-eignty of airspace of the United States.’’ 49U.S.C. § 40103(a)(1) (2017).

The Administrator of the Federal Avia-tion Administration shall develop plansand policy for the use of the navigableairspace and assign by regulation or or-der the use of the airspace necessary toensure the safety of aircraft and theefficient use of airspace.

Id. § 40103(b)(1).

The Administrator ‘‘shall promote safeflight of civil aircraft in air commerce byprescribing TTT regulations and minimum

1. The United States Supreme Court grantedcertiorari in another case addressing thepreemptive effect of immigration law on statecriminal prosecutions for identity theft. Statev. Garcia, 306 Kan. 1113, 401 P.3d 588, 599–600 (2017), cert. granted in part, ––– U.S. ––––,139 S. Ct. 1317, ––– L.Ed.2d –––– (2019).

2. Both the Federal Aviation Administrationand the Federal Aviation Act are referred toas the FAA. In this opinion, we refer to theFederal Aviation Administration as the FAAand the Federal Aviation Act as the ‘‘AviationAct’’ or ‘‘the Act.’’


standards for other practices, methods,and procedure the Administrator findsnecessary for safety in air commerce andnational security.’’ Id. § 44701(a)(5). Thesesafety standards apply to airports such asthe Arthur N. Neu Municipal Airport. Id.§ 44701(b). The Administrator is directedto carry out the safety regulation ‘‘chapterin a way that best tends to reduce oreliminate the possibility or recurrence ofaccidents in air transportation.’’ Id.§ 44701(c).

As one aspect of airport and aircraftsafety, the Act regulates the constructionof structures that interfere with airspace.This includes prescribing notice require-ments for individuals who seek to build orexpand a structure. Id. § 44718(a). TheAct provides for aeronautical studies todetermine the impact of the proposed con-struction. Id. § 44718(b). During an aero-nautical study, the Secretary of Transpor-tation must

(A) consider factors relevant to theefficient and effective use of the naviga-ble airspace, including—

(i) the impact on arrival, departure,and en route procedures for aircraftoperating under visual flight rules;

(ii) the impact on arrival, departure,and en route procedures for aircraftoperating under instrument flightrules;

(iii) the impact on existing public-use airports and aeronautical facilities;

(iv) the impact on planned public-use airports and aeronautical facilities;

(v) the cumulative impact resultingfrom the proposed construction or al-teration of a structure when combinedwith the impact of other existing orproposed structures; and

(vi) other factors relevant to theefficient and effective use of navigableairspace[.]

Id. § 44718(b)(1)(A)(i)–(vi). To implementthe Act’s requirements, Congress empow-

ered the FAA to promulgate regulations.Id. § 40103(b).

2. The federal regulations. Title 14, part77 of the Code of Federal Regulations setsforth notice requirements for proposedconstruction, guidance on determiningwhether proposed construction or an exist-ing structure is an obstruction to air navi-gation, the aeronautical study and haz-ard/no-hazard determination process, andthe procedure for petitions for review ofsuch determinations. 14 C.F.R. § 77.1(2018).

The regulations state that obstructionsare presumed to be airport hazards unlessan aeronautical study determines other-wise. Id. § 77.15(b). The FAA uses thesafety regulations, as well as FAA policyand guidance materials, to determinewhether an obstruction is an airport haz-ard. Id.; see also id. § 77.25(c) (noting thatobstruction standards may be supplement-ed by other guidance).

The regulations provide certain heightsafety standards. The surfaces used to de-termine height safety requirements in-clude ‘‘an initial approach segment, a de-parture area, and a circling approacharea,’’ as well as ‘‘[t]he surface of a takeoffand landing area’’ of an airport. Id.§ 77.17(a). The regulations also establishcertain ‘‘imaginary surfaces’’ in relation tothe runways of an airport, which createimaginary arcs within which an object maybe an airport hazard. Id. § 77.19. The sizeof the imaginary surface depends upon thetype of runway and the types of ap-proaches a pilot can make on the runway.Id. The arcs are all 150 feet above theairport elevation, and the radius is either5000 or 10,000 feet depending on the typeof runway. Id. § 77.19(a).

If the FAA conducts an aeronauticalstudy to determine whether an object is anairport hazard, it will evaluate the follow-


ing in addition to the factors set out in 42U.S.C. § 44718(b)(1),

(4) Airport traffic capacity of existingpublic use airports and public use air-port development plans received beforethe issuance of the final determination;

(5) Minimum obstacle clearance alti-tudes, minimum instrument flight rulesaltitudes, approved or planned instru-ment approach procedures, and depar-ture procedures;

(6) The potential effect on ATC radar,direction finders, ATC tower line-of-sight visibility, and physical or electro-magnetic effects on air navigation, com-munication facilities, and other surveil-lance systems;

(7) The aeronautical effects resultingfrom the cumulative impact of a pro-posed construction or alteration of astructure when combined with the ef-fects of other existing or proposed struc-tures.

14 C.F.R. § 77.29(a); see also id.§ 77.25(b).

After an aeronautical study, the FAAmakes an initial hazard/no-hazard determi-nation. Id. § 77.31. Pursuant to the regula-tions,

[a] Determination of No Hazard to AirNavigation will be issued when the aero-nautical study concludes that the pro-posed construction or alteration will ex-ceed an obstruction standard but wouldnot have a substantial aeronautical im-pact to air navigation. A Determinationof No Hazard to Air Navigation mayinclude the following:

(1) Conditional provisions of a deter-mination.

(2) Limitations necessary to minimizepotential problems, such as the use oftemporary construction equipment.

(3) Supplemental notice requirements,when required.

(4) Marking and lighting recommen-dations, as appropriate.

Id. § 77.31(d). The no-hazard determina-tion will expire eighteen months after itseffective date. Id. § 77.33(b).

The regulations provide a procedure topetition the FAA to reconsider or revisethe determination, provided that construc-tion has not begun and the petition issubmitted at least fifteen days before thedetermination expires. Id. § 77.35(a). Thisdetermination will become final unless theFAA grants discretionary review. Id.§ 77.37, .39 (discussing the procedure fordiscretionary review). An individual seek-ing discretionary review must do so withinthirty days of the date of the determina-tion. Id. § 77.39(a).

[8] The no-hazard determination is re-viewable as a final agency disposition. Air-craft Owners & Pilots Ass’n v. FAA, 600F.2d 965, 966 n.2 (D.C. Cir. 1979). FAA no-hazard determinations have been success-fully challenged under federal judicial re-view. See, e.g., Town of Barnstable v. FAA,659 F.3d 28, 35–36 (D.C. Cir. 2011) (vacat-ing FAA no-hazard determination for off-shore wind farm); Clark County v. FAA,522 F.3d 437, 443 (D.C. Cir. 2008) (vacat-ing FAA no-hazard determination for windfarm near Las Vegas airport).

