Iowa Sierrans: Yesterday, the Iowa Supreme Court issued a decision overturning the provisions of the 'Hog Lot Law' in Iowa which provided confinement producers with protection from 'Nuisance' lawsuits. This is the first nuisance protection law to be overturned in the country, I believe. Below is the webpage bookmark for the supreme court decision, and following below that is the text of the decision. A major upset for the industry! [NOTE: The decision is too long to conform to the rules of this LISTSERVer, so I had to split it into three parts, labeled 'Nuisance Protection Overturned - Pt 1', 'Nuisance Protection Overturned - Pt 2' and 'Nuisance Protection Overturned - Pt 3'. You should have received all three.] This is part 1. Lyle http://www.judicial.state.ia.us/decisions/supreme/opinions/962276BO.asp HelveticaSupreme Court Opinion IN THE SUPREME COURT OF IOWA No. 192 / 96-2276 Filed September 23, 1998 CLARENCE BORMANN and CAROLINE BORMANN, Husband and Wife; LEONARD McGUIRE and CECELIA McGUIRE, Husband and Wife, Appellants, vs. BOARD OF SUPERVISORS IN AND FOR KOSSUTH COUNTY, IOWA; and JOE RAHM, AL DUDDING, LAUREL FANTZ, JAMES BLACK, and DONALD McGREGOR, In Their Capacities as Members of the Board of Supervisors, Appellees, GERALD GIRRES, JOAN GIRRES, MIKE GIRRES, NORMA JEAN THUL, JERALD THILGES, SHIRLEY THILGES, THELMA THILGES, EDWIN THILGES, RALPH REDING, LORETTA REDING, BERNARD THILGES, JACOB THILGES, JOHN GOECKE, and PATRICIA GOECKE, Intervenors-Appellees. Appeal from the Iowa District Court for Kossuth County, Patrick M. Carr, Judge. Appeal from district court ruling upholding against constitutional challenges statutory provision granting immunity from nuisance suits. REVERSED AND REMANDED. Michael E. Gabor of Buchanan, Buchanan, Bibler, Buchanan & Handsaker, Algona, for appellants. David C. Skilling, County Attorney, for appellees. Eldon L. McAfee of Beving, Swanson & Forrest, Des Moines, for intervenor-appellees. Christina L. Gault of Iowa Farm Bureau Federation, West Des Moines, for amicus curiae. Considered en banc. LAVORATO, Justice. In this appeal we are asked to decide whether a statutory immunity from nuisance suits results in a taking of private property for public use without just compensation in violation of federal and Iowa constitutional provisions. We think it does. We therefore reverse a district court ruling holding otherwise and remand. In doing so, we need not reach a second constitutional challenge. I. Facts and Proceedings. The facts are not in dispute. In September 1994, Gerald and Joan Girres applied to the Kossuth County Board of Supervisors for establishment of an "agricultural area" that would include land they owned as well as property owned by Mike Girres, Norma Jean Thul, Gerald Thilges, Shirley Thilges, Thelma Thilges, Edwin Thilges, Ralph Reding, Loretta Reding, Bernard Thilges, Jacob Thilges, John Goecke, and Patricia Goecke (applicants). See Iowa Code § 352.6 (1993). The real property involved consisted of 960 acres. On November 10, 1994, the Board denied the application, making the following findings and conclusions: a. The Board finds that the policy in favor of agricultural land preservation is not furthered by an Agricultural Area designation in this case as there are no present or foreseeable nonagricultural development pressures in the area for which the designation is requested. b. The Board also finds that the Agricultural Area designation and the nuisance protections provided therein will have a direct and permanent impact on the existing and long-held private property rights of the adjacent property owners. c. Thus, the Board concludes that the policy in favor of agricultural land preservation as set forth in Iowa Code chapter 352 is outweighed by the policy in favor of the preservation of private property rights. d. Accordingly, the Board finds that the adoption of the Agricultural Area designation in this case is inconsistent with the purposes of Iowa Code chapter 352. Two months later, in January 1995, the applicants tried again with more success. The Board approved the agricultural area designation by a 3-2 vote-one of which was based on the "flip [of] a nickel." In granting the designation, the Board this time found that the application to create the agricultural area designation "complies with Iowa Code section 352.6 and that the adoption of the proposed agricultural area is consistent with the purposes of Chapter 352." In April 1995, several neighbors of the new agricultural area filed a writ of certiorari and declaratory judgment action in district court. The defendants were the Board and individual board members Joe Rahm, Al Dudding, Laurel Fantz, James Black, and Donald McGregor (Board). The plaintiffs, Clarence and Caroline Bormann and Leonard and Cecelia McGuire (neighbors), challenged the Board's action in a number of respects. The neighbors alleged the Board's action violated their constitutionally inalienable right to protect property under the Iowa Constitution, deprived them of property without due process or just compensation under both the federal and Iowa Constitutions, denied them due process under the federal and Iowa Constitutions, ran afoul of res judicata principles, and was "arbitrary and capricious." The applicants intervened. Based on stipulated facts, memoranda and oral argument, the district court determined that the Board's action was "arbitrary and capricious." Apparently, the determination was based on one Board member voting on the basis