“[T]he ‘primarily adapted’ test allows county zoning authorities to consider the overall importance and underlying purpose of the agricultural activities in question.”
How later courts described this case
- “[T]he ‘primarily adapted’ test allows county zoning authorities to consider the overall importance and underlying purpose of the agricultural activities in question.”
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF IOWA
No. 11–0683
Filed March 29, 2013
DARYL D. LANG,
Plaintiff,
vs.
LINN COUNTY BOARD OF ADJUSTMENT,
Defendant.
DARYL D. LANG and ARLENE P. LANG,
Plaintiff,
vs.
LINN COUNTY BOARD OF ADJUSTMENT,
Defendant.
On review from the Iowa Court of Appeals.
Certiorari to the Iowa District Court for Linn County, Ian K.
Thornhill, Judge.
Property owners seek further review of a court of appeals decision
upholding the district court’s denial of their certiorari petitions
challenging certain county zoning decisions. WRITS ANNULLED;
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
2
Robert M. Hogg and James W. Affeldt of Elderkin & Pirnie, P.L.C.,
Cedar Rapids, for plaintiff.
Gerald A. Vander Sanden, County Attorney, and Robert A. Hruska,
Assistant County Attorney, for defendant.
3
MANSFIELD, Justice.
I. Introduction.
This certiorari proceeding requires us to address the agricultural
exemption from county zoning. See Iowa Code § 335.2 (2011). The
property owners who brought this action had a lengthy dispute with Linn
County over whether houses they had built were subject to the county’s
zoning and subdivision ordinances. We are asked to review two separate
decisions by the Linn County Board of Adjustment—in 2004 to deny an
agricultural exemption for a 6.52-acre parcel that included the property
owners’ residence; and in 2007 to deny an agricultural exemption for a
second house on a 43.3-acre parcel that the property owners argued was
an additional farmhouse. Although the issues are close, we ultimately
conclude substantial evidence supports the Board’s determinations that
the houses at issue were not “primarily adapted, by reason of nature and
area, for use for agricultural purposes.” Id. In reaching our conclusions,
we are significantly aided by the thorough and well-reasoned opinions
authored by the district court and both the majority and the dissent of
the court of appeals.
II. Facts and Procedural Background.
The history of this matter is complicated, but we will attempt a
summary. In 1995, the Langs acquired a 48.9-acre parcel near
Springville in Linn County. At the time, the parcel contained one single-
family dwelling. The property includes grassland, trees, and a pond.
Using the farmstead split process, the Langs subdivided a parcel
from the 48.9 acres consisting of the original house (House #1) and
approximately 1.86 acres around it. They sold that parcel to a third
party in 1997.
4
The Langs then built a second house (House #2) on the remaining
forty-seven acres. They occupied that house for a period of time. In
1999, the Langs petitioned repeatedly to have a separate parcel
consisting of the second house and a surrounding 3.7 acres rezoned
residential. The county turned down these requests. Ultimately, the
Langs subdivided and conveyed the 3.7 acres with the second house to
Mr. Lang individually. In 2002, the county approved the subdivision, but
made clear that it was doing so on the basis of an agricultural
exemption, and “[i]f at any time this tract is sold and no longer has
agriculture occurring or the house is occupied by persons not ‘engaged in
agriculture,’ this parcel may be considered to be nonconforming unless
in compliance with zoning regulations in effect at that time.” Later that
year, Mr. Lang sold the 3.7-acre parcel including House #2 to another
third party.
The Langs wanted to build two additional houses (House #3 and
House #4) on the remaining 43.3 acres, which they still owned jointly.
Linn County zoning prohibits more than one dwelling on a single piece of
property. Thus, the Langs applied for an agricultural exemption from the
zoning ordinance, representing that both houses would be occupied by
the Lang family and would be engaged in the farming operation on the
property. The county granted the exemption in May 2000, but cautioned
that “the property may not be eligible to be subdivided” and the Langs
should be aware “of the implications of two dwelling units on the same
parcel of land.”
In August 2002, the county issued a notice of zoning violation for
the Langs’ property (the 43.3 acres with the two houses). Although the
Langs had personally moved into House #4, the county maintained that
the other house (House #3) had never been occupied by Lang family
5
members but instead was being rented out to tenants who were not
participating in the farming operation. As a result, according to the
county, Mr. Lang was in violation of the zoning ordinance prohibiting
more than one house on a property. Following a trial in July 2003, the
district court ruled in the county’s favor. It found the occupants were
“mere tenants” and “it is quite a stretch to state that these occupants are
‘engaged in the agricultural operation.’ For the most part, these
occupants inure their livelihood from activities off the property and
wholly unrelated to agriculture.” The court enjoined Mr. Lang from
having House #3 occupied by someone who was not engaged in the
farming operation and further ordered that the house “remain vacant
until the Defendant provides satisfactory evidence to the Plaintiff that the
house would be occupied by someone engaged in the farming operation.”
The court also imposed a $500 civil penalty under the Linn County Code
of Ordinances. Mr. Lang did not appeal this order.
In February 2004, the county initiated contempt proceedings
against Mr. Lang. Following a hearing in June 2004, the district court
adjudicated Mr. Lang in contempt, determining that he had willfully
disobeyed the court’s prior order. The court fined Mr. Lang $500. The
court found that Mr. Lang had arranged for other tenants to occupy
House #3 without notifying the county and that the tenants were again
not actively engaged in the farming operation. The court added:
The Court wholly discounts Mr. Lang’s assertion that
these tenants served as a ‘security guard’ and therefore are
engaged in the farming operation. Mr. Lang lives on the
same parcel. . . . There is nothing unique about a tree farm
or a fish farm which necessitates any more security than any
other farming operation in this state.
For the most part, the labor-intensive part of the tree
farm and fish farm have already been concluded. While it
may be the case that from time to time additional trees will
6
need to be planted, there is little other activity with regard to
the tree farm for anyone to do other than occasionally walk
the area to check for damage or disease. Mr. Lang can
certainly accomplish this fact without hiring it done . . . .
Mr. Lang pays no money to have these persons
engaged in his farming operation. To the contrary, he only
claims that they are the benef[iciaries] of reduced rent.
Quite obviously, if the house is not occupied, Mr. Lang would
be receiving no rent, so even reduced rent is a benefit to him.
Furthermore, Mr. Lang has provided no evidence that the
rent for this property is in fact substantially lower than other
rural properties of similar kind and character.
