Bormann v

Bormann v. Board of Supervisors in & for Kossuth County, Iowa, 584 N.W.2d
309 (1998)

(UID:001007989)29 ELR 20235

(UID:001007989)No. 192/96-2276 IOWA SUPREME COURT

Counsel for Appellants
Michael E. Gabor
Buchanan, Buchanan, Bibler, Buchanan & Handsaker
111 N. Dodge St., Algona IA 50511
(515) 272-4180

Counsel for Appellees
David C. Skilling. County Attorney
County Attorney's Office
340 Polk County Bldg.
111 Court Ave., Des Moines IA 50309
(515) 286-3341

(UID:001007989)LAVORATO

(UID:001007989) Lavorato, J.:

(UID:001007989)Opinion

(UID:001007989)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

(UID:001007989)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:

(UID:001007989)

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.

(UID:001007989)

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."

(UID:001007989)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).

(UID:001007989)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.

(UID:001007989)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.

(UID:001007989)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

(UID:001007989)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.

(UID:001007989)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."

(UID:001007989)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.

(UID:001007989)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.

(UID:001007989)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."

(UID:001007989)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.

(UID:001007989)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

(UID:001007989)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.

(UID:001007989)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.

(UID:001007989)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.

(UID:001007989)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
Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L.
Ed. 2d 631 [8 ELR 20528] (1978). They argue that under that balancing test
the neighbors lose.

B. The Relevant Constitutional and Statutory Provisions

1. The Constitutional Provisions

(UID:001007989)The Fifth Amendment to the Federal Constitution pertinently
provides that "[n]o person shall be . . . deprived of life, liberty, or
property without due process of law; nor shall private property be taken
for public use, witho