The CARROLL AIRPORT COMMISSION, Appellee, v. Loren W. DANNER and Pan Danner, Appellants. , 927 N.W.2d 635 ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 17–1458
Filed May 10, 2019
THE CARROLL AIRPORT COMMISSION,
Appellee,
vs.
LOREN W. DANNER and PAN DANNER,
Appellants.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Carroll County, William C.
Ostlund, Judge.
A farmer seeks further review of a court of appeals decision
declining to give preemptive effect to a no-hazard determination by the
Federal Aviation Administration. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT AFFIRMED AS MODIFIED.
Steven D. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for
appellants.
Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu & Badding,
P.C., Carroll, for appellee.
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WATERMAN, Justice.
In this appeal, we must determine the legal effect of a “no hazard”
letter issued by the Federal Aviation Administration (FAA) to a farmer
who built a twelve-story grain leg (bucket elevator) near an airport. The
structure intrudes sixty feet into airspace restricted for aviation.
Construction was well underway when a member of the local airport
commission cried foul. The airport commission informed the farmer he
needed a variance and refused to grant one, without waiting for input
from federal officials. Shortly thereafter, the FAA investigated and
granted a no-hazard determination, approving the structure on the
condition the farmer paint it and place blinking red lights on top, which
he did. The FAA also adjusted the flight path. This did not satisfy the
local commissioners, who two years later filed this action in equity to
force the farmer to remove or modify the structure. The farmer raised an
affirmative defense that the federal no-hazard determination preempted
the local regulations.
The district court, sitting in equity, rejected the preemption
defense and issued an injunction requiring the farmer to remove or alter
the grain leg at his expense and imposed a daily penalty after a nine-
month grace period to abate the nuisance. The farmer appealed, and we
transferred the case to the court of appeals, which affirmed the rejection
of his preemption defense. We granted the farmer’s application for
further review.
On our de novo review, we determine that the Federal Aviation Act
allows for local zoning regulation, and the no-hazard letter did not
preempt the local airport zoning regulations as a matter of law. We
affirm the district court’s finding the structure constitutes a threat to
aviation requiring abatement. But we conclude that the $200 daily
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penalty should be vacated, and the nine-month period to modify or
remove the structure shall begin anew when procedendo issues. We
affirm the district court judgment as modified.
I. Background Facts and Proceedings.
Loren and Pan Danner, husband and wife, live on a farm they own
in Carroll County, Iowa. Loren has been farming this land since 1968.
Loren formerly raised livestock but has exclusively grown row crops on
the land since 2000. The Danner farm sits under the flight path to the
Arthur N. Neu Municipal Airport, a facility managed by the Carroll
Airport Commission (the Commission). Local zoning ordinances mandate
a protected zone around the airport that extends 10,000 feet horizontally
from the end of Runways 13 and 31 into an arc 150 feet above the
airport. The Danners’ farm sits within this zone.
In 2009, after a particularly good harvest, Loren realized he needed
to find a way to more efficiently dry and store harvested grain. He
considered multiple options, but ultimately decided to construct a grain
leg (also known as a bucket elevator) with attached storage bins. Loren
and two farm neighbors built five grain-storage bins of varying sizes on
the Danners’ farmland. The five bins stand in a semicircle around the
grain leg. The grain leg is a 127-foot-tall structure with separate metal
tubes sloping down from its top to each storage bin.
The grain leg stands within 10,000 feet horizontally from the end of
Runway 31. The top of the structure is 1413.43 feet above mean sea
level. The protected airspace above the airport is 1354 feet above mean
sea level. The structure reaches a height of 127 feet off the ground. The
parties agree the grain leg intrudes within the airport’s protected
airspace by approximately sixty feet.
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In January 2013, before beginning construction of the grain leg,
Loren went to Carl Wilburn, the county zoning administrator, to obtain a
building permit. Wilburn issued the building permit and granted the
Danners an agricultural exemption from the county zoning ordinances.
The agricultural exemption, however, did not exempt the Danners from
the airport zoning ordinances. The building permit application states,
“All farm buildings or structures are subject to the Airport Zoning
Ordinances which regulate[] height and emissions in and around the
airport air space as depicted on the attached diagram[.]” The diagram
attached to the permit showed the airport’s protected airspace. Despite
this warning on the building permit application, neither the Danners nor
Wilburn realized that the agricultural exemption did not exempt the
grain leg from the airport zoning regulations. For that reason, the
Commission was never notified of the Danners’ application for a building
permit, and the Danners failed to request a variance from the airport
zoning ordinance. Construction of the grain leg began in April and was
completed in August.
Meanwhile, in June, Commissioner Greg Siemann noticed the
grain leg construction and became concerned. The next day, he
contacted Wilburn and Greg Schreck, the city zoning commissioner.
Wilburn informed Siemann that he had issued a building permit to the
Danners with an agricultural exemption and acknowledged he was
unaware of the local airport zoning restrictions.
The Commission notified the Danners that the grain leg required a
variance from the airport zoning regulations and informed the Danners it
would not consent to the violation of the regulations or grant a variance.
The Commission asked the FAA to perform an aeronautical study of the
grain leg and its impact on aviation safety.
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In July, after performing the aeronautical study, the FAA issued a
“DETERMINATION OF NO HAZARD TO AIR NAVIGATION” letter, stating
in part, “This aeronautical study revealed that the structure does exceed
obstruction standards but would not be a hazard to air navigation” if the
Danners met certain conditions. The FAA instructed the Danners to
paint the structure and add red lights to the top of it. The no-hazard
letter warned the Danners,
This determination concerns the effect of this structure on
the safe and efficient use of navigable airspace by aircraft
and does not relieve the sponsor of compliance
responsibilities relating to any law, ordinance, or regulation
of any Federal, State, or local government body.
The Commission did not seek judicial review of the no-hazard
determination as permitted under federal law. See 14 C.F.R. §§ 77.37,
.39, .41 (2013). The Danners complied with the FAA’s instructions,
adding lights and painting the grain leg. The FAA issued a “Notice to
Airmen” (NOTAM) that raised the minimum descent levels for the airport
by 100 feet, requiring pilots to approach the airport at a higher altitude.