. . . It well appears to this Court that Mr. Lang acts
first and then chooses later to reconcile his conduct with the
ordinance.
Mr. Lang did not appeal this contempt finding.
Meanwhile, in September 2003, the Langs began to attempt to
solve their two-house problem in a different way. They subdivided their
property once again by conveying 6.52 acres of the 43.3 acres to Daryl
Lang, individually. This 6.52-acre parcel included the larger of the two
houses (House #4—the one the Langs occupied), but not the smaller
“tenant” house (House #3). The Langs figured that if both properties
could qualify separately as farm properties with their own farmhouses,
the entire 43.3 acres and both houses would benefit from an agricultural
exemption.
The 6.52-acre parcel was in the shape of a long and narrow
rectangle. One end of the rectangle connected to the road. House #4
was at the other end, with a driveway running the length of the
rectangle. The proposed subdivision included a fragment of the pond,
which House #4 overlooked.
In December 2003, the county cited Mr. Lang for a
zoning/subdivision violation because the minimum home lot size in that
area of the county was thirty-five acres unless an approved plat existed
7
(and none existed here for the 6.52-acre parcel). Mr. Lang responded by
seeking an agricultural zoning exemption from the county for “a house
located on a 6.52-acre tract of land.” On his exemption sheet, Mr. Lang
listed the following crops as being produced on the property:
Trees, 4–5 acres, 80% for commercial production
Raspberries, 0.1 acres, 10% for commercial production
Blackberries, 0.1 acres, 10% for commercial production
Asparagus, apples, 1.0 acres, 75% for commercial
production
Grapes, tomatoes, 0.2 acres, 15% for commercial production
Mr. Lang’s request for an exemption was denied by the county’s zoning
administrator. Mr. Lang appealed to the Linn County Board of
Adjustment, and in June 2004, a hearing took place. The fighting issue
was whether the Langs’ residence (House #4) could qualify as a
farmhouse now that it was only attached to the 6.52 acres.
Photographs that were introduced into evidence at the June 2004
hearing revealed that House #4 on the 6.52 acres was quite substantial
with two-story gabled wings. Surrounding the house was a well-kept
lawn.1
Although the Langs claimed to be producing trees, raspberries,
blackberries, asparagus, apples, grapes, and tomatoes on the 6.52 acres
in their exemption filing, they provided no records of production or sales.
The photographs indicated that the raspberry bushes were wild and in a
wooded thicket. So was the grapevine. The asparagus appeared to be
wild as well. There was a photograph showing three apple trees. The
Langs did buy approximately 3400 infant trees at a cost of approximately
$1500 from the State Forest Nursery, a division of the Iowa Department
1The photographs of the Langs’ property were taken with their permission.
8
of Natural Resources (DNR), and had planted some of them on the 6.52
acres; the record does not indicate how many were planted there as
opposed to on the other parcel. Nonetheless, the 6.52 acres clearly
contained a large number of young trees, as well as preexisting wild
trees.2
The Langs established at the Board hearing that they had enrolled
their tree planting in DNR’s Resource Enhancement and Protection
(REAP) program. Additionally, they pointed out that portions of the
remaining thirty-five-plus acres (what was left behind after the
conveyance of the 6.52 acres) were enrolled in the United States
Department of Agriculture’s Conservation Resource Program (CRP). The
Langs also argued at considerable length that House #4 could be
considered a farmhouse because they owned other farmland in Jones
County, Johnson County, and elsewhere in Linn County. They insisted
that the house did not need to be contiguous, or even near, the farmland
that gave the house “farmhouse” status.3
No neighbors appeared at the Board hearing in support of the
Langs’ request for an agricultural exemption for their house. Two
neighbors testified in opposition. One of them, the purchaser of the
original house from the Langs on the 1.86 acres, said that “more and
more houses have been added” and that he felt he was “living in a
development.” He explained that he had paid the Langs more than the
2Mr. Lang’s May 2004 “General Tree Management Plan” provided that his
objectives were:
To establish a woodland area on property.
To have an opportunity to work with trees.
To provide habitat for wildlife.
For future financial potential.
To keep woodland in good condition for future generations.
3Mr. Lang acknowledged, however, that he is not primarily employed in farming.
9
asking price for his house because the farmhouse split had been
completed, and he did not expect further development. Another neighbor
said that if the exemption were granted by the county, “anyone claiming
to be a farm could build and split out the house and build and split the
house without meeting any zoning requirements.”
The zoning administrator contended at the Board hearing that
“based on the pattern of events in the past, the size and the current use
of the parcel, and the occupants’ tenuous involvement if any in
agriculture, . . . the subject house cannot be considered to be a
farmhouse.” The zoning administrator said that it was important to look
at the “surrounding events” because there was no clear, bright-line legal
definition of what constitutes a farmhouse. The zoning administrator
therefore recommended denial of the agricultural exemption for the
house.
At the conclusion of the hearing, the zoning administrator’s
determination was upheld by the Board on a two-to-two divided vote.
See Iowa Code § 335.17 (indicating that the concurring vote of three
members of the board shall be necessary to reverse any decision of the
administrative official).
Unable to obtain county approval for the carve-out of the 6.52
acres that included House #4, the Langs sought certiorari review from
the district court. The certiorari proceeding over the June 2004 Board
proceeding comprises the first part of the Langs’ present appeal.
In the meantime, the Langs tried again to obtain an agricultural
zoning exemption from the county for two houses (House #3 and House
#4) on the full 43.3 acres (i.e., an unsubdivided property). As before, this
effort was based on having a tenant in House #3 who was an active
10
participant in the agricultural operation.4 A lease was prepared between
the Langs and their proposed tenants, Edwin and Bernice Tiernan. The
lease was submitted to the county and specifically provided that
“Mr. Tiernan’s contribution to the Agricultural Operation will never be
less than 24.5 hrs/wk and usually will be more than this.” Various
chores were listed with corresponding minimum times for performing
those chores. For example, the lease required that Mr. Tiernan “case” (or
inspect) the tree farm a minimum of 1.5 hours per day.
In February 2005, by a three-to-two vote, the Board overruled the
recommendation of the zoning administrator and granted an agricultural
exemption for the Tiernans’ proposed tenancy for House #3. However,
the Board required Mr. Tiernan to keep and file a log documenting “the
number of hours and nature of work performed” in order to allow the
county to monitor on an ongoing basis whether the Tiernans’ occupancy
of the house would continue to qualify for an agricultural exemption.