In Aircraft Owners & Pilots Ass’n, theUnited States Court of Appeals for theDistrict of Columbia discussed the limitedlegal effect of a hazard/no-hazard determi-nation:

Once issued, a hazard/no-hazard de-termination has no enforceable legal ef-fect. The FAA is not empowered to pro-hibit or limit proposed construction itdeems dangerous to air navigation. Nev-ertheless, the ruling has substantialpractical impact. The Federal Communi-cations Commission, for example, con-siders the FAA’s classification in grant-ing permits for the construction ofbroadcast towers. The ruling may alsoaffect the ability of a sponsor proposing


construction to acquire insurance or tosecure financing. Primarily, however,the determination promotes air safetythrough ‘‘moral suasion’’ by encouragingthe voluntary cooperation of sponsors ofpotentially hazardous structures.

600 F.2d at 966–67 (footnotes omitted) (ci-tation omitted).

‘‘Nonetheless, a hazard determinationcan hinder the project sponsor in acquiringinsurance, securing financing or obtainingapproval from state or local authorities.’’BFI Waste Sys. of N. Am., Inc. v. FAA,293 F.3d 527, 530 (D.C. Cir. 2002); see alsoWhite Indus., Inc. v. FAA, 692 F.2d 532,533 n.1 (8th Cir. 1982) (‘‘Although the FAAdetermination has no enforceable legal ef-fect, it does have substantial practical im-pact as the Federal Communications Com-mission considers the determination inmaking its decisions with respect to pro-posed construction.’’).

B. Iowa Law. The State of Iowa andCarroll County each have enactments ad-dressing airport hazards. Any city or coun-ty with an airport may establish an airportcommission to manage and control the air-port. Iowa Code § 330.17(1). These com-missions have ‘‘all of the powers in relationto airports granted to cities and countiesunder state law, except powers to sell theairport.’’ Id. § 330.21. These powers in-clude the authority to make decisions withregard to zoning to prevent airport haz-ards. Id. §§ 329.2–.3. ‘‘In the event of anyconflict between any airport zoning regula-tions adopted or established under thischapter and any other regulations applica-ble to the same area, TTT the more strin-gent limitation or requirement shall gov-ern and prevail.’’ Id. § 329.8.

The Iowa Code defines an airport haz-ard as

any structure or tree or use of landwhich would exceed the federal obstruc-tion standards as contained in 14 C.F.R.§ 77.21, 77.23 and 77.25 as revised

March 4, 1972, and which obstruct theair space required for the flight of air-craft and landing or take-off at an air-port or is otherwise hazardous to suchlanding or taking off of aircraft.

Id. § 329.1(2).

With regard to airport hazards, section329.2 states,

It is hereby found that an airporthazard endangers the lives and propertyof users of the airport and of occupantsof land and other persons in its vicinity,and also, if of the obstruction type, ineffect reduces the size of the area avail-able for the landing, taking off and ma-neuvering of aircraft, thus tending todestroy or impair the utility of the air-port and the public investment therein.Accordingly, it is hereby declared:

1. That the creation or establishmentof an airport hazard is a public nuisanceand an injury to the community servedby the airport in question.

2. That it is necessary in the interestof public health, safety, and general wel-fare that the creation or establishmentof airport hazards be prevented.

3. That this should be accomplished,to the extent legally possible, by properexercise of the police power.

4. That the prevention of the creationor establishment of airport hazards, andthe elimination, removal, alteration, miti-gation, or marking and lighting of exist-ing airport hazards are public purposesfor which municipalities may raise andexpend public funds, as an incident tothe operation of airports, to acquire landor property interests therein.

Id.

If an airport hazard exists, the Commis-sion ‘‘may maintain actions in equity torestrain and abate as nuisances the cre-ation or establishment of airport hazardsappertaining to said airport, in violation of


any zoning regulations adopted or estab-lished pursuant to the provisions of thischapter.’’ Id. § 329.5; see also id.§ 657.2(8) (‘‘Any object or structure here-after erected within one thousand feet ofthe limits of any municipal or regularlyestablished airport or landing place, whichmay endanger or obstruct aerial naviga-tion, including take-off and landing, unlesssuch object or structure constitutes a prop-er use or enjoyment of the land on whichthe same is located.’’).

The Code provides a procedure for ap-plying for a variance to zoning laws. Id.§ 329.11. A variance

shall be allowed where a literal applica-tion or enforcement of the regulationswould result in practical difficulty orunnecessary hardship and the reliefgranted would not be contrary to thepublic interest, but would do substantialjustice and be in accordance with thespirit of the regulations and this chap-ter; provided, however, that any suchvariance may be allowed subject to anyreasonable conditions that the board ofadjustment may deem necessary to ef-fectuate the purposes of this chapter.

Id.The Carroll County ordinances state

with regard to placement of towers andantennas, ‘‘All tower height allowancesoutlined in the preceding sections are sub-ject to approval from the municipal Air-port Commission.’’ Carroll County, Iowa,Code of Ordinances § 14.15.040.02.7 (2017)(emphasis omitted); see also id.§ 14.16.010.04 (‘‘All structures with aheight greater than 30 feet shall be re-viewed by the Carroll Airport Commis-sion.’’). An applicant for a building permitmust file an application with the countyzoning administrator, including ‘‘[d]ocu-mentation that the proposed tower site andheight have been approved by the appro-priate Airport Commission.’’ Id.§ 14.15.040.03.5 (emphasis omitted).

The county board of adjustment, in com-pliance with Iowa Code section 355.12, ispermitted to hear cases regarding ‘‘[v]ari-ances to zoning district requirementswhere there are unusual conditions or cir-cumstances that cause a hardship whenthe provisions of zoning are strictly ap-plied.’’ Id. § 14.18.010.07.3.

The board shall reject any such applica-tion or appeal that is not filed within (10)days of the Zoning Administrator’s deci-sion. Also, the secretary shall reject anysuch application or appeal unless thesame are made on prescribed formsproperly filled out, with all required dataattached.

Id. § 14.18.010.08.4.

The airport zoning regulations define anairport hazard as

any structure or tree or use of land thatwould exceed the Federal obstructionstandards as contained in 14 CFR 77.21,77.23, and 77.25, and that obstructs theairspace required for the flight of air-craft and landing or takeoff at an airportor is otherwise hazardous to such land-ing or taking off of aircraft.

Id. § 171.01(3).

