Loren Danner and Pan Danner v. Carroll County Board of Adjustment ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 18–0509
Filed June 12, 2019
LOREN DANNER and PAN DANNER,
Appellants,
vs.
CARROLL COUNTY BOARD OF ADJUSTMENT,
Appellee.
Appeal from the Iowa District Court for Carroll County, Kurt J.
Stoebe, Judge.
Farmers appeal district court judgment upholding board of
adjustment’s denial of requested zoning variance. AFFIRMED.
Steven Hamilton of Hamilton Law Firm, P.C., Storm Lake, for
appellants.
John C. Werden, County Attorney, and Aaron W. Ahrendsen,
Assistant County Attorney, for appellee.
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PER CURIAM.
In 2013, Loren and Pan Danner built a 127-foot-tall grain leg on
their farmland in Carroll County. The grain leg sits under the flight path
to the Arthur N. Neu Municipal Airport. The grain leg violates the Carroll
County Airport Zoning Ordinance height restrictions by encroaching into
protected airspace by sixty feet. The Danners failed to seek a variance
before constructing the grain leg.
In July 2013, the Federal Aviation Administration (FAA) conducted
an aeronautical study and concluded that if the Danners painted the
grain leg and added lights to the top, the grain leg would not be a hazard
to aviation. The Danners complied with those measures. The Carroll
Airport Commission disagreed with the FAA’s no-hazard determination
and, in July 2015, filed an equitable action to have the grain leg declared
a nuisance and removed or modified.
While the nuisance action was pending, the Danners applied to the
Carroll County Board of Adjustment for a variance from the airport
zoning height restrictions. The Board denied the variance in March
2017. In April, the Danners filed a petition for judicial review of the
Board’s decision. In June, the district court ruled on the commission’s
nuisance claim and concluded “that the grain leg violated state and local
zoning ordinances and constituted a nuisance and an airport hazard
under Iowa Code sections 329.2 and 657.2(8) (2015).” Carroll Airport
Comm’n v. Danner, ___ N.W.2d ___, ___ (Iowa 2019). The court ordered
the Danners to remove or modify the grain leg. Id. The Danners
appealed the nuisance ruling. The nuisance ruling was on appeal during
the judicial review proceedings. In both cases, the Danners raised a
common defense—the FAA’s no-hazard determination preempted local
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regulations as a matter of law. The district court rejected that defense in
the nuisance action.
On February 23, 2018, the district court entered its ruling on the
judicial review petition and affirmed the Board’s denial of the variance,
again rejecting the preemption defense. The Danners appealed this
ruling on March 23. We retained their appeal pending the outcome of
the nuisance appeal in Carroll Airport Commission. The Danners
conceded that the outcome of the Carroll Airport Commission nuisance
appeal dictates the result in the judicial review appeal.
In September, the Iowa Court of Appeals affirmed the district
court’s ruling in the nuisance action. Id. at ___. The Danners petitioned
for further review, which we granted. Id. We concluded the FAA no-
hazard determination did not preempt state and local zoning laws and
affirmed the district court ruling. Id. at ___. We gave the Danners an
additional nine months from the date procedendo issued to remove or
modify the grain leg. Id.
As the Danners acknowledge, Carroll Airport Commission
adjudicated the same federal preemption issue they raised in this
proceeding. Our opinion rejecting the Danners’ preemption defense in
Carroll Airport Commission is fatal to the Danners’ appeal of the zoning
variance denial. For that reason, we affirm the decision of the district
court.
AFFIRMED.
This opinion shall not be published.