from the Iowa District Court for Carroll County, William C.
review from the Iowa Court of Appeals.
farmer seeks further review of a court of appeals decision
declining to give preemptive effect to a no-hazard
determination by the Federal Aviation Administration.
D. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for
C. Badding of Neu, Minnich, Comito, Halbur, Neu &
Badding, P.C., Carroll, for appellee.
appeal, we must determine the legal effect of a "no
hazard" letter issued by the Federal Aviation
Administration (FAA) to a farmer who built a twelve-story
grain leg (bucket elevator) near an airport. The structure
intrudes sixty feet into airspace restricted for aviation.
Construction was well underway when a member of the local
airport commission cried foul. The airport commission
informed the farmer he needed a variance and refused to grant
one, without waiting for input from federal officials.
Shortly thereafter, the FAA investigated and granted a
no-hazard determination, approving the structure on the
condition the farmer paint it and place blinking red lights
on top, which he did. The FAA also adjusted the flight path.
This did not satisfy the local commissioners, who two years
later filed this action in equity to force the farmer to
remove or modify the structure. The farmer raised an
affirmative defense that the federal no-hazard determination
preempted the local regulations.
district court, sitting in equity, rejected the preemption
defense and issued an injunction requiring the farmer to
remove or alter the grain leg at his expense and imposed a
daily penalty after a nine-month grace period to abate the
nuisance. The farmer appealed, and we transferred the case to
the court of appeals, which affirmed the rejection of his
preemption defense. We granted the farmer's application
for further review.
de novo review, we determine that the Federal Aviation Act
allows for local zoning regulation, and the no-hazard letter
did not preempt the local airport zoning regulations as a
matter of law. We affirm the district court's finding the
structure constitutes a threat to aviation requiring
abatement. But we conclude that the $200 daily penalty should
be vacated, and the nine-month period to modify or remove the
structure shall begin anew when procedendo issues. We affirm
the district court judgment as modified.
Background Facts and Proceedings.
and Pan Danner, husband and wife, live on a farm they own in
Carroll County, Iowa. Loren has been farming this land since
1968. Loren formerly raised livestock but has exclusively
grown row crops on the land since 2000. The Danner farm sits
under the flight path to the Arthur N. Neu Municipal Airport,
a facility managed by the Carroll Airport Commission (the
Commission). Local zoning ordinances mandate a protected zone
around the airport that extends 10, 000 feet horizontally
from the end of Runways 13 and 31 into an arc 150 feet above
the airport. The Danners' farm sits within this zone.
2009, after a particularly good harvest, Loren realized he
needed to find a way to more efficiently dry and store
harvested grain. He considered multiple options, but
ultimately decided to construct a grain leg (also known as a
bucket elevator) with attached storage bins. Loren and two
farm neighbors built five grain-storage bins of varying sizes
on the Danners' farmland. The five bins stand in a
semicircle around the grain leg. The grain leg is a
127-foot-tall structure with separate metal tubes sloping
down from its top to each storage bin.
grain leg stands within 10, 000 feet horizontally from the
end of Runway 31. The top of the structure is 1413.43 feet
above mean sea level. The protected airspace above the
airport is 1354 feet above mean sea level. The structure
reaches a height of 127 feet off the ground. The parties
agree the grain leg intrudes within the airport's
protected airspace by approximately sixty feet.
January 2013, before beginning construction of the grain leg,
Loren went to Carl Wilburn, the county zoning administrator,
to obtain a building permit. Wilburn issued the building
permit and granted the Danners an agricultural exemption from
the county zoning ordinances. The agricultural exemption,
however, did not exempt the Danners from the airport zoning
ordinances. The building permit application states, "All
farm buildings or structures are subject to the Airport
Zoning Ordinances which regulate height and emissions in
and around the airport air space as depicted on the attached
diagram[.]" The diagram attached to the permit showed
the airport's protected airspace. Despite this warning on
the building permit application, neither the Danners nor
Wilburn realized that the agricultural exemption did not
exempt the grain leg from the airport zoning regulations. For
that reason, the Commission was never notified of the
Danners' application for a building permit, and the
Danners failed to request a variance from the airport zoning
ordinance. Construction of the grain leg began in April and
was completed in August.
in June, Commissioner Greg Siemann noticed the grain leg
construction and became concerned. The next day, he contacted
Wilburn and Greg Schreck, the city zoning commissioner.
Wilburn informed Siemann that he had issued a building permit
to the Danners with an agricultural exemption and
acknowledged he was unaware of the local airport zoning
Commission notified the Danners that the grain leg required a
variance from the airport zoning regulations and informed the
Danners it would not consent to the violation of the
regulations or grant a variance. The Commission asked the FAA
to perform an aeronautical study of the grain leg and its
impact on aviation safety.
July, after performing the aeronautical study, the FAA issued
a "DETERMINATION OF NO HAZARD TO AIR NAVIGATION"
letter, stating in part, "This aeronautical study
revealed that the structure does exceed obstruction standards
but would not be a hazard to air navigation" if the
Danners met certain conditions. The FAA instructed the
Danners to paint the structure and add red lights to the top
of it. The no-hazard letter warned the Danners,
This determination concerns the effect of this structure on
the safe and efficient use of navigable airspace by aircraft
and does not relieve the sponsor of compliance
responsibilities relating to any law, ordinance, or
regulation of any Federal, State, or local government body.