Mr. Tiernan died late in 2006, and Ms. Tiernan moved out in
March 2007. At this point, the Langs sought to have Ms. Lang’s son and
his family move into the house. This would have been a violation of the
July 2003 court order unless the Langs first sought the county’s
approval and demonstrated that the proposed use of House #3 would
meet the criteria for an agricultural exemption. The Langs indicated that
Ms. Lang’s son would perform the same tasks Mr. Tiernan had been
doing.
The county zoning administrator reviewed the Tiernan 2005–2006
log reports. Based thereon, he recommended denial of the Langs’ request
4As noted before, under the July 2003 court order, so long as both House #3
and House #4 were situated on the same parcel, House #3 had to remain vacant unless
the Langs “provide[d] satisfactory evidence to the [county] that the house would be
occupied by someone engaged in the farming operation.”
11
for a continued agricultural exemption for House #3. Even accepting the
log as true and accurate, the administrator concluded that Mr. Tiernan
had spent only an average of 2.6 hours per workday, or well less than
half-time, on tasks that could be classified as agricultural. Thus, the
administrator concluded that House #3 could not be considered a second
farmhouse on the property, as the tenants were not “primarily engaged in
agriculture.”
In May 2007, this matter went to a hearing before the Board.
House #3, a ranch house, is not as large as House #4. At the hearing,
the Langs reported that they had planted thousands of trees on the land,
that they had stocked fish in the pond (although no fish had ever been
harvested and no one had ever been charged to fish there), and that
sheep grazed on the land.
Two neighbors appeared at the Board hearing and questioned the
accuracy of the log. One said Mr. Tiernan was a
nice old guy and he was very sick and he probably didn’t do
a tenth of the hours. . . . He wasn’t able. . . . He went to
Iowa City and had a bone marrow transplant and was in
terrible shape and he finally died.
This neighbor added that the sheep did not belong to the Langs; they
belonged to someone else. As he put it, the Langs “bring them in when
they have a case before [the county] and they [the sheep] go back home
when the case is over or a little after.” He added that the person who
owned the sheep (not Mr. Tiernan) came and checked on them daily
while they were on the Langs’ property.5 The neighbor concluded, “It
would be handy for everybody if we could all have a noninspected,
nonconforming house, rent it out, and call it a farmhouse.”
5Mr. Lang disputed that the sheep were only present when the Langs had a
matter before the county, but he did not dispute that they were owned by someone else
who actually took care of them.
12
Another neighbor said, “In my opinion it’s a backdoor opportunity
to develop a housing development.” She acknowledged that Mr. Tiernan
was living in the house, but she said he was fighting cancer and “a lot of
times we didn’t see him come out of the house.” As at the previous
hearing, no neighbors appeared in support of the Langs.
As noted, the Langs indicated their son would be taking over
Mr. Tiernan’s role in the farm operation. But when she was specifically
asked, Ms. Lang acknowledged that her son would be working an off-
farm job to support his family. She did not state what that job was or
how much time it would take.
After hearing the evidence, the Board voted three-to-one to deny an
agricultural zoning exemption for the planned occupancy of House #3.
The Langs sought certiorari review from the district court of this
determination as well. The district court subsequently consolidated this
proceeding with the separate proceeding challenging the June 2004
Board decision.
On April 14, 2011, the district court issued a lengthy ruling in the
combined case. It found that substantial evidence supported both the
Board’s decision in June 2004 to deny the agricultural exemption to
House #4 on the 6.52 acres, and the Board’s decision in May 2007 to
deny the agricultural exemption to House #3 on the 43.3 acres (that also
included House #4). Accordingly, it denied the Langs’ petitions for writ of
certiorari.
The Langs appealed, and we transferred the case to the court of
appeals. The court of appeals affirmed the district court’s ruling in a
split decision, with one panel member dissenting. We granted further
review.
13
III. Standard of Review.
The parties agree that the Board’s factual findings should be
reviewed for substantial evidence. See Bontrager Auto Serv., Inc. v.
Iowa City Bd. of Adjustment, 748 N.W.2d 483, 495 (Iowa 2008)
(interpreting the identically worded provisions of chapter 414—regarding
city zoning). “If the reasonableness of the board’s action is open to a fair
difference of opinion, the court may not substitute its decision for that of
the board.” W & G McKinney Farms, L.P. v. Dallas Cnty. Bd. of
Adjustment, 674 N.W.2d 99, 103 (Iowa 2004) (citation and internal
quotation marks omitted). We, of course, review claimed legal errors for
correction of errors at law. Id.
IV. Legal Analysis.
Chapter 335 of the Iowa Code empowers counties to engage in
zoning. However, section 335.2 provides:
Except to the extent required to implement section
335.27, no ordinance adopted under this chapter applies to
land, farm houses, farm barns, farm outbuildings or other
buildings or structures which are primarily adapted, by
reason of nature and area, for use for agricultural purposes,
while so used.
Originally, this provision read:
No regulation or ordinance adopted under the provisions of
this act shall be construed to apply to land, farm houses,
farm barns, farm outbuildings or other buildings, structures,
or erections which are adapted, by reason of nature and
area, for use for agricultural purposes as a primary means of
livelihood, while so used.
See 1947 Iowa Acts ch. 184, § 2 (codified at Iowa Code § 358A.2 (1950)).
In 1963, the general assembly amended the relevant part of the
statute by changing the clause, “which are adapted, by reason of nature
and area, for use for agricultural purposes as a primary means of
livelihood, while so used,” to the present version. See 1963 Iowa Acts ch.
14
218, § 2 (codified at Iowa Code § 358A.2 (1966), currently found, as
amended, at Iowa Code § 335.2 (2011)). Thus, the general assembly
deleted the requirement that the agricultural use of the property had to
be “a primary means of livelihood,” but added a requirement that the
property had to be “primarily” adapted to agricultural use.
Accordingly, following the 1963 amendment, the plain language of
section 335.2 makes it clear that an applicant for an exemption must
demonstrate that the “land, farm houses, farm barns, farm outbuildings
or other buildings or structures” are “primarily adapted” for the asserted
agricultural purpose. An applicant can demonstrate this based on
“nature and area.”
