Petition for Writ of Certiorari — Fitzgarrald v. City of Iowa City

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QAFICE OF THE CLERK |

IN THE }

Supreme Cot of the Trited States

OCTOBER TERM, 1992

DEAN A. FITZGARRALD and PHYLLIS FITZGARRALD,

Petitioners,

THE CITY OF IOWA City, IOWA, and

JOHNSON COUNTY, IOWA,

Respondents.

Petition for Writ of Certiorari to the

Supreme Court of Iowa

PETITION FOR WRIT OF CERTIORARI

WILLIAM L. MEARDON

Counsel of Record

MEARDON, SUEPPEL, DOWNER

& HAYES P.L.C.

122 South Linn Street

Iowa City, Iowa 52240

(319) 338-9222

WILSON - Ergs PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

Whether Petitioner generated a fact question con-

cerning her claim that flights directly on her property

constitute a taking which requires just compensation

under the fifth and fourteenth amendments to the

the United States Constitution.

Whether Petitioner’s Application for Limited Remand,

concerning a possible prohibition against penetration

of approach slopes, should have been granted to permit

Petitioner to develop evidence on her claim that the

Airport zoning ordinance constitutes a regulatory tak-

ing which requires just compensation under the fifth

and fourteenth amendments to the United States

Constitution.

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TABLE OF CONTENTS

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Page

Fitzgarrald v. City of lowa City, No. 141 90-1845,

slip op. (Iowa Nov. 25, 1992) 12, 14, 16, 17

Fitzgarrald v. City of Iowa City, No. 141/90-1845.

slip. op. (lowa June 17, 1992) 10, 11

Fitzgarrald v. C ty of Lowa City, No. 1-436/90-1845

slip op. (lowa Ct. App. Dec. 31, 1991) 9,14, 15

Fitzgarrald v. City of lowa City, No. 50400, siip op.

(Iowa Dist. Ct. Nov. 1, 1990)

Lucas v. South Carolina Coastal ( OUMEU, mnie TJS,

—., 112 S.Ct. 2886 (1992) 14, 15, 16

Nolan v. California Coastal Commiss On, 183 U.S.

825 (1987) 16

Pe nn Ce nt. Transp. #3 os City of Ne ww York, 438

U.S. 104 (1976) 13

United States v. Causby, 320 U.S. 756 (1940) 14

Williamson Planni lq Comm'n v. Ha milton Banks.

173 U.S. 172 (1985) 9

ihé o: Re gqulatio; a and Ord nances:

U.S. CONST. amend. V 2

U.S. CONST. amend. XXIV .

14 C.F.R. Part 77 (1989) 1

lowA CITY, MUNICIPAL CopE Article V. Section

1(d) (3) (1984) 15.6

lowA CITY, MUNICIPAL CopE Article V. Section

1-75(d)(3) (1990) 1, 5, 6

IN THE

Supreme Court of the United States

OC: OBER TERM, 1992

No.

DEAN A. FITZGARRALD and PHYLLIS FITZGARRALD,

: Petitioners,

THE City oF IOWA City, IowA, and

JOHNSON COUNTY, IOWA,

Respondents.

Petition for Writ of Certiorari to the

Supreme Court of Iowa

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The lowa Supreme Court issued its final opinion in

this case on November 25, 1992, a copy of which appears

in the Appendix to this Petition at page la. The Novem-

ber 25, 1992, opinion has not yet been reported.

The lowa Supreme Court issued its first opinion in

this case on June 17, 1992, a copy of which appears in

the Appendix to this Petition at page 59a. The June 17,

1992, opinion has not been reported.

The Iowa Court of Appeals issued its opinion in this

case on December 31, 1991, a copy of which appears in

the Appendix to this Petition at page 49a. The December

31, 1991, opinion has not been reported.

The Iowa District Court issued its opinion in this case

on November 1, 1990, a copy of which appears in the

Appendix to this Petition at page 42a. The November 1,

1990, opinion has not been reported.

JURISDICTION

The judgment of the Iowa Supreme Court was entered

on November 25, 1992. A timely Petition for Rehearing

was filed, and the Iowa Supreme Court denied the Peti-

tion for Rehearing on December 23, 1992. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1257 (a).