The county airport zoning regulationsestablish ‘‘imaginary surfaces’’ as requiredby the federal regulations, creating a pro-tected zone encompassing,

1. Horizontal Zone. The land lyingunder a horizontal plane 150 feet abovethe established elevations, the perimeterof which is constructed by swinging arcsof 10,000 feet radii from the center ofeach end of the primary surface of Run-ways 13 and 31, and 5,000 feet for Run-ways 3 and 21, and connecting the adja-cent arcs by lines tangent to those arcs.No structure shall exceed 150 feet abovethe established airport elevation in thehorizontal zone, as depicted on the Ar-


thur N. Neu Municipal Airport HeightZoning Map.

Id. § 171.02(1).The regulations also state,

5. Increase in Elevation of Structures.No structure shall be erected in theCounty that raises the published mini-mum descent altitude for an instrumentapproach to any runway, nor shall anystructure be erected that causes theminimum obstruction clearance altitudeor minimum en route altitude to be in-creased on any Federal airway in theCounty.

Id. § 171.02(5).A landowner may request a variance

from these regulations by applying to theboard of adjustment and submitting a copyof the application to the Commission. Id.§ 171.05. The Commission is permitted togive its opinion on the aeronautical effectsof a possible variance within fifteen days ofreceiving its copy of the application. Id.

The airport regulations state, similar tothe Iowa Code, that with regard to con-flicting regulations the more stringent re-quirement prevails:

Where there exists a conflict betweenany of the regulations or limitations pre-scribed in this chapter and any otherregulations applicable to the same area,whether the conflict is with respect toheight of structures, the use of land, orany other matter, the more stringentlimitation or requirement shall governand prevail.

Id. § 171.10.C. Application of Preemption Princi-

ples. The Danners argue that the FAA no-hazard determination for their grain legpreempts a contrary determination by theCommission. The Danners contend that al-lowing local airports to determine whatconstitutes an airport hazard would imper-missibly alter the federal standards. Thedistrict court and court of appeals disa-greed and determined that federal law al-

lows for overlapping local regulation ofhazards. We agree that local regulation oftall structures near flight paths is recog-nized under federal aviation law.

[9] Under the Supremacy Clause ofthe United States Constitution, ‘‘the Lawsof the United States TTT shall be the su-preme Law of the Land TTT, any Thing inthe TTT Laws of any State to the Contrarynotwithstanding.’’ U.S. Const. art. VI, cl. 2.

Consideration of issues arising underthe Supremacy Clause ‘‘start[s] with theassumption that the historic police pow-ers of the States [are] not to be super-seded by TTT Federal Act unless that[is] the clear and manifest purpose ofCongress.’’

Abdullah v. Am. Airlines, Inc., 181 F.3d363, 366 (3d Cir. 1999) (alterations in origi-nal) (quoting Cipollone v. Liggett Grp.,Inc., 505 U.S. 504, 516, 112 S. Ct. 2608,2617, 120 L.Ed.2d 407 (1992)).

[T]he Supremacy Clause has been inter-preted to mean that even if a statestatute is enacted in the execution ofacknowledged state powers, state lawsthat ‘‘interfere with, or are contrary tothe laws of Congress’’ must yield tofederal law.

Martinez, 896 N.W.2d at 746 (quoting Gib-bons v. Ogden, 22 U.S. 1, 211, 9 Wheat. 1,82, 6 L.Ed. 23 (1824)). The SupremacyClause is implemented through the pre-emption doctrine. Id.

We have recognized ‘‘[t]here is a pre-sumption against preemption which coun-sels a narrow construction of preemptionprovisions.’’ Huck v. Wyeth, Inc., 850N.W.2d 353, 363 (Iowa 2014) (alteration inoriginal) (quoting Ackerman v. Am. Cyan-amid Co., 586 N.W.2d 208, 213 (Iowa1998)); see also Freeman, 848 N.W.2d at83 (discussing ‘‘cooperative federalism’’ un-der which the federal law sets a floor, nota ceiling, and states may impose more


stringent protections). That is what wehave here under aviation laws regulatingthe height of structures in flight paths, aswe explain below.

[10] There are two broad categories ofpreemption, express and implied. Mar-tinez, 896 N.W.2d at 746. Within impliedpreemption there are two subcategories,conflict preemption and field preemption.Id. We will address express preemption,conflict preemption, and field preemptionin turn.

[11, 12] 1. Express preemption. ‘‘Ex-press preemption occurs when the federalstatutory text clearly provides that con-gressional authority is exclusive.’’ Id. Ex-press preemption requires examining thestatutory language to determine the legis-lature’s intent. Id.

[13] Although the Aviation Act statesthat ‘‘[t]he United States Government hasexclusive sovereignty of airspace of theUnited States,’’ 49 U.S.C. § 40103(a)(1),there is no clear statutory text that Con-gress intended to make the FAA’s authori-ty under the Aviation Act exclusive as torestrictions on structures near airports.We agree with the court of appeals thatthe Aviation Act does not expresslypreempt the state statutes and local ordi-nances at issue here.

[14–18] 2. Conflict preemption. ‘‘Con-flict preemption occurs when a state lawconflicts with a federal provision.’’ Mar-tinez, 896 N.W.2d at 747. ‘‘Conflict pre-emption occurs when ‘compliance withboth federal and state regulation is a phys-ical impossibility.’ ’’ Id. (quoting Fla. Lime& Avocado Growers, Inc. v. Paul, 373 U.S.132, 142–43, 83 S. Ct. 1210, 1217, 10L.Ed.2d 248 (1963)). ‘‘Conflict preemptionalso is imminent whenever two separateremedies are brought to bear on the sameactivity.’’ Id. ‘‘Conflict preemption also oc-curs when a state law is an obstacle to theaccomplishment of a federal purpose.’’ Id.

‘‘What is a sufficient obstacle is a matter ofjudgment, to be informed by examiningthe federal statute as a whole and identify-ing its purpose and intended effects.’’ Id.(quoting Crosby v. Nat’l Foreign TradeCouncil, 530 U.S. 363, 373, 120 S. Ct. 2288,2294, 147 L.Ed.2d 352 (2000)).

[19] The district court concluded thatboth the federal and local regulations couldbe in effect and regulate airport hazardswithout conflict. The district court conclud-ed the Aviation Act did not preempt thelocal regulations stating,

The local regulations take a more strin-gent stance on what a hazard is and howit could affect the air space. If the FAAregulations contained all airport andsafety regulations there would be noneed for the State to designate zoningpowers to the Commission.

The court of appeals determined the doc-trine of conflict preemption did not applybecause compliance with both statutes wasnot impossible. Because the state regula-tions impose a greater burden, it is possi-ble to comply with both the state andfederal regulations. This is supported, thecourt determined, by the statement in theno-hazard determination that ‘‘[t]his deter-mination TTT does not relieve [the Dan-ners] of compliance responsibilities relat-ing to any law, ordinance, or regulation byany Federal, State, or local governmentbody.’’