Commission did not seek judicial review of the no-hazard
determination as permitted under federal law. See 14
C.F.R. §§ 77.37, .39, .41 (2013). The Danners
complied with the FAA's instructions, adding lights and
painting the grain leg. The FAA issued a "Notice to
Airmen" (NOTAM) that raised the minimum descent levels
for the airport by 100 feet, requiring pilots to approach the
airport at a higher altitude.
years later, in July 2015, the Commission filed this action
on the district court's equity docket alleging the grain
leg violated certain building ordinances, city and county
zoning ordinances, and airport commission regulations, and
constituted a nuisance and hazard to air traffic. The
Commission sought equitable relief-an injunction requiring
the Danners to modify or remove the grain leg. The Danners
filed an answer and jury demand. The Danners raised an
affirmative defense of federal preemption. The district court
struck the jury demand because the case was filed in equity.
The case proceeded to a bench trial.
trial, the following witnesses testified for the Commission:
C. Peter Crawford, the engineer for the airport; John
McLaughlin, a meteorologist, pilot, and flight instructor;
Donald Mensen, fixed base operator of the airport; Kevin
Wittrock, a commissioner and a pilot; and Siemann, an
attorney, pilot, and commissioner. Loren Danner testified on
his own behalf. No pilot or aviation expert testified for the
testified about the engineering survey of the grain leg in
relation to Runway 31 of the airport. The survey showed that
the grain leg was 7718 feet from the end of Runway 31 and
within the airport's protected zone.
other witnesses gave opinion testimony that the grain leg
constituted a hazard to aviation. The pilots testified about
their experiences flying over the grain leg when landing at
the airport and expressed their concerns for student pilots
or pilots distracted while landing. The Commission also
presented testimony that the grain leg would jeopardize the
airport's ability to secure federal grant money. The
record indicates, however, that the airport received two
federal grants, one for $284, 466 and another for $263, 200,
after the Danners installed the grain leg.
testified that it cost approximately $274, 928 to construct
the grain leg, $32, 942 to install a concrete drive-over pad,
and $8000 for an electrical contractor. Loren testified that
if the height of the grain leg was reduced, he could no
longer rely on gravity to move the grain from the distributor
to the storage bins. Instead, he would need to install
conveyors. Loren estimated that the cost to tear down the
grain leg and rebuild it with conveyors to each of the
storage bins in compliance with the zoning regulations would
be approximately $450, 000. These cost figures went
2017, the district court found that the grain leg violated
state and local zoning ordinances and constituted a nuisance
and an airport hazard under Iowa Code sections 329.2 and
657.2(8) (2015). The court found that the grain leg did not
fall within the agricultural exemption to certain zoning
laws. The court rejected the Danners' affirmative defense
that the no-hazard letter preempted state and local zoning
While the FAA regulations certainly do apply, the local
county regulations can also be in effect. The local
regulations take a more stringent stance on what a hazard is
and how it could affect the air space. If the FAA regulations
contained all airport and safety regulations there would be
no need for the State to designate zoning powers to the
Commission. The Court finds that these regulations in fact
work together and the FAA regulations and letter sent do not
preempt the local regulations.
district court gave no evidentiary weight to the FAA's
aeronautical study and no-hazard determination. The district
court ordered the Danners to either remove the grain leg or
modify its height to comply with the local regulations
regarding the airport's protected airspace. The Danners
filed a motion for judgment notwithstanding the verdict and a
motion for new trial in light of our ruling in State v.
Martinez, 896 N.W.2d 737 (Iowa 2017) (addressing
preemptive effect of federal immigration laws). The district
court denied the Danners' motions.
Commission moved pursuant to Iowa Rule of Civil Procedure
1.904(2) to enlarge the order to set a date certain for
abatement and to impose a daily penalty after that date. On
September 5, the district court, after conferring with
counsel, set May 1, 2018, as the date by which the Danners
had to remove the grain leg or lower it by sixty feet, with a
$200 per diem penalty every day thereafter accruing against
the Danners jointly and severally.
Danners appealed. We transferred the case to the court of
appeals. The court of appeals affirmed, concluding that the
doctrines of express, implied, and conflict preemption did
not apply to the FAA no-hazard determination. The Danners
filed an application for further review, which we granted.
Standard of Review.
parties disagree as to the standard of review. The Commission
contends the case was tried as a law action because the trial
court ruled on objections. The Danners contend the case was
tried in equity. "Generally, our review of a decision by
the district court following a bench trial depends upon the
manner in which the case was tried to the court."
Collins Tr. v. Allamakee Cty. Bd. of Supervisors,
599 N.W.2d 460, 463 (Iowa 1999). If the case is tried at law,
our review is for correction of errors at law. Id.
"Our review of cases tried in equity is de novo."