Two years later, in July 2015, the Commission filed this action on
the district court’s equity docket alleging the grain leg violated certain
building ordinances, city and county zoning ordinances, and airport
commission regulations, and constituted a nuisance and hazard to air
traffic. The Commission sought equitable relief—an injunction requiring
the Danners to modify or remove the grain leg. The Danners filed an
answer and jury demand. The Danners raised an affirmative defense of
federal preemption. The district court struck the jury demand because
the case was filed in equity. The case proceeded to a bench trial.
At trial, the following witnesses testified for the Commission:
C. Peter Crawford, the engineer for the airport; John McLaughlin, a
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meteorologist, pilot, and flight instructor; Donald Mensen, fixed base
operator of the airport; Kevin Wittrock, a commissioner and a pilot; and
Siemann, an attorney, pilot, and commissioner. Loren Danner testified
on his own behalf. No pilot or aviation expert testified for the Danners.
Crawford testified about the engineering survey of the grain leg in
relation to Runway 31 of the airport. The survey showed that the grain
leg was 7718 feet from the end of Runway 31 and within the airport’s
protected zone.
The other witnesses gave opinion testimony that the grain leg
constituted a hazard to aviation. The pilots testified about their
experiences flying over the grain leg when landing at the airport and
expressed their concerns for student pilots or pilots distracted while
landing. The Commission also presented testimony that the grain leg
would jeopardize the airport’s ability to secure federal grant money. The
record indicates, however, that the airport received two federal grants,
one for $284,466 and another for $263,200, after the Danners installed
the grain leg.
Loren testified that it cost approximately $274,928 to construct the
grain leg, $32,942 to install a concrete drive-over pad, and $8000 for an
electrical contractor. Loren testified that if the height of the grain leg was
reduced, he could no longer rely on gravity to move the grain from the
distributor to the storage bins. Instead, he would need to install
conveyors. Loren estimated that the cost to tear down the grain leg and
rebuild it with conveyors to each of the storage bins in compliance with
the zoning regulations would be approximately $450,000. These cost
figures went unchallenged.
In June 2017, the district court found that the grain leg violated
state and local zoning ordinances and constituted a nuisance and an
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airport hazard under Iowa Code sections 329.2 and 657.2(8) (2015). The
court found that the grain leg did not fall within the agricultural
exemption to certain zoning laws. The court rejected the Danners’
affirmative defense that the no-hazard letter preempted state and local
zoning laws, stating,
While the FAA regulations certainly do apply, the local
county regulations can also be in effect. The local
regulations take a more stringent stance on what a hazard is
and how it could affect the air space. If the FAA regulations
contained all airport and safety regulations there would be
no need for the State to designate zoning powers to the
Commission. The Court finds that these regulations in fact
work together and the FAA regulations and letter sent do not
preempt the local regulations.
The district court gave no evidentiary weight to the FAA’s aeronautical
study and no-hazard determination. The district court ordered the
Danners to either remove the grain leg or modify its height to comply
with the local regulations regarding the airport’s protected airspace. The
Danners filed a motion for judgment notwithstanding the verdict and a
motion for new trial in light of our ruling in State v. Martinez, 896 N.W.2d
737 (Iowa 2017) (addressing preemptive effect of federal immigration
laws). The district court denied the Danners’ motions.
The Commission moved pursuant to Iowa Rule of Civil Procedure
1.904(2) to enlarge the order to set a date certain for abatement and to
impose a daily penalty after that date. On September 5, the district
court, after conferring with counsel, set May 1, 2018, as the date by
which the Danners had to remove the grain leg or lower it by sixty feet,
with a $200 per diem penalty every day thereafter accruing against the
Danners jointly and severally.
The Danners appealed. We transferred the case to the court of
appeals. The court of appeals affirmed, concluding that the doctrines of
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express, implied, and conflict preemption did not apply to the FAA no-
hazard determination. The Danners filed an application for further
review, which we granted.
II. Standard of Review.
The parties disagree as to the standard of review. The Commission
contends the case was tried as a law action because the trial court ruled
on objections. The Danners contend the case was tried in equity.
“Generally, our review of a decision by the district court following a
bench trial depends upon the manner in which the case was tried to the
court.” Collins Tr. v. Allamakee Cty. Bd. of Supervisors, 599 N.W.2d 460,
463 (Iowa 1999). If the case is tried at law, our review is for correction of
errors at law. Id. “Our review of cases tried in equity is de novo.” City of
Eagle Grove v. Cahalan Invs., LLC, 904 N.W.2d 552, 558 (Iowa 2017).
We conclude this case was tried in equity. The Commission filed
the action in equity and sought only equitable relief—a permanent
injunction. Notably, the district court struck the Danners’ jury demand
based on its ruling that this is an action in equity. Accordingly, our
review is de novo. Id. “Nevertheless, we give weight to the factual
findings of the district court, especially with respect to determinations of
witness credibility.” Id.Preemption, however, is a question of federal law. See Martinez,
896 N.W.2d at 746–47; Freeman v. Grain Processing Corp., 848 N.W.2d
58, 75 (Iowa 2014) (reviewing principles of federal preemption). “We
review the district court’s legal conclusions for correction of errors at
law.” Walnut Creek Townhome Ass’n v. Depositors Ins., 913 N.W.2d 80,
87 (Iowa 2018).
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III. Analysis.
We must decide whether the FAA’s no-hazard determination for the
Danners’ grain leg preempts state and local zoning ordinances limiting
the height of structures in or near flight paths. The Danners rely on
Martinez, contending our recent acknowledgment of the supremacy and
sweeping preemptive effect of federal immigration law in that case
supports preemption under federal aviation law here. In Martinez, we
held federal immigration law preempted the state criminal prosecution of
an undocumented worker for using false identity papers to gain
employment. 896 N.W.2d at 757. 1 Federal immigration and aviation law
alike can supersede conflicting local regulations. At first glance, the
Danners have more to argue in favor of preemption than Martha Aracely
Martinez, who lacked a specific finding in her favor by federal authorities.
By contrast, the FAA specifically investigated the Danners’ grain leg and
issued a no-hazard determination (subject to conditions, which they
satisfied). Federal aviation law, however, allows room for local zoning
regulation. In our view, Martinez is not controlling here, and we will
focus our analysis on aviation law and court decisions addressing the
legal effect of FAA no-hazard determinations.
We first address the Federal Aviation Act and the federal
regulations promulgated to implement the Act’s safety standards. We
next address Iowa state and local laws regulating structures near
airports. We conclude federal law and the FAA no-hazard determination
allow for local regulation of tall structures in flight paths, and the district
court correctly rejected the Danner’s preemption defense.