In this proceeding, the district court concluded that the 6.52 acres
of land with House #4 were “not primarily adapted, by reason of nature
and area, for use for agricultural purposes” and, therefore, upheld the
Board’s June 2004 denial of that exemption. Additionally, the court
upheld the Board’s May 2007 denial of the exemption with respect to
House #3 under the two-house scenario with Ms. Lang’s son and family
occupying House #3. There as well, the district court concluded that the
alleged farmhouse was not “primarily adapted, by reason of nature and
area, for use for agricultural purposes.” See Iowa Code § 335.2.
We most recently had to interpret section 335.2 in Kuehl v. Cass
County, 555 N.W.2d 686 (Iowa 1996). There, we held that the plaintiffs
were entitled to an exemption from county zoning regulations for the
erection of hog confinement buildings on a five-acre site. Id. at 687–89.
We concluded:
We believe that a fair reading of the words “for use for
agricultural purposes” read in the context of the act refers to
the functional aspects of buildings and other structures,
existing or proposed. The qualifying words “primarily
15
adapted by reason of nature and area” also refer to the
proposed structures and the site on which they are located.
We have recognized . . . that in determining what uses are
for agricultural purposes we view agriculture as the art or
science of cultivating the ground, including harvesting of
crops and rearing and management of livestock. Applying
this standard, it appears without dispute that the structures
proposed to be erected by the Kuehls and Hollmans are
primarily adapted for agricultural use by reason of the
nature of the structures. Moreover, there is no circumstance
incident to the site on which they are located that in any way
detracts from that purpose.
Id. at 688–89.
We have not previously decided when a house becomes a
farmhouse for section 335.2 purposes. However, in 1997, the attorney
general issued an opinion. See Op. Att’y Gen. No. 97–1–1(L) (Jan. 17,
1997), 1997 WL 994719. Among other things, the attorney general
indicated that the individuals inhabiting any farmhouses need to be
“engaged in agriculture on the land where the houses are located.” Id. at
*5. Based on the 1963 amendment to the statute, the attorney general
added that the individuals do not have to be engaged in commercial
agriculture as a primary source of income. Id. Yet, “the acreage of the
farm involved certainly may be a relevant factor.” Id. at *4.
A. The Board’s June 2004 Determination. In our view, the
Board could reasonably conclude that the Langs’ large, manorial
residence on the 6.52 acres was a residential tail wagging a farmland dog
and that the property as a whole was not primarily dedicated to
agriculture. Although the Langs had recently planted small trees, they
could not be expected to mature for many years and could be viewed as
having an aesthetic purpose. Photographs indicated that the other
claimed farming activities were not substantial in scope, even relative to
the size of the parcel. The Langs presented no evidence of actual
16
production, beyond the bare claims they made in their application for an
agricultural exemption.
Our legislature clearly indicated by the 1963 amendment that the
agricultural activities need not be “a primary means of livelihood.”
However, the legislature at the same time added the requirement that the
property be “primarily” adapted to agricultural use. In our view, this
authorizes the county to deny the farmhouse exemption when the record,
as here, indicates that the agricultural activities are basically a sideline
designed to obtain an agricultural zoning exemption for the owners’
residence. The Board was entitled to look at the relative size, value, and
construction date of the house compared to the scope, value, and
duration of the claimed agricultural activities. For example, we do not
believe the legislature intended to allow a homeowner to avoid county
zoning requirements simply by having a tomato patch in his or her
backyard.
No one doubts that farm income is subject to ups and downs.
Iowa’s farm families have to be entrepreneurs, and often they have to
take on second and third jobs. The legislature did not want a farmer to
lose a zoning exemption for an acreage just because farm income did not
provide most of the dollars needed to put food on the table. Yet, at the
same time, by replacing “primary means of livelihood” with “primarily
adapted,” the legislature did indicate that the overall importance and
scope of the agricultural operation could be considered in determining
the status of an alleged farmhouse. See 1963 Iowa Acts ch. 218, § 2.
Furthermore, the legislature continued to make it clear that the
“nature and area” of the property could be taken into account. See Iowa
Code § 335.2. The term “nature” is often used to refer to the “inherent
character” or “essential characteristics” of a thing. See Merriam–
17
Webster’s Collegiate Dictionary 826 (11th ed. 2004). Thus, the
legislature’s language would appear to authorize a county to look at the
underlying realities of the situation.
We believe a recent court of appeals decision is instructive. See
Kramer v. Bd. of Adjustment, 795 N.W.2d 86, 92 (Iowa Ct. App. 2010).
There, a storage lagoon was constructed on farmland to hold organic
wastewater from a nearby chondroitin sulfate plant. Id. at 88. The
argument was made that the lagoon should be exempt from county
zoning because the wastewater was used for fertilizing the crops on the
farmland (although it could not be sold to any other party). Id. at 91.
The court of appeals rejected this argument, holding that the wastewater
storage lagoon was not “primarily adapted for use for agricultural
purposes,” even though the wastewater may have “some fortuitous
benefit to crop enhancement.” Id. at 93. We agree with the court of
appeals that the “primarily adapted” test allows county zoning
authorities to consider the overall importance and underlying purpose of
the agricultural activities in question.
The Langs contend that the county applied a minimum-acreage
test and flunked the 6.52-acre parcel simply because it was not big
enough. It would have been improper to utilize such a litmus test, but
the county did not do so. It is true that under the Linn County zoning
ordinances, so long as the Langs’ land exceeded thirty-five acres and was
used for agricultural production it was conclusively presumed to be
entitled to the agricultural exemption. Thus, the county has never
disputed that the Langs could treat their residence as an exempt
farmhouse while on the 43.3 acres that included the vast majority of the
fish pond and all the CRP acreage.
18
However, the zoning administrator’s report, the recording of the
June 2004 hearing, and the report of the Board’s two-to-two decision all
indicate that the county did not summarily reject the Langs’ application
based on lot size. Rather, it took into account a variety of circumstances
and applied the appropriate standard—whether the 6.52-acre lot and
house were “primarily adapted, by reason of nature and area, for use for
agricultural purposes.” See Iowa Code § 335.2. In particular, the zoning
administrator questioned the bona fides and substantiality of the Langs’
agricultural activities on the 6.52 acres.