It is possible to comply with the federal,state, and local laws without conflict. Weagree with the district court and court ofappeals that the doctrine of conflict pre-emption does not apply in this case.

[20, 21] 3. Field preemption. ‘‘Fieldpreemption arises when Congress has en-acted a comprehensive scheme.’’ Id. at 746.In cases of field preemption,

congressional intent to preempt can beinferred from a framework of regulation


‘‘so pervasive TTT that Congress left noroom for the States to supplement it’’ orwhere there is a ‘‘federal interest TTT sodominant that the federal system will beassumed to preclude enforcement ofstate laws on the same subject.’’

Id. at 746–47 (quoting Rice v. Santa FeElevator Corp., 331 U.S. 218, 230, 67 S. Ct.1146, 1152, 91 L.Ed. 1447 (1947)).

[22] ‘‘[C]oncluding that Congress in-tended to occupy the field of air safetydoes not end our task.’’ Goodspeed AirportLLC v. E. Haddam Inland Wetlands &Watercourses Comm’n, 634 F.3d 206, 210(2d Cir. 2011). ‘‘The key question is thus atwhat point the state regulation sufficientlyinterferes with federal regulation that itshould be deemed pre-empted[.]’’ Id. at211 (alteration in original) (quoting Gade v.Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S.88, 107, 112 S. Ct. 2374, 2387, 120 L.Ed.2d73 (1992)).

A variety of state and local laws havebeen preempted by the Aviation Act, in-cluding tort law,3 state regulation of airtravel,4 and noise regulations.5 However, inGoodspeed Airport, the environmental reg-ulation at issue—requiring a permit to cutdown trees on wetlands—was notpreempted because it did not sufficientlyinterfere with the federal regulations. Id.at 212. The court declined to determine

whether the FAA Regulations wouldpreempt the state and local laws, regula-tions, and actions challenged here if thetrees were declared hazards and theirremoval ordered by the FAA. Signifi-cantly, in this case the federal govern-ment renounced any intention—indeed,questioned whether it had the authori-ty—to declare the trees hazards and/ororder their removal.

Id. at 208 n.1.

Courts have found ample room for stateand local regulation. See, e.g., City of

3. See, e.g., Montalvo v. Spirit Airlines, 508F.3d 464, 468 (9th Cir. 2007) (holding that theAviation Act preempted state law duty-to-warn claims for passengers who developeddeep vein thrombosis on domestic flights);Abdullah, 181 F.3d at 371–72 (holding thatair safety standards as they relate to a stan-dard of care for state negligence claims werepreempted); In re Sept. 11 Litig., 811 F. Supp.2d 883, 891 (S.D.N.Y. 2011) (finding that fed-eral law preempted state law with regard tothe standard of care applicable to the defen-dant’s conduct in allowing terrorists to hijackand crash a plane, noting that if state lawcontrolled ‘‘air carriers then would be sub-jected to an untenable mixture of 50 differentstate legal regimes, and not to a uniformfederal legal regime’’); In re Air Crash NearClarence Ctr., N.Y., on Feb. 12, 2009, 798 F.Supp. 2d 481, 486 (W.D.N.Y. 2011) (findingthat the FAA preempted state law negligencestandard of care). But see Sikkelee v. PrecisionAirmotive Corp., 822 F.3d 680, 683 (3d Cir.2016) (holding that the FAA did not preemptdesign defect claims).

4. See, e.g., U.S. Airways, Inc. v. O’Donnell, 627F.3d 1318, 1329 (10th Cir. 2010) (‘‘Based on

the pervasive federal regulations concerningflight attendant and crew member trainingand the aviation safety concerns involvedwhen regulating an airline’s alcoholic bever-age service, we conclude that [the state liquorlaw’s] application to an airline implicates thefield of airline safety that Congress intendedfederal law to regulate exclusively. Thus, NewMexico’s regulatory efforts are impliedlypreempted.’’); Air Transp. Ass’n of Am., Inc. v.Cuomo, 520 F.3d 218, 219 (2d Cir. 2008) (percuriam) (finding that federal law preempted astate law establishing a passenger’s bill ofrights); French v. Pan Am Express, Inc., 869F.2d 1, 1 (1st Cir. 1989) (holding that pilotregulation statute was preempted).

5. See, e.g., City of Burbank v. Lockheed AirTerminal Inc., 411 U.S. 624, 638–40, 93 S. Ct.1854, 1862–63, 36 L.Ed.2d 547 (1973) (con-cluding that the Aviation Act preempted a cityordinance attempting to control noise by pro-hibiting aircraft from taking off between 11p.m. and 7 a.m.); Burbank-Glendale-PasadenaAirport Auth. v. City of Los Angeles, 979 F.2d1338, 1341 (9th Cir. 1992) (finding that localregulations regarding airport noise werepreempted).


Cleveland v. City of Brook Park, 893 F.Supp. 742, 751 (N.D. Ohio 1995) (‘‘While itis certainly true that runway placementwill have some tangential effect on flightoperations, the question of whether andwhere to construct a runway does not sub-stantially affect the use of airspace. TTTThe Federal Aviation Act does not occupythe field of land use regulations in such away so as to preempt Brook Park’s ordi-nances.’’).

[23] The court of appeals concludedthe doctrine of field preemption did notapply because the Act only sets minimumstandards and implies that another bodymay lawfully impose more stringent stan-dards. The court also noted that the FAAdid not intend for the no-hazard determi-nation to supersede state and local lawbecause it has no enforceable legal effect.We agree for the reasons explained below.

4. Cases addressing the preemptive ef-fect of FAA no-hazard determinations fortall structures in flight paths. We nowturn to the several cases specifically adju-dicating whether FAA no-hazard determi-nations preempt local regulation of theheight of structures in flight paths.