1The United States Supreme Court granted certiorari in another case addressing
the preemptive effect of immigration law on state criminal prosecutions for identity
theft. State v. Garcia, 401 P.3d 588, 599–600 (Kan. 2017), cert. granted in part, 139
S. Ct. 1317 (2019).
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A. Federal Law.
1. The Federal Aviation Act. The Federal Aviation Act of 1958,2
codified as amended at 49 U.S.C. Subtit. VII, was created “for the
purpose of centralizing in a single authority . . . the power to frame rules
for the safe and efficient use of the nation’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 United States Government has exclusive sovereignty of
airspace of the United States.” 49 U.S.C. § 40103(a)(1) (2017).
The Administrator of the Federal Aviation Administration
shall develop plans and policy for the use of the navigable
airspace and assign by regulation or order the use of the
airspace necessary to ensure the safety of aircraft and the
efficient use of airspace.
Id. § 40103(b)(1).
The Administrator “shall promote safe flight of civil aircraft in air
commerce by prescribing . . . regulations and minimum standards for
other practices, methods, and procedure the Administrator finds
necessary for safety in air commerce and national security.” Id.
§ 44701(a)(5). These safety standards apply to airports such as the
Arthur N. Neu Municipal Airport. Id. § 44701(b). The Administrator is
directed to carry out the safety regulation “chapter in a way that best
tends to reduce or eliminate the possibility or recurrence of accidents in
air transportation.” Id. § 44701(c).
As one aspect of airport and aircraft safety, the Act regulates the
construction of structures that interfere with airspace. This includes
prescribing notice requirements for individuals who seek to build or
expand a structure. Id. § 44718(a). The Act provides for aeronautical
2Both the Federal Aviation Administration and the Federal Aviation Act are
referred to as the FAA. In this opinion, we refer to the Federal Aviation Administration
as the FAA and the Federal Aviation Act as the “Aviation Act” or “the Act.”
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studies to determine the impact of the proposed construction. Id.
§ 44718(b). During an aeronautical study, the Secretary of
Transportation must
(A) consider factors relevant to the efficient and
effective use of the navigable airspace, including—
(i) the impact on arrival, departure, and en route
procedures for aircraft operating under visual flight
rules;
(ii) the impact on arrival, departure, and en route
procedures for aircraft operating under instrument
flight rules;
(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 resulting from the proposed
construction or alteration of a structure when combined
with the impact of other existing or proposed
structures; and
(vi) other factors relevant to the efficient and effective
use of navigable airspace[.]
Id. § 44718(b)(1)(A)(i)–(vi). To implement the Act’s requirements,
Congress empowered the FAA to promulgate regulations. Id. § 40103(b).
2. The federal regulations. Title 14, part 77 of the Code of Federal
Regulations sets forth notice requirements for proposed construction,
guidance on determining whether proposed construction or an existing
structure is an obstruction to air navigation, the aeronautical study and
hazard/no-hazard determination process, and the procedure for petitions
for review of such determinations. 14 C.F.R. § 77.1 (2018).
The regulations state that obstructions are presumed to be airport
hazards unless an aeronautical study determines otherwise. Id.§ 77.15(b). The FAA uses the safety regulations, as well as FAA policy
and guidance materials, to determine whether an obstruction is an
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airport hazard. Id.; see also id. § 77.25(c) (noting that obstruction
standards may be supplemented by other guidance).
The regulations provide certain height safety standards. The
surfaces used to determine height safety requirements include “an initial
approach segment, a departure area, and a circling approach area,” as
well as “[t]he surface of a takeoff and landing area” of an airport. Id.
§ 77.17(a). The regulations also establish certain “imaginary surfaces” in
relation to the runways of an airport, which create imaginary arcs within
which an object may be an airport hazard. Id. § 77.19. The size of the
imaginary surface depends upon the type of runway and the types of
approaches a pilot can make on the runway. Id. The arcs are all 150
feet above the airport elevation, and the radius is either 5000 or 10,000
feet depending on the type of runway. Id. § 77.19(a).
If the FAA conducts an aeronautical study to determine whether an
object is an airport hazard, it will evaluate the following in addition to the
factors set out in 42 U.S.C. § 44718(b)(1),
(4) Airport traffic capacity of existing public use
airports and public use airport development plans received
before the issuance of the final determination;
(5) Minimum obstacle clearance altitudes, minimum
instrument flight rules altitudes, approved or planned
instrument approach procedures, and departure procedures;
(6) The potential effect on ATC radar, direction finders,
ATC tower line-of-sight visibility, and physical or
electromagnetic effects on air navigation, communication
facilities, and other surveillance systems;
(7) The aeronautical effects resulting from the
cumulative impact of a proposed construction or alteration of
a structure when combined with the effects of other existing
or proposed structures.
14 C.F.R. § 77.29(a); see also id. § 77.25(b).
After an aeronautical study, the FAA makes an initial hazard/no-
hazard determination. Id. § 77.31. Pursuant to the regulations,
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[a] Determination of No Hazard to Air Navigation will be
issued when the aeronautical study concludes that the
proposed construction or alteration will exceed an
obstruction standard but would not have a substantial
aeronautical impact to air navigation. A Determination of No
Hazard to Air Navigation may include the following:
(1) Conditional provisions of a determination.
(2) Limitations necessary to minimize potential
problems, such as the use of temporary construction
equipment.
(3) Supplemental notice requirements, when required.
(4) Marking and lighting recommendations, as
appropriate.
Id. § 77.31(d). The no-hazard determination will expire eighteen months
after its effective date. Id. § 77.33(b).
The regulations provide a procedure to petition the FAA to
reconsider or revise the determination, provided that construction has
not begun and the petition is submitted at least fifteen days before the
determination expires. Id. § 77.35(a). This determination will become
final unless the FAA grants discretionary review. Id. § 77.37, .39
(discussing the procedure for discretionary review). An individual
seeking discretionary review must do so within thirty days of the date of
the determination. Id. § 77.39(a).
The no-hazard determination is reviewable as a final agency
disposition. Aircraft Owners & Pilots Ass’n v. FAA, 600 F.2d 965, 966 n.2
(D.C. Cir. 1979). FAA no-hazard determinations have been successfully
challenged under federal judicial review. See, e.g., Town of Barnstable v.