Once the Langs attempted to subdivide the property so that their
residence rested on only 6.52 acres, the relevant question became
whether that parcel and the large residence thereon, not some adjoining
parcel, were “primarily adapted” to agricultural purposes. The size of the
parcel was one appropriate consideration. See id. (stating that “area” is a
consideration); Op. Iowa Att’y Gen. No. 97–1–1(L) at *4. If size were not
relevant, then nothing could prevent a developer from obtaining a zoning
exemption for an entire development subdivided into half-acre lots so
long as some agricultural product were planted in the development and
tended by the homeowners.
Like the district court, we view this as a close case, and our
decision is largely tied to the standard of review and the statutory
requirement that the property be primarily adapted for use for
agricultural purposes. Certainly, the statute contemplates the possibility
of 6.52-acre farms. But in this case, the county’s determination was
supported by substantial evidence.
B. The Board’s May 2007 Determination. The May 2007
hearing concerned whether House #3 on the 43.3 acres when occupied
by Ms. Lang’s son would qualify for an agricultural zoning exemption as
19
a second farmhouse in addition to House #4. Because the county
ordinances prohibit more than one dwelling on a single undivided parcel
of land, the Langs needed to have an agricultural exemption for House #3
in order to avoid a violation of the ordinances and the existing court
order. The county has never disputed that the 43.3 acres of land, taken
as a whole, should be deemed agricultural. However, regardless of the
status of the land, section 335.2 anticipates that a county may consider
whether a specific building or structure thereon is primarily adapted for
use for agricultural purposes. See Iowa Code § 335.2 (stating that “no
ordinance adopted under this chapter applies to land, farm houses, farm
barns, farm outbuildings or other buildings or structures which are
primarily adapted, by reason of nature and area, for use for agricultural
purposes, while so used” (emphasis added)); DeCoster v. Franklin County,
497 N.W.2d 849, 853 (Iowa 1993) (considering whether a waste storage
basin on agricultural land was entitled to an agricultural zoning
exemption and determining that it was); Kramer, 795 N.W.2d at 93–94
(finding that a lagoon on farmland was not entitled to such an
exemption).
In recommending denial of the exemption, the zoning
administrator emphasized that, based on his reading of the log, the prior
tenant had devoted only 2.6 hours a day to what he considered to be
agricultural activities. The Langs represented that Ms. Lang’s son was
going to perform the same tasks, making the prior tenant’s performance
a fair benchmark.6 Moreover, Ms. Lang’s son, unlike Mr. Tiernan, was
going to have a regular day job, the details of which the Langs did not
6As previously noted, under the existing court order, which Mr. Lang did not
appeal, Ms. Lang’s son and family could not occupy House #3 without first
demonstrating to the county that the occupancy would qualify for an agricultural
exemption.
20
disclose. In addition, significant evidence emerged at the hearing that
the log itself was overstated. Neighbors pointed out that Mr. Tiernan was
not outside very much and was undergoing medical treatment for a
serious illness. One board member “questioned the number of hours
logged for mowing, stating they seemed excessive for the number of
acres.” It was also essentially undisputed that Mr. Tiernan had not
cared for the sheep, even though the lease presented by the Langs had
stated that he would provide an hour of care for them each day.
Based on the foregoing, we believe substantial evidence supports
the Board’s finding that House #3 under the son’s tenancy would not be
“primarily adapted” for agricultural purposes. See Iowa Code § 335.2
(stating that the agricultural zoning exemption applies only when the
property is “so used” for agricultural purposes). When landowners build
an additional house on their land, rent it out, and then want to claim it
as another exempt farmhouse, it is appropriate for the county to ask how
much time the tenants of the house spend on farming activities.
Otherwise, a farmer could erect multiple homes and avoid county zoning
simply by assigning nominal farm tasks to an occupant of each home.
See State v. Huffman, 253 N.E.2d 812, 816–17 (Ohio Ct. App. 1969)
(upholding a finding that the defendant violated an agricultural use
zoning ordinance when he allowed two mobile homes to be placed on his
property and rejecting the argument that the mobile homes were
“incident to” an agricultural use even though one of the tenants worked
“occasionally” or “part-time” on the farm).
The Langs claim that the county in effect backtracked on its 2005
agreement when it declined to grant an exemption in 2007. However, the
record would support the opposite conclusion: namely, that even though
an agreement was reached, it was not fulfilled by the Langs’ prior tenant.
21
This is not to fault Mr. Tiernan; he was seriously ill. But it supports the
Board’s decision to deny an agricultural exemption for the planned
occupancy of the house by Ms. Lang’s son and his family on the same
claimed basis as the prior tenant.
We agree with the district court that the reasonableness of the
Board’s May 2007 decision, like its June 2004 decision, was “open to a
fair difference of opinion.” We do not foreclose the possibility that there
can be more than one exempt farmhouse on a property. Yet, we cannot
find that the Board either misapplied the law or lacked substantial
evidence for its May 2007 determination.
One final point should be noted. The Langs’ construction of
various homes on what began as one property had the potential to cause
problems for third parties down the road. When a house has been
erected by taking advantage of an agricultural exemption, but then is
later sold to a person who is not engaged in agriculture, as occurred in
this case with respect to House #2, the house becomes a nonconforming
use, which limits the new owner’s ability to modify or, if necessary, to
rebuild the house.
IV. Conclusion.
Reviewing the record as a whole, we are impressed by the careful
attention devoted to this matter by dedicated public officials. From
listening to the recordings of the hearings, it is clear that the members of
the Board who cast votes on both sides took their duties very seriously
while trying to apply a statute that has some gray areas. As we and the
district court have said, the issues are fairly close; reasonable people can
reach different conclusions. In the end we are persuaded that
substantial evidence supports the Board’s June 2004 and May 2007
decisions.
22
WRITS ANNULLED; DECISION OF COURT OF APPEALS AND
DISTRICT COURT JUDGMENT AFFIRMED.
All justices concur except Wiggins, J., who dissents, and Hecht
and Appel, JJ., who take no part.
23
#11–0683, Lang v. Linn Cnty. Bd. of Adjustment
WIGGINS, Justice (dissenting).
I respectfully dissent. When applying the correct legal standard,
substantial evidence does not support the Linn County Board of
Adjustment’s findings.
The controlling statute is Iowa Code section 335.2, which
“prohibits counties from zoning agricultural land and structures.”
Goodell v. Humboldt County, 575 N.W.2d 486, 491 (Iowa 1998).
Identifying the proper standard to use for determining whether an
applicant is entitled to an agricultural exemption under section 335.2 is
a matter of statutory construction.