The Commission relies on Common-wealth v. Rogers, an appeal by a businessowner found guilty of violating a statestatute by erecting a ninety-five-foot-tallsign that encroached on an airport’s ap-proach area, without seeking prior approv-al from the Pennsylvania Department ofTransportation. 430 Pa.Super. 253, 634A.2d 245, 246–47 (1993). The Rogers court,citing to Aircraft Owners & Pilots Ass’n,concluded that because FAA hazard/no-hazard determinations had no enforceablelegal effect, the ability to prohibit or limitproposed construction because of the haz-ard it poses to air navigation ‘‘has been leftto the states.’’ Id. at 250. The Rogers courtconcluded, ‘‘Thus, although Congress hasconcerned itself with the hazards posed bytall structures, it has left untouched the

legal enforcement of standards, which arepeculiarly adapted to local regulation.Therefore, the states may legislate con-cerning such matters.’’ Id. The court notedthat ‘‘[b]y enacting [the state statute], thelegislature empowered [the department oftransportation] to enforce mandatory com-pliance with FAA regulations which aredesigned to identify potential hazards toair navigation.’’ Id. at 253. ‘‘Unlike thedetermination made by the FAA, [the de-partment of transportation’s] determina-tion is enforceable, rather than advisory.’’Id. ‘‘In order to ensure that landownerswill comply with the requirement of priorapproval by [the department of transporta-tion], the legislature has mandated thatthe failure to seek approval is a summaryoffense.’’ Id. The court concluded this wasa proper exercise of police power, and ‘‘[i]nthis manner, [the department of transpor-tation] can ensure that the safety regula-tions promulgated by the FAA are applieduniformly throughout the Commonwealthto establish a minimum threshold of safety,irrespective of different standards whichmay be adopted at the local level.’’ Id.Rogers is distinguishable, however, be-cause the defendant had not actually re-ceived an FAA no-hazard determination asto the tall sign at issue.

In La Salle National Bank v. CookCounty, a developer sought to constructeight-story apartment buildings near a na-val air base. 34 Ill.App.3d 264, 340 N.E.2d79, 81–82 (1975). The developer relied on‘‘a letter it received from the FAA indicat-ing the proposed construction did not vio-late the height restrictions imposed byFAA on buildings in military airport ap-proach zones.’’ Id. at 83. County zoningofficials nevertheless denied a requiredzoning reclassification based on local zon-ing height restrictions and pilot testimonythat the buildings would pose a hazard. Id.


at 81, 83–84. The appellate court, conclud-ing that the local standards did not impedeaviation, affirmed the rejection of the de-veloper’s federal preemption claim. Id. at87–88, 340 N.E.2d 79, 81–82. Similarly,here, the Commission’s pilot witnesses tes-tified the grain leg posed a hazard toaviation.

The Commission also relies on Aeronau-tics Commission of Indiana v. State ex rel.Emmis Broadcasting Corp., 440 N.E.2d700 (Ind. Ct. App. 1982). There, businessowners sought to purchase the assets of aradio station but wanted to move thebroadcast tower. Id. at 701–02. The pro-spective purchaser was required to coordi-nate with the Federal CommunicationsCommission, ‘‘vested with authority to reg-ulate the proposed construction and main-tenance of broadcast towers[,]’’ as well asthe FAA, vested with the authority to de-termine ‘‘whether a proposed antennapresents a hazard to air navigation.’’ Id. at702 & n.2. The FAA performed an aero-nautical study and determined the antennaand tower would not be a hazard to airnavigation. Id. at 702. However, the aero-nautics commission advised the purchaserthat it must also obtain a permit pursuantto the Indiana High Structures Safety Actbefore constructing the tower. Id. Theaeronautics commission denied the compa-ny’s application for a permit. Id. TheIndiana Court of Appeals, relying on Air-craft Owners & Pilots Ass’n, concludedthat state and local regulations regardingtall structures were not preempted by theAviation Act. Id. at 704–06. The court de-termined that

Congress has concerned itself with thepotential hazards for air safety createdby tall structures, but it has purposelyleft untouched a distinctive part of thesubject—the legal enforcement of stan-dards—peculiarly adapted to local reg-ulation; thus the state may legislateconcerning such local matters which

Congress could have covered but didnot.

Id. at 706.

On the other hand, a federal districtcourt expressly declined to follow Aero-nautics Commission of Indiana and, in-stead, held that the FAA’s no-hazard de-termination as to placement of a broadcasttower trumped a contrary local regulatorydecision. Big Stone Broad., Inc. v. Lind-bloom, 161 F. Supp. 2d 1009, 1021 (D.S.D.2001). There, a radio broadcaster suedmembers of the South Dakota AeronauticsCommission (SDAC) for injunctive and de-claratory relief, challenging the SDAC’sdenial of a permit to place an 875-footbroadcast tower near a state road used asa flight path for small aircraft. Id. at 1011–13. The FAA had issued a no-hazard deter-mination for the tower in that location. Id.The Big Stone court noted the IndianaCourt of Appeals ‘‘rooted its rationale’’ inthe FAA’s lack of power to compel a stateregulator to allow construction of a towerthe state deemed hazardous to aviation‘‘notwithstanding a[n] FAA determinationto the contrary.’’ Id. at 1020–21. The BigStone court ‘‘craft[ed] a more limited rem-edy’’ by enjoining the SDAC

from acting to prohibit the constructionof proposed broadcast towers when theFAA, in adherence to its statutory andregulatory provisions, determines thatthe proposed tower poses no hazard toair traffic and safety. In essence, then,the court enjoins [the SDAC] from veto-ing a[n] FAA determination of ‘‘no haz-ard’’ in connection with radio broadcasttowers.

Id. at 1021. Big Stone has not been fol-lowed by other courts. It is also distin-guishable. Here, we are reviewing a judg-ment on a bench trial determining thegrain leg is hazardous to aviation and vio-lates local zoning requirements, ratherthan a district court ruling accommodating


competing federal and state agency deci-sions. And, unlike Big Stone, the Commis-sion was not really ‘‘vetoing’’ the FAA’sno-hazard determination because the no-hazard letter itself admonished the Dan-ners that they remained subject to localzoning requirements.

In Davidson County Broadcasting, Inc.v. Rowan County Board of Commission-ers, the North Carolina Court of Appealsconsidered whether a county was preempt-ed from regulating air safety. 186N.C.App. 81, 649 S.E.2d 904, 907 (2007). Inthat case, a broadcasting company appliedfor a conditional use permit to construct a1350-foot radio tower near a private air-port. Id. at 907–08. After a public hearing,the county board of commissioners deniedthe permit, finding that the tower wouldpenetrate air traffic patterns at the privateairport and would constitute ‘‘hazardoussafety conditions’’ in violation of the countyzoning code. Id. The board reached thisdecision despite a no-hazard determinationfrom the FAA. Id. However, the boardnoted, ‘‘[T]he FAA’s review included onlyflight operations to and from public air-ports. Miller Airpark is a private airport towhich the FAA regulations do not apply.’’Id. at 908. The court found no conflictbetween the Act and the county zoninglaw. Id. at 911. The court based this con-clusion on the language in the no-hazardletter stating that the no-hazard letter‘‘does not relieve the sponsor of complianceresponsibilities relating to any law, ordi-nance, or regulation of any Federal, State,or local government body.’’ Id. The samelanguage is found in the FAA’s no-hazardletter for the Danners’ grain leg.