FAA, 659 F.3d 28, 35–36 (D.C. Cir. 2011) (vacating FAA no-hazard
determination for off-shore wind farm); Clark County v. FAA, 522 F.3d
437, 443 (D.C. Cir. 2008) (vacating FAA no-hazard determination for
wind farm near Las Vegas airport).
14
In Aircraft Owners & Pilots Ass’n, the United States Court of
Appeals for the District of Columbia discussed the limited legal effect of a
hazard/no-hazard determination:
Once issued, a hazard/no-hazard determination has
no enforceable legal effect. The FAA is not empowered to
prohibit or limit proposed construction it deems dangerous
to air navigation. Nevertheless, the ruling has substantial
practical impact. The Federal Communications Commission,
for example, considers the FAA’s classification in granting
permits for the construction of broadcast towers. The ruling
may also affect the ability of a sponsor proposing
construction to acquire insurance or to secure financing.
Primarily, however, the determination promotes air safety
through “moral suasion” by encouraging the voluntary
cooperation of sponsors of potentially hazardous structures.
600 F.2d at 966–67 (footnotes omitted) (citation omitted).
“Nonetheless, a hazard determination can hinder the project
sponsor in acquiring insurance, securing financing or obtaining approval
from state or local authorities.” BFI Waste Sys. of N. Am., Inc. v. FAA,
293 F.3d 527, 530 (D.C. Cir. 2002); see also White Indus., Inc. v. FAA,
692 F.2d 532, 533 n.1 (8th Cir. 1982) (“Although the FAA determination
has no enforceable legal effect, it does have substantial practical impact
as the Federal Communications Commission considers the determination
in making its decisions with respect to proposed construction.”).
B. Iowa Law. The State of Iowa and Carroll County each have
enactments addressing airport hazards. Any city or county with an
airport may establish an airport commission to manage and control the
airport. Iowa Code § 330.17(1). These commissions have “all of the
powers in relation to airports granted to cities and counties under state
law, except powers to sell the airport.” Id. § 330.21. These powers
include the authority to make decisions with regard to zoning to prevent
airport hazards. Id. §§ 329.2–.3. “In the event of any conflict between
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any airport zoning regulations adopted or established under this chapter
and any other regulations applicable to the same area, . . . the more
stringent limitation or requirement shall govern and prevail.” Id. § 329.8.
The Iowa Code defines an airport hazard as
any structure or tree or use of land which would exceed the
federal obstruction standards as contained in 14 C.F.R.
§ 77.21, 77.23 and 77.25 as revised March 4, 1972, and
which obstruct the air space required for the flight of aircraft
and landing or take-off at an airport or is otherwise
hazardous to such landing or taking off of aircraft.
Id. § 329.1(2).
With regard to airport hazards, section 329.2 states,
It is hereby found that an airport hazard endangers
the lives and property of users of the airport and of
occupants of land and other persons in its vicinity, and also,
if of the obstruction type, in effect reduces the size of the
area available for the landing, taking off and maneuvering of
aircraft, thus tending to destroy or impair the utility of the
airport and the public investment therein. Accordingly, it is
hereby declared:
1. That the creation or establishment of an airport
hazard is a public nuisance and an injury to the community
served by the airport in question.
2. That it is necessary in the interest of public health,
safety, and general welfare that the creation or
establishment of airport hazards be prevented.
3. That this should be accomplished, to the extent
legally possible, by proper exercise of the police power.
4. That the prevention of the creation or
establishment of airport hazards, and the elimination,
removal, alteration, mitigation, or marking and lighting of
existing airport hazards are public purposes for which
municipalities may raise and expend public funds, as an
incident to the operation of airports, to acquire land or
property interests therein.
Id.
If an airport hazard exists, the Commission “may maintain actions
in equity to restrain and abate as nuisances the creation or
16
establishment of airport hazards appertaining to said airport, in violation
of any zoning regulations adopted or established pursuant to the
provisions of this chapter.” Id. § 329.5; see also id. § 657.2(8) (“Any
object or structure hereafter erected within one thousand feet of the
limits of any municipal or regularly established airport or landing place,
which may endanger or obstruct aerial navigation, including take-off and
landing, unless such object or structure constitutes a proper use or
enjoyment of the land on which the same is located.”).
The Code provides a procedure for applying for a variance to zoning
laws. Id. § 329.11. A variance
shall be allowed where a literal application or enforcement of
the regulations would result in practical difficulty or
unnecessary hardship and the relief granted would not be
contrary to the public interest, but would do substantial
justice and be in accordance with the spirit of the
regulations and this chapter; provided, however, that any
such variance may be allowed subject to any reasonable
conditions that the board of adjustment may deem necessary
to effectuate the purposes of this chapter.
Id.
The Carroll County ordinances state with regard to placement of
towers and antennas, “All tower height allowances outlined in the
preceding sections are subject to approval from the municipal Airport
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 a height greater than 30 feet shall be reviewed by
the Carroll Airport Commission.”). An applicant for a building permit
must file an application with the county zoning administrator, including
“[d]ocumentation that the proposed tower site and height have been
approved by the appropriate Airport Commission.” Id. § 14.15.040.03.5
(emphasis omitted).
17
The county board of adjustment, in compliance with Iowa Code
section 355.12, is permitted to hear cases regarding “[v]ariances to
zoning district requirements where there are unusual conditions or
circumstances that cause a hardship when the provisions of zoning are
strictly applied.” Id. § 14.18.010.07.3.
The board shall reject any such application or appeal that is
not filed within (10) days of the Zoning Administrator’s
decision. Also, the secretary shall reject any such
application or appeal unless the same are made on
prescribed forms properly filled out, with all required data
attached.
Id. § 14.18.010.08.4.
The airport zoning regulations define an airport hazard as
any structure or tree or use of land that would exceed the
Federal obstruction standards as contained in 14 CFR
77.21, 77.23, and 77.25, and that obstructs the airspace
required for the flight of aircraft and landing or takeoff at an
airport or is otherwise hazardous to such landing or taking
off of aircraft.
Id. § 171.01(3).
The county airport zoning regulations establish “imaginary
surfaces” as required by the federal regulations, creating a protected
zone encompassing,
1. Horizontal Zone. The land lying under a horizontal
plane 150 feet above the established elevations, the
perimeter of which is constructed by swinging arcs of 10,000
feet radii from the center of each end of the primary surface
of Runways 13 and 31, and 5,000 feet for Runways 3 and
21, and connecting the adjacent arcs by lines tangent to
those arcs. No structure shall exceed 150 feet above the
established airport elevation in the horizontal zone, as
depicted on the Arthur N. Neu Municipal Airport Height
Zoning Map.
