Iowa Sierrans:

Yesterday, the Iowa Supreme Court issued a decision overturning the
provisions of the 'Hog Lot Law' in IowaŠ

[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 3.

Lyle

http://www.judicial.state.ia.us/decisions/supreme/opinions/962276BO.asp

[Part 3]

[T]he flight of airplanes, which skim the surface but do not touch it, is
as much an appropriation of the use of the land as a more conventional
entry upon it. . . . The reason is that there [is] an intrusion so
immediate and direct as to subtract from the owner's full enjoyment of the
property and to limit his exploitation of it. . . . The superadjacent
airspace at this low altitude is so close to the land that continuous
invasions of it affect the use of the surface of the land itself. We think
the landowner, as an incident to his ownership, has a claim to it and
invasions of it are in the same category as invasions of the surface. . . .
Flights over private land are not a taking, unless they are so low and so
frequent as to be a direct and immediate interference with the enjoyment
and use of the land. We need not speculate on that phase of the present
case. For the findings of the Court of Claims plainly establish that there
was a diminution in value of the property and that the frequent, low-level
flights were the direct and immediate cause. We agree with the Court of
Claims that a servitude has been imposed upon the land.

Id. at 265-67, 66 S. Ct. at 1067-68, 90 L. Ed. at 1212-13; accord Griggs v.
Allegheny County, 369 U.S. 84, 89, 82 S. Ct. 531, 533-34, 7 L. Ed. 2d 585,
____ (1962); see also Portsmouth Harbor Land & Hotel Co. v. United States,
260 U.S. 327, 43 S. Ct. 135, 67 L. Ed. 287 (1922) (holding that firing, and
imminent threat of firing, of navy coastal guns over plaintiff's property
imposed a "servitude" upon the plaintiff's land and thus amounted to a
taking of some interest for public use); Dolezal v. City of Cedar Rapids,
209 N.W.2d 84, 87 (Iowa 1973) (recognizing a navigation easement as one
that permits free flights over land including those so low and so frequent
as to amount to a taking of property); 2A Philip Nichols, Eminent Domain §
6.06, at 6-92 (3d rev. ed. 1998) ("Physical invasions of property are not
limited to human or even vehicular entry. To the contrary, the majority of
cases involve the transmission of smoke, dust, earth, water, sewage or some
other agent onto the impacted property. Regardless of the agent, the result
of the invasion may be diminution in values of the property, partial or
complete (and permanent and temporary) appropriation, or complete
destruction.") [hereinafter Nichols].

In Fitzgerrald v. City of Iowa City, 492 N.W.2d 659, 663 (Iowa 1992), we
had occasion to consider a physical invasion claim involving overflying
aircraft. As in Causby, the plaintiffs in Fitzgerrald claimed the
overflying aircraft so adversely affected the use and enjoyment of their
property that a taking had resulted. We rejected the claim because the
plaintiffs had failed to prove a "measurable decrease in market value" due
to the overflying aircraft. Id. at 665. Nevertheless, we cited Causby for
the proposition that "[i]n some circumstances, overflying aircraft may
amount to a physical invasion." Id. We recognized that when interferences
with property from overflying aircraft result in a measurable decrease in
property market value, a taking has occurred. Id. at 663. In such cases, we
said "the right to recovery is not for the nuisance that must be endured
but for the loss of value that has resulted." Id. The loss-in-value measure
of damages is what we would ordinarily use in eminent domain cases. Id. As
mentioned, Causby used this same measure of damages.

The United States Supreme Court has allowed compensation for other kinds of
interferences short of physical taking or touching of land. See William B.
Stoebuck, Condemnation by Nuisance: The Airport Cases in Retrospect and
Prospect, 71 Dick. L. Rev. 207, 220-21 (1967) [hereinafter Stoebuck]. For
example, in United States v. Welch, the plaintiff had a passage easement
over a neighbor's property. 217 U.S. 333, 339, 30 S. Ct. 527, 527, 54 L.
Ed. 787, 789-90 (1910). The passage was the plaintiff's only access to a
county road. The government flooded the neighbor's property thereby cutting
off the plaintiff's only access to the road. The Court held the plaintiff
was entitled to compensation for the easement. Id. at 339, 30 S. Ct. at
527, 54 L. Ed. at 789-90. Because the benefitted land-plaintiff's
property-was not physically touched, this case is "a clear example of
condemnation without any physical taking." Stoebuck, at 221; see Nollan v.
California Coastal Comm'n, 483 U.S. 825, 831, 107 S. Ct. 3141, 3143 97 L.
Ed. 2d 677, 687 (1987) (holding that requiring property owner to give
easement of access across his property to obtain a building permit was a
physical taking of private property that required compensation).