When construing a statute, we must determine legislative intent.
Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). We
ascertain “ ‘legislative intent from the words chosen by the legislature,’ ”
not by what the legislature should have or might have said. State v.
Dohlman, 725 N.W.2d 428, 431 (Iowa 2006) (quoting Auen, 679 N.W.2d
at 590). We “may not extend, enlarge or otherwise change the meaning
of a statute” under the guise of construction. Auen, 679 N.W.2d at 590.
Generally, we presume the legislature intended to change existing law
when it adopts an amendment. Cedar Rapids Steel Transp., Inc. v. Iowa
State Commerce Comm’n, 160 N.W.2d 825, 831–32 (Iowa 1968).
The general assembly adopted section 335.2 in 1947.7 See 1947
Iowa Acts ch. 184, § 2 (codified at Iowa Code § 358A.2 (1950)). The
statute originally read as follows:
No regulation or ordinance adopted under the provisions of
this act shall be construed to apply to land, farm houses,
7Section 335.2 was originally codified at section 358A.2. The code editor
transferred the section to its current location in 1993. All references to the section,
both before and after the transfer, will be to section 335.2.
24
farm barns, farm outbuildings or other buildings, structures,
or erections which are adapted, by reason of nature and
area, for use for agricultural purposes as a primary means of
livelihood, while so used.
Id. (emphasis added). Accordingly, the original version of the statute
contained a two-part test. The first part focused on the adaptation “by
reason of nature and area, for use for agricultural purposes.” The
second addressed whether the applicant for the exemption used the land
or structures adapted for agricultural purposes “as a primary means of
livelihood.” This second part required county zoning administrators to
“inquire into the sources and amounts of income of each applicant for
[an exemption].” Note, “Ill Blows the Wind that Profits Nobody”: Control
of Odors from Iowa Livestock-Confinement Facilities, 57 Iowa L. Rev. 451,
496 (1971) [hereinafter Ill Blows the Wind]. Of the two parts, apparently
the latter was more important. Id. (citing 1953–1954 Iowa Att’y Gen.
Biennial Rep. 96).
Although the bill containing the agricultural exemption did not
explain its purpose, a predecessor bill that also contained the exemption
asserted it was “ ‘intended as a protection for the farmer and his
investment in his land.’ ” Goodell, 575 N.W.2d at 494 (quoting H.F. 426,
1947 H.J. 587 (comments and explanation)). Accordingly, the exemption
“was a significant statement of the ‘freedom to farm.’ ” Neil D. Hamilton,
Freedom to Farm! Understanding the Agricultural Exemption to County
Zoning in Iowa, 31 Drake L. Rev. 565, 574 (1982) [hereinafter Hamilton].
One commentator has suggested the agricultural exemption “was a
political trade-off obtained by farm leaders before passage of county
zoning was possible,” because county zoning was “relatively new and
untested” in 1947. Id. at 573–74. That lead to fear of the impact local
zoning regulations would have on farming.
25
In 1963, the general assembly amended the relevant part of the
statute by changing the clause, “which are adapted, by reason of nature
and area, for use for agricultural purposes as a primary means of
livelihood, while so used,” to the present version. 1963 Iowa Acts ch.
218, § 2. Unchanged since the amendment, the relevant provision now
reads:
Except to the extent required to implement section
335.27, no ordinance adopted under this chapter applies to
land, farm houses, farm barns, farm outbuildings or other
buildings or structures which are primarily adapted, by
reason of nature and area, for use for agricultural purposes,
while so used.
Iowa Code § 335.2 (emphasis added). Thus, the general assembly made
two significant changes. First, it deleted the requirement that the
landowner use the land “as a primary means of livelihood.” Second, it
added “primarily” as a modifier.
House File 194, from which the amendment originated, makes no
mention of the reasoning behind the amendment.8 However, according
to former state Senator Seeley G. Lodwick, who had sponsored a similar
amendment in the senate, the amendment originated because there did
not appear to be a clear relationship between the sources of income of
8The amendment of section 335.2 accompanied the amendment of a statute
permitting any county with a population of more than thirty thousand people to adopt a
building code, but exempting “farm houses or other farm buildings which are primarily
adapted by reason of nature and area, for agricultural purposes.” See 1963 Iowa Acts
ch. 218, § 1. The accompanying house file reveals that the original language of the
section permitting counties to adopt their own building codes originally exempted “farm
houses, or other farm buildings which are adapted, by reason of nature and area, for
use for agricultural purposes as a primary means of livelihood.” H.F. 194, 60th G.A.,
Reg. Sess. available at http://contentdm.legis.state.ia.us/cdm4/search.php (1963).
House File 194, however, was amended prior to its adoption to remove the language
pertaining to “a primary means of livelihood” from the section pertaining to building
codes and section 335.2. See id. The explanation of House File 194 states the purpose
behind the section pertaining to county building codes but is silent as to the removal of
the “primary means of livelihood” language. See id.
26
the applicants for the exemption and the goals of zoning. Ill Blows the
Wind, 57 Iowa L. Rev. at 496 & n.264 (citing a telephone interview with
Senator Lodwick). Consequently, the general assembly removed the
more important part of the test—the section calling for an income
analysis—and modified the remainder by requiring the land or structures
to be primarily adapted for agricultural purposes. Id. at 496.
According to one scholar, “[t]he effect of the amendment was to
make the exemption available to smaller agricultural enterprises that
might not have met a primary means of livelihood test, thereby
broadening the exemption.” Hamilton, 31 Drake L. Rev. at 567; see also
Ill Blows the Wind, 57 Iowa L. Rev. at 497 (explaining that “subsequent to
the 1963 amendment, farm land and structures owned by corporations
or individuals deriving most of their income from sources other than the
land and structures in question, could be exempted from zoning”). This
explanation is consistent with the original intent of the statute, because
it interprets the amendment as expanding the “freedom to farm.”
Accordingly, following the 1963 amendment, the plain language of
section 335.2 makes it clear that an applicant for an agricultural
exemption must satisfy two conditions in order to receive the exemption.
First, the applicant must demonstrate that the “land, farm houses, farm
barns, farm outbuildings or other buildings or structures” are “primarily
adapted” for the asserted purpose. An applicant can demonstrate the
asserted purpose is so adapted based on the land’s “nature” and “area.”