Id. § 171.02(1).
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The regulations also state,
5. Increase in Elevation of Structures. No structure
shall be erected in the County that raises the published
minimum descent altitude for an instrument approach to
any runway, nor shall any structure be erected that causes
the minimum obstruction clearance altitude or minimum en
route altitude to be increased on any Federal airway in the
County.
Id. § 171.02(5).
A landowner may request a variance from these regulations by
applying to the board of adjustment and submitting a copy of the
application to the Commission. Id. § 171.05. The Commission is
permitted to give its opinion on the aeronautical effects of a possible
variance within fifteen days of receiving its copy of the application. Id.
The airport regulations state, similar to the Iowa Code, that with
regard to conflicting regulations the more stringent requirement prevails:
Where there exists a conflict between any of the regulations
or limitations prescribed in this chapter and any other
regulations applicable to the same area, whether the conflict
is with respect to height of structures, the use of land, or any
other matter, the more stringent limitation or requirement
shall govern and prevail.
Id. § 171.10.
C. Application of Preemption Principles. The Danners argue
that the FAA no-hazard determination for their grain leg preempts a
contrary determination by the Commission. The Danners contend that
allowing local airports to determine what constitutes an airport hazard
would impermissibly alter the federal standards. The district court and
court of appeals disagreed and determined that federal law allows for
overlapping local regulation of hazards. We agree that local regulation of
tall structures near flight paths is recognized under federal aviation law.
19
Under the Supremacy Clause of the United States Constitution,
“the Laws of the United States . . . shall be the supreme Law of the Land
. . . , any Thing in the . . . Laws of any State to the Contrary
notwithstanding.” U.S. Const. art. VI, cl. 2.
Consideration of issues arising under the Supremacy Clause
“start[s] with the assumption that the historic police powers
of the States [are] not to be superseded by . . . Federal Act
unless that [is] the clear and manifest purpose of Congress.”
Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 366 (3d Cir. 1999)
(alterations in original) (quoting Cipollone v. Liggett Grp., Inc., 505 U.S.
504, 516, 112 S. Ct. 2608, 2617 (1992)).
[T]he Supremacy Clause has been interpreted to mean that
even if a state statute is enacted in the execution of
acknowledged state powers, state laws that “interfere with,
or are contrary to the laws of Congress” must yield to federal
law.
Martinez, 896 N.W.2d at 746 (quoting Gibbons v. Ogden, 22 U.S. 1, 211,
9 Wheat. 1, 82 (1824)). The Supremacy Clause is implemented through
the preemption doctrine. Id.We have recognized “[t]here is a presumption against preemption
which counsels a narrow construction of preemption provisions.” Huck
v. Wyeth, Inc., 850 N.W.2d 353, 363 (Iowa 2014) (alteration in original)
(quoting Ackerman v. Am. Cyanamid Co., 586 N.W.2d 208, 213 (Iowa
1998)); see also Freeman, 848 N.W.2d at 83 (discussing “cooperative
federalism” under which the federal law sets a floor, not a ceiling, and
states may impose more stringent protections). That is what we have
here under aviation laws regulating the height of structures in flight
paths, as we explain below.
There are two broad categories of preemption, express and implied.
Martinez, 896 N.W.2d at 746. Within implied preemption there are two
20
subcategories, conflict preemption and field preemption. Id. We will
address express preemption, conflict preemption, and field preemption in
turn.
1. Express preemption. “Express preemption occurs when the
federal statutory text clearly provides that congressional authority is
exclusive.” Id. Express preemption requires examining the statutory
language to determine the legislature’s intent. Id.
Although the Aviation Act states that “[t]he United States
Government has exclusive sovereignty of airspace of the United States,”
49 U.S.C. § 40103(a)(1), there is no clear statutory text that Congress
intended to make the FAA’s authority under the Aviation Act exclusive as
to restrictions on structures near airports. We agree with the court of
appeals that the Aviation Act does not expressly preempt the state
statutes and local ordinances at issue here.
2. Conflict preemption. “Conflict preemption occurs when a state
law conflicts with a federal provision.” Martinez, 896 N.W.2d at 747.
“Conflict preemption occurs when ‘compliance with both federal and
state regulation is a physical impossibility.’ ” Id. (quoting Fla. Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43, 83 S. Ct. 1210,
1217 (1963)). “Conflict preemption also is imminent whenever two
separate remedies are brought to bear on the same activity.” Id.“Conflict preemption also occurs when a state law is an obstacle to the
accomplishment of a federal purpose.” Id. “What is a sufficient obstacle
is a matter of judgment, to be informed by examining the federal statute
as a whole and identifying its purpose and intended effects.” Id. (quoting
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373, 120 S. Ct.
2288, 2294 (2000)).
21
The district court concluded that both the federal and local
regulations could be in effect and regulate airport hazards without
conflict. The district court concluded the Aviation Act did not preempt
the local regulations stating,
The local regulations take a more stringent stance on what a
hazard is and how it could affect the air space. If the FAA
regulations contained all airport and safety regulations there
would be no need for the State to designate zoning powers to
the Commission.
The court of appeals determined the doctrine of conflict preemption did
not apply because compliance with both statutes was not impossible.
Because the state regulations impose a greater burden, it is possible to
comply with both the state and federal regulations. This is supported,
the court determined, by the statement in the no-hazard determination
that “[t]his determination . . . does not relieve [the Danners] of
compliance responsibilities relating to any law, ordinance, or regulation
by any Federal, State, or local government body.”
It is possible to comply with the federal, state, and local laws
without conflict. We agree with the district court and court of appeals
that the doctrine of conflict preemption does not apply in this case.
3. Field preemption. “Field preemption arises when Congress has
enacted a comprehensive scheme.” Id. at 746. In cases of field
preemption,
congressional intent to preempt can be inferred from a
framework of regulation “so pervasive . . . that Congress left
no room for the States to supplement it” or where there is a
“federal interest . . . so dominant that the federal system will
be assumed to preclude enforcement of state laws on the
same subject.”