In Pennsylvania Coal Co. v. Mahon, a state statute prohibited coal mining
if it were done in a manner to cause subsidence of any dwelling.
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322
(1922). The plaintiff had a contract to mine coal under a dwelling but the
statute prevented the plaintiff from doing so. Id. The Court held the
statute was an attempt to condemn property-the right to mine coal-without
compensation. Id. at 414, 43 S. Ct. at 159-60, 67 L. Ed. at 326. Mahon "is
a situation in which, by denying an owner the occupancy and use of his
property interest, the government takes the interest without any semblance
of physical intrusion." Stoebuck, at 221.

Richards v. Washington Terminal Co. presents a factual scenario closer to
the facts in this case. 233 U.S. 546, 34 S. Ct. 654, 58 L. Ed. 1088 (1914).
In Richards, the plaintiff owned residential property along the tracks of a
railroad that had the power of eminent domain. The property lay near the
mouth of a tunnel. The Court recognized that two kinds of the railroad's
activities had partially destroyed the plaintiff's interest in the
enjoyment of his property. The first kind involved smoke, dust, cinders,
and vibrations invading the plaintiff's property at all points at which the
property abutted the tracks. The second kind involved gases and smoke
emitted from engines in the tunnel that contaminated the air and invaded
the plaintiff's property. A fanning system inside the tunnel forced the
emission of the gases and smoke from the tunnel. As to the first activity,
the Court denied compensation because it was the kind of harm normally
incident to railroading operations. Id. at 554-55, 34 S. Ct. at 657-58, 58
L. Ed. at _____. As to the second activity-gases and smoke from the
tunnel-the Court concluded the plaintiff was entitled to compensation for
the "special and peculiar damage" resulting in diminution of the value of
the plaintiff's property. Id. at 557, 34 S. Ct. at 658, 58 L. Ed. at ____.

Richards is viewed as recognizing the taking of a property interest or
right "to be free from <special and peculiar' governmental interference
with enjoyment." Stoebuck, at 220. The taking involved "no kind of physical
taking or touching-none whatever." Id. Viewed in this light, Richards
"entirely does away with the requirement of a physical taking or touching."
Id.; see Nichols § 6.01, at 6-9 n.11 ("It is not necessary, in order to
render a statute obnoxious to the restraint of the Constitution, that it
must in terms or in effect authorize an actual physical taking of the
property or thing itself, so long as it affects its free use and enjoyment.
. . .").

(c) Liability of government for a taking by the operation of a
nuisance-producing governmental enterprise. With regard to private
nuisances,

[t]he power of the legislature to control and regulate nuisances is not
without restriction, and it must be exercised within constitutional
limitations. The power cannot be exercised arbitrarily, or oppressively, or
unreasonably. . . . It has been broadly stated, as an additional limitation
to the power of the legislature, that . . . the legislature may not
authorize the use of property in such a manner as unreasonably and
arbitrarily to infringe on the rights of others, as by the creation of a
nuisance. So it has been held that the legislature has no power to
authorize the maintenance of a nuisance injurious to private property
without due compensation.

66 C.J.S. Nuisances § 7, at 738 (1950).

Thus, the state cannot regulate property so as to insulate the users from
potential private nuisance claims without providing just compensation to
persons injured by the nuisance. The Supreme Court firmly established this
principle in Richards, holding that "while the legislature may legalize
what otherwise would be a public nuisance, it may not confer immunity from
action for a private nuisance of such a character as to amount in effect to
a taking." Richards, 233 U.S. at 553, 34 S. Ct. at 657, 58 L. Ed. at _____;
see also Pennsylvania R.R. v. Angel, 7A. 432, 433 (N.J. Eq. 1886) ("[A]n
act of the legislature cannot confer upon individuals or private
corporations, acting primarily for their own profit, although for public
benefit as well, any right to deprive persons of the ordinary enjoyment of
their property, except upon condition that just compensation be first made
to the owners.").