As one commentator points out, the definition of an asserted purpose
could include agriculture, but nonetheless, the use could fail to be
primarily adapted for that agricultural purpose by its nature and area.
See Ill Blows the Wind, 57 Iowa L. Rev. at 497. Second, even if the land
or structures are primarily adapted for their asserted purpose, that
27
purpose must be an agricultural one. We previously determined
agriculture “is the art or science of cultivating the ground, including
harvesting of crops and rearing and management of livestock.”9
Thompson v. Hancock County, 539 N.W.2d 181, 183 (Iowa 1995). We
have also interpreted the phrase, “for use for agricultural purposes,” to
refer “to the functional aspects of buildings and other structures, existing
or proposed.” Kuehl v. Cass County, 555 N.W.2d 686, 688 (Iowa 1996).
I. Substantial Evidence Analysis.
A. Generally. When determining if substantial evidence exists to
support the Board’s findings, we view the evidence in the light most
favorable to the judgment when a party challenges a ruling for lack of
substantial evidence. Raper v. State, 688 N.W.2d 29, 36 (Iowa 2004).
When reasonable minds can accept the evidence as adequate to reach a
conclusion, we will find such evidence is substantial. Meincke v. Nw.
Bank & Trust Co., 756 N.W.2d 223, 227 (Iowa 2008). If the
reasonableness of the Board’s action is “ ‘open to a fair difference of
opinion, the court may not substitute its decision for that of the board.’ ”
Cyclone Sand & Gravel Co. v. Zoning Bd. of Adjustment, 351 N.W.2d 778,
783 (Iowa 1984) (citation omitted). However, on appeal, the Board’s
9As a side note, we have never imposed a requirement that agricultural activities
be for-profit, which seems to be something the Board and zoning administrator were
concerned with. Many of the old cases seem to presume that agricultural activities be
for profit, but section 335.2 does not require it. Although section 335.2 is entitled
“Farms exempt,” it does not define what a “farm” is for the purposes of the statute.
When a statutory term is undefined, we give it its common meaning. A “farm” may be
defined as “a tract of land devoted to agricultural purposes,” “a plot of land devoted to
the raising of animals and esp. domestic livestock,” or “a tract of water reserved for the
artificial cultivation of some aquatic life form.” Merriam-Webster’s Collegiate Dictionary
454 (11th ed. 2003). Similarly, a “farmer” may be defined as “a person who cultivates
land or crops or raises animals . . . or fish.” Id. These definitions do not contain any
reference to the derivation of income as a result of the activities or a requirement that
the items grown or animals raised be given to any third party. Accordingly, a farm
might simply be a tract of land containing crops or animals maintained solely for the
use, enjoyment, or consumption of the landowner.
28
application and conclusions of law are not binding upon us. See Raper,
688 N.W.2d at 36.
When the relevant evidence is both uncontradicted and reasonable
minds could not draw different inferences from the evidence, the
reviewing court can determine the facts as a matter of law. Armstrong v.
State of Iowa Bldgs. & Grounds, 382 N.W.2d 161, 165 (Iowa 1986). “As a
matter of law” means “no other factual finding could be reasonably
drawn from the evidentiary facts.” Johnson v. Bd. of Adjustment, 239
N.W.2d 873, 888 (Iowa 1976) (citation and internal quotation marks
omitted). If we find the record made before the Board establishes the
facts as a matter of law, it is unnecessary for us to remand the case to
the Board for additional fact finding. See U.S. Cellular Corp. v. Bd. of
Adjustment, 589 N.W.2d 712, 721 (Iowa 1999) (declining to remand to
the Board when there is no allegation the record contains a specific
factual error); Sahu v. Iowa Bd. of Med. Exam’rs, 537 N.W.2d 674, 677–
78 (Iowa 1995) (recognizing we are bound by the Board’s factual findings
“ ‘unless a contrary result is demanded as a matter of law’ ” (citation
omitted)); Armstrong, 382 N.W.2d at 165 (finding “a remand for agency
fact-finding is unnecessary when the facts are established as a matter of
law”).
B. The 6.52-acre Parcel. The zoning administrator found the
6.52-acre parcel did not qualify for the agricultural exemption, because
when the Langs transferred this property, the Langs reduced the parcel
to a roughly six-acre tract containing a pond and some berries. The
uncontroverted facts were that the zoning administrator recognized the
agricultural exemption for the prior 43.3-acre parcel was for the same
use. Thus, if the transferred parcel had still exceeded thirty-five acres,
29
the county’s zoning ordinance would presume the property to be a farm.
In other words, the basis for the denial was the size of the parcel.
We observe the review procedure in the Iowa Code: “The
concurring vote of three members of the board in the case of a five-
member board . . . shall be necessary to reverse any order, requirement,
decision, or determination of any such administrative official . . . .” Iowa
Code § 414.14 (emphasis added). The Board voted two-to-two on Lang’s
appeal. Thus, under the statute, the Board did not overturn the zoning
administrator’s decision with the required three-vote majority. Therefore,
the zoning administrator’s decision is the reason the Langs did not
receive the agricultural exemption on the 6.52-acre parcel.
The Langs argue the zoning administrator improperly interpreted
section 335.2 and applied a minimum-acreage test in denying the
exemption for the 6.52-acre parcel. No part of the statutory language of
section 335.2 or its predecessor has ever referred to a minimum-acreage
test in the sense that a tract of land must be a certain size in order to
qualify for the agricultural exemption. See Op. Iowa Att’y Gen. No. 97–1–
1(L) (Jan. 17, 1997), 1997 WL 994719, at *7 (concluding a county may
not utilize an objective minimum-acreage test to determine whether land
is exempt under section 335.2, but admitting that the size of the farm
may be a relevant factor); 1954 Op. Iowa Att’y Gen. 96, 96 (concluding
qualification for the agricultural exemption “is determined by the facts as
to whether the land is used for agricultural purposes as a primary means
of livelihood and not by the area of land with certain boundaries
designated as a farm”); see also County of Lake v. Cushman, 353 N.E.2d
399, 401 (Ill. App. Ct. 1976) (concluding the Illinois legislature intended
its agricultural exemption to be based on the use of the land, not the size
of the land); Hamilton, 31 Drake L. Rev. at 575 (arguing Cushman more
30
adequately carried out the intent of the exemption than our decision in
Farmegg Prods., Inc. v. Humboldt County, 190 N.W.2d 454, 459 (Iowa
1971) (rejecting a claim that a proposed facility for raising chicks was
entitled to the farm exemption, because it would be “organized and
carried on as an independent productive activity and not as part of an
agricultural function”), disapproved by Kuehl, 555 N.W.2d at 689.