Id. at 746–47 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230,
67 S. Ct. 1146, 1152 (1947)).
22
“[C]oncluding that Congress intended to occupy the field of air
safety does not end our task.” Goodspeed Airport LLC v. E. Haddam
Inland Wetlands & Watercourses Comm’n, 634 F.3d 206, 210 (2d Cir.
2011). “The key question is thus at what point the state regulation
sufficiently interferes with federal regulation that it should be deemed
pre-empted[.]” Id. at 211 (alteration in original) (quoting Gade v. Nat’l
Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 107, 112 S. Ct. 2374, 2387
(1992)).
A variety of state and local laws have been preempted by the
Aviation Act, including tort law, 3 state regulation of air travel, 4 and noise
regulations. 5 However, in Goodspeed Airport, the environmental
3See, e.g., Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir. 2007) (holding
that the Aviation Act preempted state law duty-to-warn claims for passengers who
developed deep vein thrombosis on domestic flights); Abdullah, 181 F.3d at 371–72
(holding that air safety standards as they relate to a standard of care for state
negligence claims were preempted); In re Sept. 11 Litig., 811 F. Supp. 2d 883, 891
(S.D.N.Y. 2011) (finding that federal law preempted state law with regard to the
standard of care applicable to the defendant’s conduct in allowing terrorists to hijack
and crash a plane, noting that if state law controlled “air carriers then would be
subjected to an untenable mixture of 50 different state legal regimes, and not to a
uniform federal legal regime”); In re Air Crash Near Clarence Ctr., N.Y., on Feb. 12, 2009,
798 F. Supp. 2d 481, 486 (W.D.N.Y. 2011) (finding that the FAA preempted state law
negligence standard of care). But see Sikkelee v. Precision Airmotive Corp., 822 F.3d
680, 683 (3d Cir. 2016) (holding that the FAA did not preempt design defect claims).
4See, e.g., U.S. Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1329 (10th Cir. 2010)
(“Based on the pervasive federal regulations concerning flight attendant and crew
member training and the aviation safety concerns involved when regulating an airline’s
alcoholic beverage service, we conclude that [the state liquor law’s] application to an
airline implicates the field of airline safety that Congress intended federal law to
regulate exclusively. Thus, New Mexico’s regulatory efforts are impliedly preempted.”);
Air Transp. Ass’n of Am., Inc. v. Cuomo, 520 F.3d 218, 219 (2d Cir. 2008) (per curiam)
(finding that federal law preempted a state law establishing a passenger’s bill of rights);
French v. Pan Am Express, Inc., 869 F.2d 1, 1 (1st Cir. 1989) (holding that pilot
regulation statute was preempted).
5See, e.g., City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 638–40,
93 S. Ct. 1854, 1862–63 (1973) (concluding that the Aviation Act preempted a city
ordinance attempting to control noise by prohibiting aircraft from taking off between 11
p.m. and 7 a.m.); Burbank-Glendale-Pasadena Airport Auth. v. City of Los Angeles, 979
F.2d 1338, 1341 (9th Cir. 1992) (finding that local regulations regarding airport noise
were preempted).
23
regulation at issue—requiring a permit to cut down trees on wetlands—
was not preempted because it did not sufficiently interfere with the
federal regulations. Id. at 212. The court declined to determine
whether the FAA Regulations would preempt the state and
local laws, regulations, and actions challenged here if the
trees were declared hazards and their removal ordered by the
FAA. Significantly, in this case the federal government
renounced any intention—indeed, questioned whether it had
the authority—to declare the trees hazards and/or order
their removal.
Id. at 208 n.1.
Courts have found ample room for state and local regulation. See,
e.g., City of Cleveland v. City of Brook Park, 893 F. Supp. 742, 751 (N.D.
Ohio 1995) (“While it is certainly true that runway placement will have
some tangential effect on flight operations, the question of whether and
where to construct a runway does not substantially affect the use of
airspace. . . . The Federal Aviation Act does not occupy the field of land
use regulations in such a way so as to preempt Brook Park’s
ordinances.”).
The court of appeals concluded the doctrine of field preemption did
not apply because the Act only sets minimum standards and implies that
another body may lawfully impose more stringent standards. The court
also noted that the FAA did not intend for the no-hazard determination
to supersede state and local law because it has no enforceable legal
effect. We agree for the reasons explained below.
4. Cases addressing the preemptive effect of FAA no-hazard
determinations for tall structures in flight paths. We now turn to the
several cases specifically adjudicating whether FAA no-hazard
determinations preempt local regulation of the height of structures in
flight paths.
24
The Commission relies on Commonwealth v. Rogers, an appeal by a
business owner found guilty of violating a state statute by erecting a
ninety-five-foot-tall sign that encroached on an airport’s approach area,
without seeking prior approval from the Pennsylvania Department of
Transportation. 634 A.2d 245, 246–47 (Pa. Super. Ct. 1993). The
Rogers court, citing to Aircraft Owners & Pilots Ass’n, concluded that
because FAA hazard/no-hazard determinations had no enforceable legal
effect, the ability to prohibit or limit proposed construction because of
the hazard it poses to air navigation “has been left to the states.” Id. at
250. The Rogers court concluded, “Thus, although Congress has
concerned itself with the hazards posed by tall structures, it has left
untouched the legal enforcement of standards, which are peculiarly
adapted to local regulation. Therefore, the states may legislate
concerning such matters.” Id. The court noted that “[b]y enacting [the
state statute], the legislature empowered [the department of
transportation] to enforce mandatory compliance with FAA regulations
which are designed to identify potential hazards to air navigation.” Id. at
253. “Unlike the determination made by the FAA, [the department of
transportation’s] determination is enforceable, rather than advisory.” Id.“In order to ensure that landowners will comply with the requirement of
prior approval by [the department of transportation], the legislature has
mandated that the failure to seek approval is a summary offense.” Id.The court concluded this was a proper exercise of police power, and “[i]n
this manner, [the department of transportation] can ensure that the
safety regulations promulgated by the FAA are applied uniformly
throughout the Commonwealth to establish a minimum threshold of
safety, irrespective of different standards which may be adopted at the
local level.” Id. Rogers is distinguishable, however, because the
25
defendant had not actually received an FAA no-hazard determination as
to the tall sign at issue.