CONSTITUTIONS AND STATUTES INVOLVED

This case involves the fifth and fourteenth amendments

to the United States Constitution which respectively

provide:

fifth amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia when

in actual service in time of War or public danger ;

nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself nor deprived of life, liberty, or prop-

erty, witnout due process of law; nor shall private

property be taken for public use without just com-

pensation.

fourteenth amendment

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof.

are citizens of the United States and of the State

Wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or immu-

nities of the citizens of the United States; nor shall

any State deprive any person of life, liberty, or prop-

erty without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of the

laws.

‘

Section 2. Representatives shall be apportioned

amony the several Stutes according to their respec-

tive numbers, counting the whole number of persons

in each State, excluding Indians not taxed. But when

the right to vote at any election for the choice of elec-

tors for President and Vice President of the United

States, Representatives in Congress, the Executive ‘

and Judicial Officers of a State, or the meinbers of

the Legislature thereof, is denied to any of the male

inhabitants of such State, being twenty-one years of

age, and citizens of the United States, or in any way

abridged, except for participation in rebellion, or

other crime, the basis of representation therein shall

be reduced in the proportion to which the number of

such male citizens shall bear to the whole number of

mule citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Repre-

sentative in Congress, or elector of President and

Vice President, or hold any office, civil or military,

under the United States, or under any State, who,

having previously taken an oath, as a member of

Congress, or as an officer of the United States, or as

a member of any State Legislature or as an execu-

tive or judicial officer of any State, to support the

Constitution of the United States, shall have engaged

in insurrection or rebellion against the same, or given

aid or comfort to the enemies thereof. But Congress

may by au vote of two-thirds of each House, remove

such disability.

Section 4. The validity of the public debt of the

United States, authorized by law, including debts in-

curred for payment of pensions and bounties for

service in suppressing insurrection and_ rebellion,

shall not be questioned. But neither the United

- States nor any State shall assume or pay any debt

oy obligation incurred in aid of insurrection or re-

bellion against the United States, or any claim for

the loss of emancipation of any slave; but all such

debts, obligations and claims shall be held illegal and

void.

EE EE

Section 5. The Congress shall have power to enforce,

by appropriate legislation, the provisions of this

Article.

This case also involves the following regulations and

municipal zoning ordinances:

14 C.F.R. Part 77 (1989), a copy of which is at-

tached to the Appendix to this Petition at page 7 16a.

IOWA CITY, IOWA, MUNICIPAL CODE, sections

84-3211, 90-3446, copies of which are attached to

the Appendix of this Petition at page 74a.

STATEMENT OF THE CASE

Petitioners (hereinafter “Fitzgarrald”) own approxi-

mately ten (10) acres of land adjacent to the Iowa City

Municipal Airport. Fitzgarrald purchased her land in

the 1940’s and built a house thereon. When Fitzgarrald

purchased the property, the Iowa City airport was oper-

ating at its current location. Fitzgarrald also owns and

operates a mobile home park on the property. The mobile

home park has been a non-conforming use since respond-

ent Johnson County (“the County”) zoned Fitzgarrald’s

land residential in 1960. Fitzgarrald’s property is located

near the end of one of the airport’s runways (runway

6-24).

In November 1984 respondent City of Iowa City (“the

City”) decided to expand airport operations and extend

runway 6-24. To help facilitate airport expansion, the

City and the County in 1984 jointly adopted a zoning

ordinance which enacted height and use restrictions on

property surrounding the airport. The ordinance pre-

vented structures from penetrating an “Approach Overlay

Zone,” which is a plane beginning 200 feet from the end

of the runway and extending skyward at a slope of thirty-

four horizontal feet (one vertical foot (34.1 slope) ).

With the initially proposed 1060-foot extension of runway

6-24, the appropriate “approach slope” penetrated Fitz-

garrald’s home and some of their ground. Structures

which already penetrated the approach slope or otherwise

failed to conform to the ordinance were permitted to re-

main unaltered as nonconforming uses.

In August, 1986 the City initiated condemnation pro-

ceedings to acquire 1.18 acres of Fitzgarrald’s property

for the runway extension. The award in that proceeding

is a separate matter on appeal. Fitzgarrald did, however,

initiate a mandamus action to force the City to acquire

an avigation easement over her property. In October,

1987 the City initiated such an action, but the action was

voided by the District Court because the City could not

identify what it purported to condemn. No further ac-

tion has been taken by the City to acquire an avigation

easement over Fitzgarrald’s land. ;

To date runway 6-24 has been extended 335 feet in-

stead of the initially-proposed 1000 feet, and the 1984

joint City-County ordinance was amended accordingly.