A number of state courts have decided takings cases on the basis that the
government entity operated a nuisance-producing enterprise. See,
e.g.,Thornburg v. Port of Portland, 376 P.2d 100, 106 (Or. 1962) ("[A]
taking occurs whenever government acts in such a way as substantially to
deprive an owner of the useful possession of that which he owns, either by
repeated trespasses or by repeated nontrespassory invasions called
<nuisance.'"). Significantly, a large number of these cases deal with smoke
and odors from sewage disposal plants and city dumps. One commentator
describes the cases this way:

Typically, a city sewage plant or dump in the vicinity of, but not
necessarily directly adjacent to, the plaintiff's land has wafted its
noxious smoke, odors, dust, or ashes, usually combinations of these, over
the plaintiff's land, with the obvious result of lessening its enjoyment.
No physical touching is present, nor do the courts try to equate the
municipal acts with touchings. [Several states] have allowed eminent domain
compensation in cases of this kind. . . . More significant than a court's
language is the result it announces, and in this respect all the decisions
stand for the proposition that nuisance-type activities are a taking. . . .

Stoebuck, at 226-27; see also Nichols § 6.07, at 6-112 to 6-113
("[G]eneration of offensive odors, gases, smoke . . . may constitute a
taking.").

The commentator ascribes a name to the theory of these cases: condemnation
by nuisance. Stoebuck, at 226. And the commentator has formulated the
theory this way: "governmental activity by an entity having the power of
eminent domain, which activity constitutes a nuisance according to the law
of torts, is a taking of property for public use, even though such activity
may be authorized by legislation." Id. at 208-09; see also City of
Georgetown v. Ammerman, 136 S.W. 202, 202 (Ky. 1911) (holding that odors
from city dump adjacent to plaintiff's property created a nuisance that was
a taking of the property); Ivester v. City of Winston-Salem, 1 S.E.2d 88,
88-90 (N.C. 1939) (holding as part of fundamental law of North Carolina
that odors from disposal plant next to plaintiff's property constituted a
nuisance and were a taking; North Carolina has no constitutional provision
for a "taking"); Brewster v. City of Forney, 223 S.W. 175, 178 (Tex. Ct.
App. 1920) (holding under Texas Constitution that odors from a nearby
sewage disposal plant resulted in a taking of plaintiff's property);
Nichols § 6.07, at 6-112 (stating under broad view of property-right to
use, exclude, and dispose-there need not be a physical taking of the
property or even dispossession; any substantial interference with the
elemental rights growing out of property ownership is considered a taking).

One court long ago anticipated the so-called condemnation by nuisance
theory this way:

Whether you flood the farmer's fields so that they cannot be cultivated, or
pollute the bleacher's stream so that his fabrics are stained, or fill
one's dwelling with smells and noise so that it cannot be occupied in
comfort, you equally take away the owner's property. In neither instance
has the owner any less of material things than he had before, but in each
case the utility of his property has been impaired by a direct invasion of
the bounds of his private dominion. This is the taking of his property in a
constitutional sense.

Pennsylvania R.R. v. Angel, 7A. at 433-34.

Our own definition of a taking is in accord with this concept:

[A] "taking" does not necessarily mean the appropriation of the fee. It may
be anything which substantially deprives one of the use and enjoyment of
his property or a portion thereof.

Phelps v. Board of Supervisors of County of Muscatine, 211 N.W.2d 274, 276
(Iowa 1973) (holding that construction of a bridge and causeway over river
in such a manner as to allegedly cause greater flooding on adjacent
property than previously was a "taking" within the meaning of the Iowa
Constitution).

As mentioned, the Board's approval of the applicants' application for an
agricultural area triggered the provisions of section 352.11(1)(a). The
approval gave the applicants immunity from nuisance suits. (Significantly,
section 352.2(6) allows an agricultural area to include activities such as
the creation of noise, odor, dust, or fumes.) This immunity resulted in the
Board's taking of easements in the neighbors' properties for the benefit of
the applicants. The easements entitle the applicants to do acts on their
property, which, were it not for the easement, would constitute a nuisance.
This amounts to a taking of private property for public use without the
payment of just compensation in violation of the Fifth Amendment to the
Federal Constitution. This also amounts to a taking of private property for
public use in violation of article I, section 18 of the Iowa Constitution.