In La Salle National Bank v. Cook County, a developer sought to
construct eight-story apartment buildings near a naval air base. 340
N.E.2d 79, 81–82 (Ill. App. Ct. 1975). The developer relied on “a letter it
received from the FAA indicating the proposed construction did not
violate the height restrictions imposed by FAA on buildings in military
airport approach zones.” Id. at 83. County zoning officials nevertheless
denied a required zoning reclassification based on local zoning height
restrictions and pilot testimony that the buildings would pose a hazard.
Id. at 81, 83–84. The appellate court, concluding that the local
standards did not impede aviation, affirmed the rejection of the
developer’s federal preemption claim. Id. at 87–88. Similarly, here, the
Commission’s pilot witnesses testified the grain leg posed a hazard to
aviation.
The Commission also relies on Aeronautics Commission of Indiana
v. State ex rel. Emmis Broadcasting Corp., 440 N.E.2d 700 (Ind. Ct. App.
1982). There, business owners sought to purchase the assets of a radio
station but wanted to move the broadcast tower. Id. at 701–02. The
prospective purchaser was required to coordinate with the Federal
Communications Commission, “vested with authority to regulate the
proposed construction and maintenance of broadcast towers[,]” as well
as the FAA, vested with the authority to determine “whether a proposed
antenna presents a hazard to air navigation.” Id. at 702 & n.2. The FAA
performed an aeronautical study and determined the antenna and tower
would not be a hazard to air navigation. Id. at 702. However, the
aeronautics commission advised the purchaser that it must also obtain a
permit pursuant to the Indiana High Structures Safety Act before
26
constructing the tower. Id. The aeronautics commission denied the
company’s application for a permit. Id. The Indiana Court of Appeals,
relying on Aircraft Owners & Pilots Ass’n, concluded that state and local
regulations regarding tall structures were not preempted by the Aviation
Act. Id. at 704–06. The court determined that
Congress has concerned itself with the potential hazards for
air safety created by tall structures, but it has purposely left
untouched a distinctive part of the subject—the legal
enforcement of standards—peculiarly adapted to local
regulation; thus the state may legislate concerning such
local matters which Congress could have covered but did
not.
Id. at 706.
On the other hand, a federal district court expressly declined to
follow Aeronautics Commission of Indiana and, instead, held that the
FAA’s no-hazard determination as to placement of a broadcast tower
trumped a contrary local regulatory decision. Big Stone Broad., Inc. v.
Lindbloom, 161 F. Supp. 2d 1009, 1021 (D.S.D. 2001). There, a radio
broadcaster sued members of the South Dakota Aeronautics Commission
(SDAC) for injunctive and declaratory relief, challenging the SDAC’s
denial of a permit to place an 875-foot broadcast tower near a state road
used as a flight path for small aircraft. Id. at 1011–13. The FAA had
issued a no-hazard determination for the tower in that location. Id. The
Big Stone court noted the Indiana Court of Appeals “rooted its rationale”
in the FAA’s lack of power to compel a state regulator to allow
construction of a tower the state deemed hazardous to aviation
“notwithstanding a[n] FAA determination to the contrary.” Id. at 1020–
21. The Big Stone court “craft[ed] a more limited remedy” by enjoining
the SDAC
from acting to prohibit the construction of proposed
broadcast towers when the FAA, in adherence to its statutory
27
and regulatory provisions, determines that the proposed
tower poses no hazard to air traffic and safety. In essence,
then, the court enjoins [the SDAC] from vetoing a[n] FAA
determination of “no hazard” in connection with radio
broadcast towers.
Id. at 1021. Big Stone has not been followed by other courts. It is also
distinguishable. Here, we are reviewing a judgment on a bench trial
determining the grain leg is hazardous to aviation and violates local
zoning requirements, rather than a district court ruling accommodating
competing federal and state agency decisions. And, unlike Big Stone, the
Commission was not really “vetoing” the FAA’s no-hazard determination
because the no-hazard letter itself admonished the Danners that they
remained subject to local zoning requirements.
In Davidson County Broadcasting, Inc. v. Rowan County Board of
Commissioners, the North Carolina Court of Appeals considered whether
a county was preempted from regulating air safety. 649 S.E.2d 904, 907
(N.C. Ct. App. 2007). In that case, a broadcasting company applied for a
conditional use permit to construct a 1350-foot radio tower near a
private airport. Id. at 907–08. After a public hearing, the county board
of commissioners denied the permit, finding that the tower would
penetrate air traffic patterns at the private airport and would constitute
“hazardous safety conditions” in violation of the county zoning code. Id.The board reached this decision despite a no-hazard determination from
the FAA. Id. However, the board noted, “[T]he FAA’s review included
only flight operations to and from public airports. Miller Airpark is a
private airport to which the FAA regulations do not apply.” Id. at 908.
The court found no conflict between the Act and the county zoning law.
Id. at 911. The court based this conclusion on the language in the no-
hazard letter stating that the no-hazard letter “does not relieve the
sponsor of compliance responsibilities relating to any law, ordinance, or
28
regulation of any Federal, State, or local government body.” Id. The
same language is found in the FAA’s no-hazard letter for the Danners’
grain leg.
On balance, we decline to hold the FAA no-hazard determination
preempted enforcement of local zoning requirements. We reiterate that
“[t]here is a presumption 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 no
enforceable legal effect” and “[t]he FAA is not empowered to prohibit or
limit proposed construction it deems dangerous to air navigation.”
Aircraft Owners & Pilots Ass’n, 600 F.2d at 966–67. Accordingly, that
role must fall to state and local government, indicating Congress left
room for “cooperative federalism.” See Freeman, 848 N.W.2d at 83. In
our view, the better reasoned authorities discussed above hold state and
local regulators can impose stricter height restrictions on structures in
flight paths notwithstanding an FAA no-hazard determination. Finally,
we rely on the very language of this specific no-hazard determination,
which expressly warned the Danners that they still must comply with
state and local laws.
D. Whether the District Court’s Injunctive Relief Should Be
Affirmed. On June 16, 2017, the district court sustained the
Commission’s petition for abatement, finding the grain leg was an airport
hazard constituting a nuisance. The district court ordered the grain leg
to be removed or reconstructed at a lower height. The Danners filed a
motion for judgment notwithstanding the verdict or for new trial, arguing
federal preemption based on our holding in Martinez. The Commission
filed a motion to set a date by which the grain leg had to be removed and
29
to impose a per diem penalty for each day after the deadline the grain leg
continued to stand.