[24, 25] On balance, we decline to holdthe FAA no-hazard determinationpreempted enforcement of local zoning re-quirements. We reiterate that ‘‘[t]here is apresumption against preemption.’’ Huck,850 N.W.2d at 363 (alteration in original)(quoting Ackerman, 586 N.W.2d at 213).

Federal courts recognize that the FAA’s‘‘hazard/no-hazard determination has noenforceable legal effect’’ and ‘‘[t]he FAA isnot empowered to prohibit or limit pro-posed construction it deems dangerous toair navigation.’’ Aircraft Owners & PilotsAss’n, 600 F.2d at 966–67. Accordingly,that role must fall to state and local gov-ernment, indicating Congress left room for‘‘cooperative federalism.’’ See Freeman,848 N.W.2d at 83. In our view, the betterreasoned authorities discussed above holdstate and local regulators can imposestricter height restrictions on structures inflight paths notwithstanding an FAA no-hazard determination. Finally, we rely onthe very language of this specific no-haz-ard determination, which expressly warnedthe Danners that they still must complywith state and local laws.

D. Whether the District Court’s In-junctive Relief Should Be Affirmed. OnJune 16, 2017, the district court sustainedthe Commission’s petition for abatement,finding the grain leg was an airport haz-ard constituting a nuisance. The districtcourt ordered the grain leg to be removedor reconstructed at a lower height. TheDanners filed a motion for judgment not-withstanding the verdict or for new trial,arguing federal preemption based on ourholding in Martinez. The Commission fileda motion to set a date by which the grainleg had to be removed and to impose a perdiem penalty for each day after the dead-line the grain leg continued to stand.

The court rejected the Danners’ pre-emption defense based on Martinez anddenied their motion for judgment notwith-standing the verdict. The court set a May1, 2018 removal or modification deadlineand, relying on Iowa Code section 329.14,imposed a $ 200 per day penalty com-mencing May 1, 2018, for each day thenuisance continued to stand unabated.That penalty has continued to accrue dur-


ing this appeal at an annual rate of $ 73,-000. On our de novo review, we affirm thenuisance determination and remedy exceptthat we vacate the per diem penalty asinequitable.

[26, 27] ‘‘Permanent injunctive relief isan extraordinary remedy that is grantedonly when there is no other way to avoidirreparable harm to the plaintiff.’’ LewisInvs., Inc. v. City of Iowa City, 703N.W.2d 180, 185 (Iowa 2005).

A plaintiff seeking permanent injunctiverelief must establish ‘‘(1) an invasion orthreatened invasion of a right; (2) thatsubstantial injury or damages will resultunless the request for an injunction isgranted; and (3) that there is no ade-quate legal remedy available.’’

City of Okoboji v. Parks, 830 N.W.2d 300,309 (Iowa 2013) (quoting Cmty. StateBank, Nat’l Ass’n v. Cmty. State Bank,758 N.W.2d 520, 528 (Iowa 2008)).

[28] The court must undertake ‘‘a com-parative appraisal of all of the factors inthe case,’’ and consider the following:

(a) the character of the interest to beprotected,(b) the relative adequacy to the plaintiffof injunction and of other remedies,(c) plaintiff’s delay in bringing suit,(d) plaintiff’s misconduct,(e) the relative hardship likely to resultto defendant if injunction is granted andto plaintiff if it is denied,(f) the interests of third persons and ofthe public, and(g) the practicability of framing and en-forcing the order or judgment.

Helmkamp v. Clark Ready Mix Co., 214N.W.2d 126, 130 (Iowa 1974) (quoting Re-statement (Second) of Torts, TentativeDraft No. 19, § 936(1)).

[29, 30] ‘‘When determining whetheran injunction is the proper remedy, thecourt must weigh the relative hardship toeach party.’’ In re Langholz, 887 N.W.2d

770, 779 (Iowa 2016). Courts must struc-ture permanent injunctions so that it willprovide relief to the plaintiff without ‘‘in-terfer[ing] with the legitimate and properactions of the person against whom it isgranted.’’ Id. at 779–80.

[31, 32] ‘‘In equity cases, especiallywhen considering the credibility of wit-nesses, [we] give[ ] weight to the fact find-ings of the district court, but [we are] notbound by them.’’ Iowa R. App. P.6.904(3)(g). The Commission presentedcredible opinion testimony from experi-enced pilots familiar with the airport. Thedistrict court credited their testimony thatthe grain leg poses a hazard to aviationthere. So do we. The other runway wouldbe risky to use in a strong crosswind com-mon to that location. The structure is noteasy to see in certain weather conditions.The higher approach requires a steeperdescent poorly suited to some types ofaircraft. A distracted pilot might fly intothe twelve-story elevator, with fatal conse-quences. We affirm the district court’sfinding that the grain leg constitutes anuisance and hazard to aviation. It is the$ 200 daily penalty accruing during thisappeal that gives us pause.

Iowa Code section 329.14 provides,‘‘Each violation of [the airport zoning]chapter or of any regulations, order, orrules promulgated pursuant to this chap-ter, shall constitute a simple misdemeanorand each day a violation continues to existshall constitute a separate offense.’’ Thestatutory fine for a simple misdemeanor is‘‘at least sixty-five dollars but not to ex-ceed six hundred twenty-five dollars.’’ Id.§ 903.1(a).

Although the district court gave theDanners nine months to abate the nui-sance before commencing the $ 200 dailypenalty, the Danners’ appeal was pendingduring that grace period. The district courtdid not find the Danners in contempt or in


willful violation of the court’s abatementorder. The Commission’s case against theDanners was no slam dunk. It is undisput-ed that the Danners fully complied withthe FAA directive to paint the structureand place red lights on top. The FAAadjusted the flight path by 100 verticalfeet to accommodate the grain leg. TheFAA determined that these measures alle-viated the danger to aviation posed by thestructure.6 The Commission failed to ap-peal the FAA no-hazard determination.Further, despite the trial testimony thatthe grain leg poses a hazard, the Commis-sion waited nearly two years to file thisaction. The Danners presented uncontro-verted testimony that the cost to removethe grain leg and rebuild it elsewhere isroughly $ 450,000 and that it would costseveral hundred thousand dollars to modi-fy the grain leg by reducing its height. Wereject as speculative the testimony that thegrain leg will impede efforts to obtain fu-ture grants from the same federal govern-ment that deemed the structure nonhaz-ardous, especially since grants of $ 284,466and $ 263,200 were awarded after thegrain leg was built. We factor these consid-erations into our equitable calibration ofthe postappeal deadline to bring down thegrain leg.