City of Eagle Grove v. Cahalan Invs., LLC, 904
N.W.2d 552, 558 (Iowa 2017).
conclude this case was tried in equity. The Commission filed
the action in equity and sought only equitable relief-a
permanent injunction. Notably, the district court struck the
Danners' jury demand based on its ruling that this is an
action in equity. Accordingly, our review is de novo.
Id. "Nevertheless, we give weight to the
factual findings of the district court, especially with
respect to determinations of witness credibility."
however, is a question of federal law. See Martinez,
896 N.W.2d at 746-47; Freeman v. Grain Processing
Corp., 848 N.W.2d 58, 75 (Iowa 2014) (reviewing
principles of federal preemption). "We review the
district court's legal conclusions for correction of
errors at law." Walnut Creek Townhome Ass'n v.
Depositors Ins., 913 N.W.2d 80, 87 (Iowa 2018).
decide whether the FAA's no-hazard determination for the
Danners' grain leg preempts state and local zoning
ordinances limiting the height of structures in or near
flight paths. The Danners rely on Martinez,
contending our recent acknowledgment of the supremacy and
sweeping preemptive effect of federal immigration law in that
case supports preemption under federal aviation law here. In
Martinez, we held federal immigration law preempted
the state criminal prosecution of an undocumented worker for
using false identity papers to gain employment. 896 N.W.2d at
Federal immigration and aviation law alike can supersede
conflicting local regulations. At first glance, the Danners
have more to argue in favor of preemption than Martha Aracely
Martinez, who lacked a specific finding in her favor by
federal authorities. By contrast, the FAA specifically
investigated the Danners' grain leg and issued a
no-hazard determination (subject to conditions, which they
satisfied). Federal aviation law, however, allows room for
local zoning regulation. In our view, Martinez is
not controlling here, and we will focus our analysis on
aviation law and court decisions addressing the legal effect
of FAA no-hazard determinations.
first address the Federal Aviation Act and the federal
regulations promulgated to implement the Act's safety
standards. We next address Iowa state and local laws
regulating structures near airports. We conclude federal law
and the FAA no-hazard determination allow for local
regulation of tall structures in flight paths, and the
district court correctly rejected the Danner's preemption
The Federal Aviation Act. The Federal Aviation Act
of 1958, codified as amended at 49 U.S.C. Subtit.
VII, was created "for the purpose of centralizing in a
single authority . . . the power to frame rules for the safe
and efficient use of the nation's airspace." Air
Line Pilots Ass'n, Int'l v. Quesada, 276 F.2d
892, 894 (2d Cir. 1960). Pursuant to the Act, "[t]he
United States Government has exclusive sovereignty of
airspace of the United States." 49 U.S.C. §
The Administrator of the Federal Aviation Administration
shall develop plans and policy for the use of the navigable
airspace and assign by regulation or order the use of the
airspace necessary to ensure the safety of aircraft and the
efficient use of airspace.
Id. § 40103(b)(1).
Administrator "shall promote safe flight of civil
aircraft in air commerce by prescribing . . . regulations and
minimum standards for other practices, methods, and procedure
the Administrator finds necessary for safety in air commerce
and national security." Id. § 44701(a)(5).
These safety standards apply to airports such as the Arthur
N. Neu Municipal Airport. Id. § 44701(b). The
Administrator is directed to carry out the safety regulation
"chapter in a way that best tends to reduce or eliminate
the possibility or recurrence of accidents in air
transportation." Id. § 44701(c).
aspect of airport and aircraft safety, the Act regulates the
construction of structures that interfere with airspace. This
includes prescribing notice requirements for individuals who
seek to build or expand a structure. Id. §
44718(a). The Act provides for aeronautical studies to
determine the impact of the proposed construction.
Id. § 44718(b). During an aeronautical study,
the Secretary of Transportation must
(A) consider factors relevant to the efficient and effective
use of the navigable airspace, including-
(i) the impact on arrival, departure, and en route procedures
for aircraft operating under visual flight rules;
(ii) the impact on arrival, departure, and en route
procedures for aircraft operating under instrument flight
(iii) the impact on existing public-use airports and
(iv) the impact on planned public-use airports and
(v) the cumulative impact resulting from the proposed
construction or alteration of a structure when combined with
the impact of other existing or proposed structures; and
(vi) other factors relevant to the efficient and effective
use of navigable airspace[.]
Id. § 44718(b)(1)(A)(i)-(vi). To implement the
Act's requirements, Congress empowered the FAA to
promulgate regulations. Id. § 40103(b).
The federal regulations. Title 14, part 77 of the
Code of Federal Regulations sets forth notice requirements
for proposed construction, guidance on determining whether
proposed construction or an existing structure is an
obstruction to air navigation, the aeronautical study and
hazard/no-hazard determination process, and the procedure for
petitions for review of such determinations. 14 C.F.R. §
regulations state that obstructions are presumed to be
airport hazards unless an aeronautical study determines
otherwise. Id. § 77.15(b). The FAA uses the
safety regulations, as well as FAA policy and guidance
materials, to determine whether an obstruction is an airport
hazard. Id.; see also id. ...