By applying a minimum-acreage test, the zoning administrator
incorrectly interpreted section 335.2. The uncontroverted facts show
that if the parcel was greater than thirty-five acres and used by the
Langs for the same purpose as the 6.52-acre parcel, the agricultural
exemption provided by section 335.2 would apply. As the Board found,
the Langs are farmers growing trees, berries, asparagus, grapes,
tomatoes, and fish.10 The government enrolled the Langs in programs
supporting these agricultural purposes. The United States Department
of Agriculture considered the property to be farm ground for federal farm
programs. Additionally, the government enrolled the pond in a farm fish
program, and the state forester approved a stewardship plan under
which the Langs planted more than five thousand trees on the property.
The county treasurer, county assessor, Iowa Department of Agriculture,
Iowa Department of Natural Resources, Iowa Department of Revenue,
and United States Farm Services Agency provided other farm approvals.
10The Board also recognized the property contained the following crops for
commercial production:
1. Trees, 4 to 5 acres, 80% for commercial production.
2. Raspberries, 0.1 acres, 10% for commercial production.
3. Blackberries, 0.1 acres, 10% for commercial production.
4. Asparagus, apples, 1 acre, 75% for commercial production.
5. Grapes, tomatoes, 0.2 acres, 15% for commercial production.
31
Therefore, as a matter of law, I would find the 6.52-acre parcel
qualifies for the agricultural exemption. There is no need for us to
remand the case to the Board for further findings of fact.
C. House #3. The zoning administrator denied the exemption for
house #3 for the reason that one of the previous tenants, who the zoning
administrator recognized as a farmhand, spent less than half his time on
agricultural duties and therefore, was not primarily engaged in
agriculture. The Board voted to uphold the zoning administrator’s denial
of the exemption. The basis for the Board’s decision was the same as the
zoning administrator’s—the tenant did not spend enough time doing
farm work; therefore, he was not primarily engaged in agriculture.
A “primarily engaged in agriculture” test seems to imply the
occupants of the house either spend all of their time carrying out
agricultural activities or engage in the agricultural activities as their
primary source of income. As the legislative history reveals, the general
assembly removed the latter implication from the statute in 1963, see
1963 Iowa Acts ch. 218, § 2, and the former implication would be
contrary to the legislative intent behind section 335.2.
Applying the statute as we construe it in this opinion, the Langs
must demonstrate the “land, farm houses, farm barns, farm
outbuildings, or other buildings or structures” are “primarily adapted” for
the asserted purpose. Iowa Code § 335.2. Second, even if the Langs can
show house #3 is “primarily adapted” for its asserted purpose, that
purpose must be an agricultural one. Id. An agricultural purpose
involves the art or science of cultivating the ground, including harvesting
of crops and rearing and management of livestock.
Thus, the proper inquiry is whether the farmhouse is “primarily
adapted, by reason of nature and area, for use for agricultural purposes.”
32
Id. The Iowa Attorney General has confronted this issue before and
determined the proper inquiry is whether the occupants of the house are
“engaged in agriculture on the land where the houses are located.” Op.
Iowa Att’y Gen. No. 97–1–1, at *5. The Board recognized this as the
appropriate test. I agree with the conclusion of the Board and the
attorney general.
The county gave permission to the Langs to build house #3 so the
person or persons residing there could help with the farm chores. The
Langs built the house for that very purpose. Thus, the record
establishes, as a matter of law, that the Langs built the house to be
primarily adapted for agricultural purposes. The only issue is whether
the occupants of the house are primarily engaged in agriculture.
The Code does not require a person who engages in agriculture on a
piece of property to do so full time to qualify for the agricultural
exemption. If that were the case, the Code would not apply the
exemption to a person who farms a piece of property, but has another job
as his or her primary source of income.
The uncontroverted evidence shows the asserted purpose for
house #3 is to provide a residence for someone helping to farm the
property. Prior to this proceeding, the county recognized the prior tenant
of the house was complying with the statute by engaging in agriculture
on the land for forty-four percent of a normal workweek.11 The
11The previous lease agreement required the former tenants to contribute at
least 24.5 hours per week to the agricultural operation. Although the previous tenants’
work log did not specifically allocate hours spent working on the agricultural operation
to specific tasks, the Board allocated the hours as follows based on the work log’s
descriptions:
1. Case the tree farm: 313.5 hours (20%).
2. Special projects help: 505.5 hours (31%).
3. Take care of sheep: 87 hours (5%).
4. Assist in the management of fish production: 206.5 hours (13%).
33
uncontroverted evidence further shows the Langs’ lease requires the
current tenants of house #3 to engage in agriculture on the land where
the house is located—just like the prior tenants. The only difference is
that the prior tenants did not have an outside source of income, while
the prospective tenants may have such separate income. Although the
prospective tenants may have another source of income or employment,
their lease nonetheless requires them to engage in the agricultural
operation of the land. The evidence shows this involvement is 17.7 hours
per week, or forty-four percent of an average workweek. As a matter of
law, I would find this level of activity satisfies section 335.2’s
requirement that the prospective tenants engage in agriculture on the
land where the house is located.
In summary, this is another instance where the government
improperly intrudes on the use of an individual’s property. The 6.52-
acre parcel contained between four and five acres of nontraditional crops
that the zoning authorities did not deem as agricultural, despite the fact
the Iowa Department of Agriculture and the United States Department of
Agriculture recognized the parcel as qualifying for agricultural programs.
Had the Langs planted this acreage in corn or soybeans, there is no
doubt in my mind the zoning authorities would allow the agricultural
exemption. Furthermore, the undisputed evidence shows the time spent
by the occupant of house #3 tending the nontraditional crops totals
approximately forty percent of a normal workweek. Under the prior
district court ruling, this was sufficient time for the house to qualify for
the exemption. By finding substantial evidence supports the zoning
authorities’ decision, the majority is empowering these authorities to
______________________________________
5. Other (tasks that could not be clearly assigned to any of the above
categories): 497.5 hours (31%).
34
deny the Langs the lawful use of their land and receive the benefits
therefrom, including the agricultural exemption. Accordingly, I would
reverse the decision of the district court affirming the Board’s denial.