The Danners presented a question offirst impression in this jurisdiction as towhether the FAA’s aeronautical study andno-hazard determination preempted theCommission’s contrary determination thatthe grain leg is a hazard to aviation. Whilethe district court, court of appeals, andnow our court declined to give the FAAletter preemptive effect, this legal issuewas not finally resolved until our opiniontoday. The caselaw in other jurisdictions isconflicting, and the Danners’ position hadsome support. See, e.g., Big Stone, 161 F.Supp. 2d at 1021. We find the Danners

pursued this appeal to conclusion based ontheir good faith and objectively reasonablebelief in their legal position.

Although we now affirm the districtcourt’s nuisance finding, this was a fairfight on the merits. Enforcement of theper diem penalty under these circum-stances would have a chilling effect on alitigant’s right to appeal a question of firstimpression in this jurisdiction. The Dan-ners exercised their right to appeal, whichhas now run its course. We affirm theinjunction and hold abatement is required,but conclude it would be inequitable toimpose the $ 200 daily penalty on the Dan-ners from May 1, 2018, as originally or-dered by the district court until they abatethe nuisance. We elect to vacate the daily$ 200 penalty accruing during this appeal.Cf. Iowa Code § 329.4(9) (suspending en-forcement penalties during appeal from ex-traterritorial airport hazard determina-tion); Palmer Coll. of Chiropractic v. IowaDist. Ct., 412 N.W.2d 617, 622 (Iowa 1987)(holding in contempt proceeding that fail-ure to obey injunction constituted a singlecontinuous violation and setting aside dailypenalty); see also Ventres v. GoodspeedAirport, LLC, 275 Conn. 105, 881 A.2d 937,968 (2005) (affirming order suspending perdiem penalties during pendency of action).

The district court, to its credit, allowedthe Danners a nine-month grace period toabate the nuisance. See Palmer Coll. ofChiropractic, 412 N.W.2d at 622 (com-mending the district court for allowingtime to comply with its injunction). Werenew this nine-month period from thedate procedendo issues.

IV. Disposition.

For the above-stated reasons, we vacatethe decision of the court of appeals, vacate

6. Unlike the district court, we give some evi-dentiary weight to the determination by feder-

al aviation authorities that the grain leg is nota hazard to aviation.


the $ 200 daily penalty, and affirm thedistrict court judgment as modified to re-quire the Danners to abate the nuisancewithin nine months from the effective dateof our opinion.

DECISION OF COURT OF AP-PEALS VACATED; DISTRICT COURTJUDGMENT AFFIRMED AS MODI-FIED.

All justices concur except McDonald, J.,who takes no part.

,

STATE of Iowa, Appellee,

v.

Jane DOE, Appellant.

No. 18-1366

Supreme Court of Iowa.

Filed May 10, 2019

Background: Indigent defendant filedmotion to expungement criminal charges.The District Court, Polk County, BeckyGoettsch, J., denied expungement, and de-fendant appealed.

Holding: The Supreme Court, Waterman,J., held that expungement statute survivedrational basis review under both the Iowaand Federal Constitutions.

Affirmed.

Wiggins, J., dissented and filed opinion inwhich Cady, C.J., joined.

Appel, J., filed dissenting opinion.

1. Criminal Law O1139Appellate courts review constitutional

challenges to statutes de novo.

2. Constitutional Law O990, 1030Statutes are cloaked with a presump-

tion of constitutionality, and challengerbears a heavy burden because it must

prove the unconstitutionality beyond a rea-sonable doubt.

3. Constitutional Law O1031Party challenging constitutionality of

statute must refute every reasonable basisupon which the statute could be found tobe constitutional.

4. Constitutional Law O990If statute is capable of being con-

strued in more than one manner, one ofwhich is constitutional, courts must adoptthat construction.

5. Criminal Law O1226(3.1)There is no constitutional right to ex-

punge one’s criminal record, and instead,expungement is a matter of legislativegrace.

6. Constitutional Law O3041On a basic level, both state and feder-

al constitutions establish the general rulethat similarly situated citizens should betreated alike. U.S. Const. Amend. 14;Iowa Const. art. 1, § 6.

7. Constitutional Law O3006Courts generally consider the federal

and state equal protection clauses to beidentical in scope, import, and purpose.U.S. Const. Amend. 14; Iowa Const. art. 1,§ 6.

8. Constitutional Law O3053Unless a suspect class or a fundamen-

tal right is at issue, equal protection claimsare reviewed under the rational basis test.U.S. Const. Amend. 14; Iowa Const. art. 1,§ 6.

9. Constitutional Law O3826Since indigent defendant did not al-

lege that fundamental right or suspectclass was at issue, appellate court wouldapply the rational basis test when analyz-ing defendant’s claim that expungementstatute, providing that court may expunge

774 Colo. 464 PACIFIC REPORTER, 3d SERIES

charged. Moreover, under such a rule, most,if not all, constructive amendments wouldmorph from questions of due process andproper pleading into questions of prejudice,thereby effectively eliminating any distinc-tion between constructive amendments andsimple variances and overturning decades ofsettled case law in the process. With respect,I cannot abide such a result.

III. Conclusion

¶82 Today, the majority adopts a rule thateffectively allows prosecutors to convict de-fendants on charges different from those spe-cifically alleged, by name, in the charginginstruments. Although this rule is announcedin a case involving a habitual criminal count,I do not see why the rule would be limited tothis context. Instead, it would appear to ap-ply to any charged crime and, thus, wouldseem to allow the prosecution in any case toconvict a defendant of a charge other thanone expressly alleged in a charging instru-ment, as long as the defendant can be said tohave been given notice, either elsewhere inthe charging instrument or in discovery, ofwhat the prosecution ultimately proved. Be-cause I believe that such a rule would violatea defendant’s right to due process, I cannotsubscribe to it.

¶83 For these reasons, I would concludethat when, in connection with habitual crimi-nal counts, the prosecution charges a priorconviction of a specifically identified felonybut then proceeds to prove a different felonywithout timely amending the charging instru-ment, the prosecution has constructivelyamended that charging instrument and re-versal is required. Accordingly, I would re-verse the judgment of conviction on count sixand remand this case for further proceed-ings.

¶84 To this extent, I respectfully dissentfrom the majority’s opinion.

I am authorized to state that JUSTICEHOOD and JUSTICE HART join in thisconcurrence in part and dissent in part.

,

2020 CO 52

FOREST VIEW COMPANYand Raymond Decker,

Petitioners,

v.

TOWN OF MONUMENT, a StatutoryMunicipality of the State of

Colorado, Respondent.

Supreme Court Case No. 18SC793

Supreme Court of Colorado.