The court rejected the Danners’ preemption defense based on
Martinez and denied their motion for judgment notwithstanding the
verdict. The court set a May 1, 2018 removal or modification deadline
and, relying on Iowa Code section 329.14, imposed a $200 per day
penalty commencing May 1, 2018, for each day the nuisance continued
to stand unabated. That penalty has continued to accrue during this
appeal at an annual rate of $73,000. On our de novo review, we affirm
the nuisance determination and remedy except that we vacate the
per diem penalty as inequitable.
“Permanent injunctive relief is an extraordinary remedy that is
granted only when there is no other way to avoid irreparable harm to the
plaintiff.” Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180, 185
(Iowa 2005).
A plaintiff seeking permanent injunctive relief must establish
“(1) an invasion or threatened invasion of a right; (2) that
substantial injury or damages will result unless the request
for an injunction is granted; and (3) that there is no
adequate legal remedy available.”
City of Okoboji v. Parks, 830 N.W.2d 300, 309 (Iowa 2013) (quoting Cmty.
State Bank, Nat’l Ass’n v. Cmty. State Bank, 758 N.W.2d 520, 528 (Iowa
2008)).
The court must undertake “a comparative appraisal of all of the
factors in the case,” and consider the following:
(a) the character of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of
other remedies,
(c) plaintiff’s delay in bringing suit,
(d) plaintiff’s misconduct,
30
(e) the relative hardship likely to result to defendant if
injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or
judgment.
Helmkamp v. Clark Ready Mix Co., 214 N.W.2d 126, 130 (Iowa 1974)
(quoting Restatement (Second) of Torts, Tentative Draft No. 19, § 936(1)).
“When determining whether an injunction is the proper remedy,
the court must weigh the relative hardship to each party.” In re
Langholz, 887 N.W.2d 770, 779 (Iowa 2016). Courts must structure
permanent injunctions so that it will provide relief to the plaintiff without
“interfer[ing] with the legitimate and proper actions of the person against
whom it is granted.” Id. at 779–80.
“In equity cases, especially when considering the credibility of
witnesses, [we] give[] weight to the fact findings of the district court, but
[we are] not bound by them.” Iowa R. App. P. 6.904(3)(g). The
Commission presented credible opinion testimony from experienced
pilots familiar with the airport. The district court credited their
testimony that the grain leg poses a hazard to aviation there. So do we.
The other runway would be risky to use in a strong crosswind common
to that location. The structure is not easy to see in certain weather
conditions. The higher approach requires a steeper descent poorly suited
to some types of aircraft. A distracted pilot might fly into the twelve-story
elevator, with fatal consequences. We affirm the district court’s finding
that the grain leg constitutes a nuisance and hazard to aviation. It is the
$200 daily penalty accruing during this appeal that gives us pause.
Iowa Code section 329.14 provides, “Each violation of [the airport
zoning] chapter or of any regulations, order, or rules promulgated
pursuant to this chapter, shall constitute a simple misdemeanor and
31
each day a violation continues to exist shall constitute a separate
offense.” The statutory fine for a simple misdemeanor is “at least sixty-
five dollars but not to exceed six hundred twenty-five dollars.” Id.§ 903.1(a).
Although the district court gave the Danners nine months to abate
the nuisance before commencing the $200 daily penalty, the Danners’
appeal was pending during that grace period. The district court did not
find the Danners in contempt or in willful violation of the court’s
abatement order. The Commission’s case against the Danners was no
slam dunk. It is undisputed that the Danners fully complied with the
FAA directive to paint the structure and place red lights on top. The FAA
adjusted the flight path by 100 vertical feet to accommodate the grain
leg. The FAA determined that these measures alleviated the danger to
aviation posed by the structure. 6 The Commission failed to appeal the
FAA no-hazard determination. Further, despite the trial testimony that
the grain leg poses a hazard, the Commission waited nearly two years to
file this action. The Danners presented uncontroverted testimony that
the cost to remove the grain leg and rebuild it elsewhere is roughly
$450,000 and that it would cost several hundred thousand dollars to
modify the grain leg by reducing its height. We reject as speculative the
testimony that the grain leg will impede efforts to obtain future grants
from the same federal government that deemed the structure
nonhazardous, especially since grants of $284,466 and $263,200 were
awarded after the grain leg was built. We factor these considerations
into our equitable calibration of the postappeal deadline to bring down
the grain leg.
6Unlike the district court, we give some evidentiary weight to the determination
by federal aviation authorities that the grain leg is not a hazard to aviation.
32
The Danners presented a question of first impression in this
jurisdiction as to whether the FAA’s aeronautical study and no-hazard
determination preempted the Commission’s contrary determination that
the grain leg is a hazard to aviation. While the district court, court of
appeals, and now our court declined to give the FAA letter preemptive
effect, this legal issue was not finally resolved until our opinion today.
The caselaw in other jurisdictions is conflicting, and the Danners’
position had some support. See, e.g., Big Stone, 161 F. Supp. 2d at
1021. We find the Danners pursued this appeal to conclusion based on
their good faith and objectively reasonable belief in their legal position.
Although we now affirm the district court’s nuisance finding, this
was a fair fight on the merits. 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. The
Danners exercised their right to appeal, which has now run its course.
We affirm the injunction and hold abatement is required, but conclude 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
abate the nuisance. We elect to vacate the daily $200 penalty accruing
during this appeal. Cf. Iowa Code § 329.4(9) (suspending enforcement
penalties during appeal from extraterritorial airport hazard
determination); Palmer Coll. of Chiropractic v. Iowa Dist. Ct., 412 N.W.2d
617, 622 (Iowa 1987) (holding in contempt proceeding that failure to obey
injunction constituted a single continuous violation and setting aside
daily penalty); see also Ventres v. Goodspeed Airport, LLC, 881 A.2d 937,
968 (Conn. 2005) (affirming order suspending per diem penalties during
pendency of action).
33
The district court, to its credit, allowed the Danners a nine-month
grace period to abate the nuisance. See Palmer Coll. of Chiropractic, 412
N.W.2d at 622 (commending the district court for allowing time to comply
with its injunction). We renew this nine-month period from the date
procedendo issues.
IV. Disposition.
For the above-stated reasons, we vacate the decision of the court of
appeals, vacate the $200 daily penalty, and affirm the district court
judgment as modified to require the Danners to abate the nuisance
within nine months from the effective date of our opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED AS MODIFIED.
All justices concur except McDonald, J., who takes no part.