In enacting section 352.11(1)(a), the legislature has exceeded its
authority. It has exceeded its authority by authorizing the use of property
in such a way as to infringe on the rights of others by allowing the
creation of a nuisance without the payment of just compensation. The
authorization is in violation of the Fifth Amendment to the Federal
Constitution and article I, section 18 of the Iowa Constitution.

The district court erred in concluding otherwise.

D. The remedy. In Agins v. Tiburon, the California Supreme Court held that
when legislation results in a taking, the landowner's remedy is to seek a
declaratory judgment action that the legislation is invalid because it
makes no provision for payment of just compensation. 598 P.2d 25, 28 (Cal.
1979); see 1 Nichols, Eminent Domain § 1.42(1), at 1-157 (3d rev. ed.
1997). The court, however, refused for policy reasons to allow the
landowner to sue in inverse condemnation for temporary takings damages.
Temporary takings damages represent the damages the landowner suffers up to
the time the court declares a statute invalid because it violates
constitutional provisions for payment of just compensation. This was the
holding in Agins under both the federal and state just compensation
clauses. Id.; see 26 Am. Jur. 2d Eminent Domain § 137 (1996) ("The
constitutional requirement of just compensation may not be evaded or
impaired by any form of legislation, and statutes which conflict with the
right to just compensation will generally be declared invalid.").

Later, the United States Supreme Court had occasion to review the
California rule in First English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, California, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed.
2d 250 (1987). The Court held that invalidation of the offending
legislation without compensation for the taking is a constitutionally
insufficient remedy for a taking under the Federal Just Compensation
Clause. In addition to invalidation, the landowner is entitled to takings
damages (temporary taking) that occurred before the ultimate invalidation
of the challenged legislation. Id. at 319-21, 107 S. Ct. at 2388-89, 96 L.
Ed. 2d at 266-68.

Here the neighbors seek no compensation. Rather, they seek only
invalidation of that portion of section 352.11(1)(a) that provides immunity
against nuisance suits. We therefore need not concern ourselves with
damages for any temporary taking. Accordingly, we hold unconstitutional and
invalidate that portion of section 352.11(1)(a) that provides for immunity
against nuisance suits. We reach this result under the Fifth Amendment to
the Federal Constitution and also under article I, section 18 of the Iowa
Constitution.

We reverse and remand for an order declaring that portion of Iowa Code
section 352.11(1)(a) that provides for immunity against nuisances
unconstitutional and without any force or effect.

We reach this holding with a full recognition of the deference we owe to
the General Assembly. That branch of government-with some participation by
the executive branch-holds the responsibility to sort through the practical
realities and, through the political process, reach consensus in highly
controversial public decisions. Those decisions demand our sincere respect.
The rule is therefore that "[a] challenger must show beyond a reasonable
doubt that the statute violates the constitution and must negate every
reasonable basis that might support the statute." Johnson v. Veterans'
Plaza Authority, 535 N.W.2d 131, 132 (Iowa 1995). The rule finding
constitutionality in close cases cannot control the present one, however,
because, with all respect, this is not a close case. When all the varnish
is removed, the challenged statutory scheme amounts to a commandeering of
valuable property rights without compensating the owners, and sacrificing
those rights for the economic advantage of a few. In short, it appropriates
valuable private property interests and awards them to strangers.

The same public that constituted the other branches of state government to
make political decisions with an eye on economic consequences expects the
court to resolve constitutional challenges on a purely legal basis. We
recognize that political and economic fallout from our holding will be
substantial. But we are convinced our responsibility is clear because the
challenged scheme is plainly-we think flagrantly-unconstitutional.

REVERSED AND REMANDED.

All justices concur except Larson and Andreasen, JJ., who take no part.
____________________________________________
Lyle Krewson
6403 Aurora Avenue #3
Des Moines, IA 50322-2862

[log in to unmask]

515/276-8947
515/276-6844 - FAX
____________________________________________