June 8, 2020

Background: Town filed petition in con-demnation with regard to parcel of land ithad purchased in subdivision for purposeof building water tower, seeking to extin-guish restrictive covenant that restricteduse of all land in subdivision to residentialpurposes. Property owners in same subdi-vision intervened, claiming they wereowned reasonable compensation for the de-crease in value to their lots and homes dueto lifting the restrictive covenant fromtown’s parcel. The District Court, El PasoCounty, Eric Bentley, J., found that prop-erty owners had a compensable propertyinterest. Town appealed. Court of Appeals,Jones, J., 2018 WL 4781388, reversed. Cer-tiorari was granted.

Holdings: The Supreme Court, Hart, J.,held that restrictive covenant was not acompensable property interest.

Affirmed.

Samour, J., filed opinion concurring in thejudgment only.

Gabriel, J., filed dissenting opinion.

1. Adjoining Landowners O8

Property owners adjacent to a govern-ment project that diminishes the value oftheir property are not entitled to compensa-tion from the government for that diminu-tion.

775Colo.FOREST VIEW CO. v. TOWN OF MONUMENTCite as 464 P.3d 774 (Colo. 2020)

2. Eminent Domain O261, 262(4)

While the Supreme Court defers to thetrial court’s findings of fact in condemnationproceedings, it reviews a trial court’s legalconclusions de novo.

3. Appeal and Error O3172, 3173

The Supreme Court reviews questions ofconstitutional and statutory interpretation denovo.

4. Courts O89

The doctrine of stare decisis requiresthat courts adhere to precedent in order topromote uniformity, certainty, and stabilityof the law.

5. Courts O89

Courts adhere to the doctrine of staredecisis absent a sound reason for rejecting it.

6. Eminent Domain O2.1

A taking occurs when a government en-tity clothed with the power of eminent do-main substantially deprives a property ownerof the use and enjoyment of that property.Colo. Const. art. 2, § 15.

7. Eminent Domain O69

For a landowner to be entitled to com-pensation under the Colorado Constitution,there must be either a taking or a damagingof private property without just compensa-tion. Colo. Const. art. 2, § 15.


A regulatory taking occurs when a gov-ernment entity does not physically occupythe land, but government action places animpermissible burden on certain landowners,effectively forcing some people alone to bearpublic burdens that, in fairness and justice,should be borne by the public as a whole.Colo. Const. art. 2, § 15.


A regulatory taking can only be estab-lished if the regulation imposes a very highlevel of interference with the property own-er’s use of the land; a mere decrease inproperty value is not enough. Colo. Const.art. 2, § 15.

10. Eminent Domain O2.1The damage clause of the takings clause

of the Colorado Constitution only applies tosituations in which the damage is caused bygovernment activity in areas adjacent to thelandowner’s land. Colo. Const. art. 2, § 15.

11. Covenants O84 Eminent Domain O95

Neighboring property owners are notentitled to compensation under the ColoradoConstitution when the government uses landit acquires in a manner that violates a re-strictive covenant. Colo. Const. art. 2, § 15.

12. Eminent Domain O85Restrictive covenant on properties in

subdivision, which limited construction to sin-gle-family residences, was not a compensableproperty interest in town’s eminent domainproceeding, in which town sought to extin-guish covenant on parcel of property it pur-chased in order to build water tower, andthus other property owners in subdivisionwere not entitled to just compensation due toviolation of covenant on town’s parcel. Colo.Const. art. 2, § 15.

Certiorari to the Colorado Court of Ap-peals, Court of Appeals Case No. 17CA1663

Attorneys for Petitioners: Hanes & BartelsLLC, Richard W. Hanes, Brenda L. Bartels,Colorado Springs, Colorado

Attorneys for Respondent: Murray DahlBeery & Renaud LLP, Joseph Rivera, Lake-wood, Colorado

Attorneys for Amicus Curiae Colorado Mu-nicipal League: Laurel A. Witt, David W.Broadwell,Denver, Colorado

En Banc

JUSTICE HART delivered the Opinion ofthe Court.

¶1 The Town of Monument (the ‘‘Town’’)purchased a piece of property on which itplanned to build a water tower. Neighboringproperty owners objected, arguing that theproperty was subject to a restrictive cove-nant limiting construction to single-familyresidences. According to the property own-

776 Colo. 464 PACIFIC REPORTER, 3d SERIES

ers, if the Town were to violate that covenantby building a water tower, the Town wouldbe taking the restrictive covenant from eachof the covenant-subject properties, and itwould therefore have to compensate theproperty owners for the diminution in valuecaused by that taking.

[1] ¶2 It is well settled that propertyowners adjacent to a government projectthat diminishes the value of their propertyare not entitled to compensation from thegovernment for that diminution. But does theexistence of a restrictive covenant change theanalysis? We answered this question overhalf a century ago in the negative, holding inSmith v. Clifton Sanitation District, 134Colo. 116, 300 P.2d 548 (1956), that whenstate or local government acquires propertysubject to a restrictive covenant and uses itfor purposes inconsistent with that covenant,‘‘no claim for damages arises by virtue ofsuch a covenant as in the instant case, infavor of the owners of other property’’ sub-ject to the covenant. Id. at 550.

¶3 Petitioners here ask us to confine Smithto its facts or to overrule it entirely. Wedecline to do either. Instead, we reaffirm thatwhere a government entity has obtainedproperty for public purposes, the governmentmay use that land for a purpose inconsistentwith a restrictive covenant without compen-sating all of the other landowners who aresubject to that restrictive covenant.

I. Facts and Procedural History

¶4 In September 2016, the Town of Monu-ment purchased a parcel of real property(‘‘Lot 6’’) from private landowners located inForest View Estates IV, a 39-lot subdivisionin El Paso County whose lots are subject to arestrictive covenant.

¶5 The Town intended to build a million-gallon municipal water storage tank on theproperty, but due to the residential-use limi-tation in place, the Town felt that it neededto extinguish the restrictive covenant encum-bering Lot 6 to proceed with construction.Specifically, the portion of the covenant atissue here stated that ‘‘[a]ll lots shall beknown and described as residential lots andshall be used only for private, custom, site-

built homes,’’ and ‘‘[n]o structure shall beerected TTT on any lot other than one single-family dwelling.’’ Believing that it could notconstruct the water tower without eitherbreaching the covenant or extinguishing theencumbrance, the Town sought to exerciseits eminent domain authority.

¶6 In January 2017, the Town filed a peti-tion in condemnation in the El Paso CountyDistrict Court pursuant to sections 31-15-707(1)(e), C.R.S. (2019), and 38-1-105(5),C.R.S. (2019), which together permit a gov-ernment entity that has purchased property,instead of acquiring it through its power ofeminent domain, to perfect

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Lessons from Luminaries of Land Law: Latest and Greatest … · 2020. 11. 30. · Lessons from Luminaries of Land Law: Latest and Greatest Decisions Sarah Adams-Schoen, Esq., Assistant