of a flipped coin. This was the only ground on which the court ruled for the neighbors. The court rejected all of their other arguments. Later, the neighbors filed an Iowa Rule of Civil Procedure 179(b) motion asking the court to clarify its ruling. Meanwhile, the Board corrected the "arbitrary and capricious" infirmity to its November 1995 vote. The neighbors then sought, and received, a certification of appeal from this court. II. Scope of Review. The neighbors sued at law and titled their petition as one for writ of certiorari and one for declaratory judgment. In the petition for writ of certiorari, the neighbors asked that a writ of certiorari issue because the Board's decision was "in excess of" the Board's "jurisdiction" and was "contrary to law" and "illegal" because the decision "violates the Fifth Amendment to the United States Constitution, and article I, section 18 of the Iowa Constitution" in that the decision "effects a taking of the [neighbors'] private property for a use that is not public." The petition asked that the decision be annulled and decreed to be void. In the petition for declaratory relief, the neighbors sought a declaration that the Board's decision violates the "Fifth Amendment to the United States Constitution, the Fourteenth Amendment to the United States Constitution, and article I, section 18 of the Iowa Constitution." Iowa Rule of Civil Procedure 306 authorizes the district court to issue a writ of certiorari "where an inferior tribunal, board or officer exercising judicial functions, is alleged to have exceeded its, or his proper jurisdiction or otherwise acted illegally." (Emphasis added.) Our scope of review is limited to sustaining a board's decision or annulling it in whole or in part. Grant v. Fritz, 201 N.W.2d 188, 189 (Iowa 1972). In addition, the fact that the plaintiff has another adequate remedy does not preclude granting the writ. Iowa R. Civ. P. 308. Thus, here, a petition for a writ of certiorari is appropriate to test the legality of the Board's decision. Our scope of review is limited to sustaining the Board's decision or annulling it in whole or in part. In addition, the fact that the neighbors may have another adequate remedy, like declaratory judgment, does not preclude our granting relief under Rule 306. Iowa Rule of Civil Procedure 261 (declaratory judgment) authorizes "[c]ourts of record within their respective jurisdiction [to] declare rights, status, and other legal relations whether or not further relief is or could be claimed." The purpose of a declaratory judgment is to determine rights in advance. Miehls v. City of Independence, 249 Iowa 1022, 1030, 88 N.W.2d 50, 55 (1958). The essential difference between such an action and the usual action is that no actual wrong need have been committed or loss incurred to sustain declaratory judgment relief. Id. at 1031, 88 N.W.2d at 55. But there must be no uncertainty that the loss will occur or that the right asserted will be invaded. Id. As with a writ of certiorari, the fact that the plaintiff has another adequate remedy does not preclude declaratory judgment relief where it is appropriate. Iowa R. Civ. P. 261. We think the facts here are sufficient for us to proceed under either remedy. In addition, because the facts are not in dispute, we need not concern ourselves with whether we employ a correction-of-errors-at-law review or a de novo review. Our only question is a legal one. III. The Takings Challenge. A. The parties' contentions. The Board's approval of the agricultural area here triggered the provisions of Iowa Code section 352.11(1)(a). More specifically, the approval gave the applicants immunity from nuisance suits. The neighbors contend that the approval with the attendant nuisance immunity results in a taking of private property without the payment of just compensation in violation of federal and state constitutional provisions. The neighbors concede, as they must, that their challenge to section 352.11(1)(a) is a facial one because the neighbors have presented neither allegations nor proof of nuisance. However, the neighbors strenuously argue that in a facial challenge context courts have developed certain bright line tests that spare them from this heavy burden. Specifically, the neighbors say, these bright line tests provide that a governmental action resulting in the condemnation or the imposition of certain specific property interests constitutes automatic or per se takings. Here, the neighbors argue further, that the section 352.11(1)(a) immunity provision gives the applicants the right to create or maintain a nuisance over the neighbors' property, in effect creating an easement in favor of the applicants. The creation of the easement, the neighbors conclude, results in an automatic or per se taking under a claim of regulatory taking. The Board and applicants respond that a per se taking occurs only when there has been a permanent physical invasion of the property or the owner has been denied all economically beneficial or productive use of the property. They insist the record reflects neither has occurred. Thus, they contend, the court must apply a balancing test enunciated in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). They argue that under that balancing test the neighbors lose. Geneva____________________________________________ Lyle Krewson 6403 Aurora Avenue #3 Des Moines, IA 50322-2862 [log in to unmask] 515/276-8947 515/276-6844 - FAX ____________________________________________