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The Carroll Airport Commission v. Danner

Court of Appeals of Iowa

September 12, 2018

THE CARROLL AIRPORT COMMISSION (OPERATING THE ARTHUR N. NEU MUNICIPAL AIRPORT), Plaintiff-Appellee,
v.
LOREN W. DANNER and PAN DANNER, Defendants-Appellants.

          Appeal from the Iowa District Court for Carroll County, William C. Ostlund, Judge.

         The appellant landowners appeal from the district court ruling granting the local airport commission's petition for abatement of a nuisance, requiring the landowners to cease operation of and remove an improvement on their land.

          Steven D. Hamilton of Hamilton Law Firm, PC, Storm Lake, for appellants.

          Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu & Badding, PC, Carroll, for appellee.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ.

          POTTERFIELD, Presiding Judge.

         The defendants, Loren and Pan Danner, appeal from the district court ruling granting the Carroll Airport Commission's petition for abatement of a nuisance. The court determined the grain leg built by the Danners on their property, near the Arthur E. Neu Airport, was a nuisance, as it violated local and state zoning ordinances and statutes. The court ordered the Danners to "abate said nuisance by either removing the grain leg structure or modifying the height of the grain leg structure to be in compliance with the regulations and law concerning the Airport's protect[ed] airspace." On appeal, the Danners contend the "no hazard" letter they obtained from the Federal Aviation Administration (FAA) in July 2013 preempted the district court's enforcement of state law.

         I. Standard of Review.

         The parties dispute the scope of our review. The Danners maintain the petition was filed in equity and, as such, our review is de novo. See Iowa R. App. P. 6.907. The commission asserts our review is for correction of errors at law because while the petition was filed in equity, the case was tried at law since the trial court ruled on objections as they were made at trial. Ruling on objections at the time they are made in the course of trial has often been a determinative factor in deciding the case should be reviewed at law even though the case could have or perhaps even should have been tried in equity. See Passehl Estate v. Passehl, 712 N.W.2d 408, 414 (Iowa 2006). However, while it is a determinative factor, it is not dispositive as to how the case was tried at the district court level. Id.

         Here, we need not decide how the case was tried to the district court because the only question before us is a legal question, which we review for correction of errors at law. See S.S. v. Iowa Dist. Ct., 528 N.W.2d 130, 132 (Iowa 1995) (stating that when an issue "is a purely legal question, . . . our review is at law").

         II. Discussion.

         It is undisputed the Danners built a grain leg[1] within the protected zone of the airport.[2] After the Danners built the grain leg in June 2013, the commission contacted the FAA and asked it to perform an aeronautical study of the new structure and its impact on flying near the airport. The FAA did so and then issued a letter, stating in part, "This aeronautical study revealed that the structure does exceed obstruction standards but would not be a hazard to air navigation provided the following condition(s)" are met. As conditions, the FAA instructed the Danners to paint the structure and add red lights to the top of it; the Danners complied. Additionally, the FAA increased the minimum descent altitude for the airport by 100 feet, meaning pilots had to approach the airport at a higher altitude.

         Because of its position and height within the protected zone, the grain leg constitutes an "airport hazard" pursuant to Iowa Code section 329.1(2) (2015) and local law.[3] An "airport hazard" is

any structure or tree or use of land which would exceed the federal obstruction standards as contained in 14 C.F.R. ยง 77.21, 77.23 and 77.25 . . . which obstruct the air space required for the flight of aircraft and landing or take-off at an airport or is ...

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