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The Carroll Airport Commission v. Danner

Supreme Court of Iowa

May 10, 2019

THE CARROLL AIRPORT COMMISSION, Appellee,
v.
LOREN W. DANNER and PAN DANNER, Appellants.

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

         On review from the Iowa Court of Appeals.

         A 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.

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

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

          WATERMAN, Justice.

         In this 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.

         The 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.

         On our 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.

         I. Background Facts and Proceedings.

         Loren 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.

         In 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.

         The 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.

         In 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.

         Meanwhile, 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 restrictions.

         The 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.

         In 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.

         The 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.

         Two 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.

         At 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 Danners.

         Crawford 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.

         The 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.

         Loren 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 unchallenged.

         In June 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 laws, stating,

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.

         The 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.

         The 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.

         The 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.

         II. Standard of Review.

         The 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).

         We 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." Id.

         Preemption, 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).

         III. Analysis.

         We must 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 757.[1] 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.

         We 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 defense.

         A. Federal Law.

         1. The Federal Aviation Act. The Federal Aviation Act of 1958, [2]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. § 40103(a)(1) (2017).

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).

         The 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).

         As one 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 rules;
(iii) the impact on existing public-use airports and aeronautical facilities;
(iv) the impact on planned public-use airports and aeronautical facilities;
(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).

         2. 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. § 77.1 (2018).

         The 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. ...


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