from the Iowa District Court for Pottawattamie County,
Kathleen A. Kilnoski, Judge.
Landing, LLC, appeals from an adverse judgment in this
inverse condemnation action.
C. Webering of Webering Law Offices, P.C., Glenwood, and
Ryann A. Glenn of Husch Blackwell LLP, Omaha, Nebraska, for
T. Glaser and Lyle W. Ditmars of Peters Law Firm, P.C.,
Council Bluffs, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
DANILSON, Chief Judge.
central question in this appeal is whether Hunter Landing,
LLC, is entitled to a new trial because of a faulty jury
instruction on inverse condemnation. Because we conclude the
instruction was a misstatement of the law, we reverse and
remand for a new trial.
Background Facts and Proceedings.
Landing, LLC (Hunter Landing) owns about twelve acres along
the Missouri River near the City of Council Bluffs (City).
Five houses, a duplex, and a mobile home existed on the
acreage pursuant to a conditional-use permit issued to the
prior owners, which allowed "weekend cabins and/or
2011, a flood inundated the area, including the Hunter
Landing property, resulting in a disaster proclamation by the
Governor and a proposed buyout and destruction of flooded
properties by the City (in large part with federal funds to
be obtained via a Hazard Mitigation Grant Program Agreement).
In September, the City's building inspector was able to
gain entry onto the Hunter Landing property to inspect
buildings for damage by the flood. The inspector declared six
residential structures on the Hunter Landing property as
"unsafe and unfit for human occupancy." Using a
damage estimator provided by the Federal Emergency Management
Agency, the inspector determined all but one residential
structure was more than fifty percent damaged and,
consequently, subject to demolition. After a review, one
additional structure was found not to require demolition.
December, the City notified Gail Hunter, as representative of
Please be advised that the City of Council Bluffs has
performed site damage assessments to the property located at
attached legal description, which was inundated by flood
waters during the 2011 flood event. Structure(s) which you
own in the area have been identified as having substantially
damaged or destroyed structures and are classified as an
imminent threat to the public health. These structures are
hereby ordered condemned and to be demolished in accordance
with the City Code.
Please be advised the City of Council Bluffs is giving you
sixty (60) days from receipt of this notice to remove all
residential structures from the property (see attached
photo). If the residential structures are not removed in the
time specified, the City will remove them from your property
and bill you . . . .
City demolished the condemned structures. During that
process, subsurface equipment and structures were damaged or
destroyed. Electrical lines were removed by the power
appraisals were prepared for the City in anticipation of
offering to buy the Hunter Landing property. The average of
the two appraisals found the preflood market value was $485,
000. However, because the property was subject to four,
100-year leases and all the lessees would not voluntarily
terminate their leases, the buyout did not occur.
the 2011 flood, the City amended its floodway ordinance. With
respect to future construction, the amended ordinance stated:
If any nonconforming use or structure is destroyed by any
means, including flood, it shall not be reconstructed if the
cost is more than fifty (50) percent of the market value of
the structure before the damage occurred, unless it is
reconstructed in ...