Under the amended ordinance, Fitzgarrald’s house still

penetrates 6.9 feet into the approach slope. Fitzgarrald’s

use of her property remains unchanged as a nonconform-

ing use. The ordinance, even as amended, places the ma-

jority of Fitzgarrald’s property in a “clear overlay zone.”

Along with height restrictions, the “clear zone” has the

following use restrictions:

Use limitations. No use shall be permitted in the

OCL zone in which there is connected therewith a

building which according to the 1982 edition of Uni-

form Building Code, has an occupancy rating of 50

square feet of floor area per person or less. In ad-

dition, the following uses shall net be permitted:

(a) Campgrounds

(b) Fairgrounds

(d) Motels and hotels

(e) Nursing and custodial home

(fi Residential uses

(g) Restaurants and similar eating and drinking

establishments

(h) Sanitary landfills

(1) Schools, including nurseries, pre-kindergartens

and kindergartens

(j! Stadiums

(k) Storage of fuel or other hazardous materials

(1) Theaters

lowa City, Iowa, MUNICIPAL CopE Article V, Section

4-75(d) (3) (1990) (app. p. 105a).

Although exceptions and variances from the use limita-

tions are allegedly permitted, while the case was on ap-

peal, Fitzgarrald obtained a letter from the Federal Avia-

tion Administration (“FAA”) concerning its position on

development which penetrates the approach slope. Fitz-

garrald filed an Application for Limited Remand based

on the FAA letter, and this will be discussed later.

Fitzgarrald, on December 15, 1986, initiated this man-

damus suit to force the City to institute condemnation

proceedings concerning the land. F itzgarrald amended

the petition on April 1, 1988 to allege that a taking, in

violation of the fifth amendment to the United States

Constitution and Article I, Section 18 of the lowa Consti-

tution, had occurred by virtue of the imposition of the

ordinance extension of runway 6-24 (regulatory taking)

and use of the airport (physical invasion.) (Plaintiff's

Amended Petition of 4/1/88 (app. at 13a) ).

Trial was held by the district court on August 7 and

&, 1990. Fitzgarrald presented evidence concerning the

effect of airplanes flying directly over the property and

the diminished value of her property due to the enact-

ment of the ordinance.

Fitzgarrald testified that subsequent to the extension

of runway 6-24, the noise from the air traffic increased

and mobile home park tenants therefore left. Fitzgarrald

related one incident where a large freight plane landing

flew so low that the pilot could be seen from beneath the

awning of a second-floor window of her home. Fitz-

garrald also testified about how her house occasionally

shook and vibrated when aircraft landed on runway 6-24.

Bob Michelson, an engineer, testified concerning the

economic impact of the City-County ordinance. Michel-

son indicated that the ordinance had a substantial adverse

impact on the value of Fitzgarrald’s land. Michelson did

not relate an exact dollar figure concerning the impact

of the ordinance.

The City and County presented evidence concerning the

use of runway 6-24. Various pilots testified that they

used the runway less and ignored recommended flight pat-

terns which would go directly over Fitzgarrald’s prop-

erty. The pilot’s agreed, however, that after the runway

was extended, landing airplanes would fly closer to the

Fitzgarrald property.

The City and County also argued that Fitzgarrald’s

claim was premature since variances and exceptions to

use and height restrictions could be obtained, and Fitz-

garrald had presented no development plan. Therefore,

according to the City and County, Fitzgarrald’s claim

was not ripe for determination. The evidence shows that

portions of the ground on the Fitzgarrald property pene-

trate the approach slope mentioned earlier. On other

portions of Fitzgarrald’s land there exists between 8 and

30 feet of space before penetration of the approach slope.

The court entered its ruling on November 1, 1990, de-

nied Fitzgarrald a Writ of Mandamus and held that no

“taking” occurred. Concerning Fitzgarrald’s physical

invasion taking claim, the court found that the traffic over

the Fitzgarrald property did not increase due to the ex-

tension of the runway. Fitzgarrald v. City of Iowa City,

No. 50400, slip op. at 9-10 (Dist. Ct. Iowa. Nov. 1, 1990)

(app. at 42a). The court noted that the prevailing winds

in Johnson County were from the northwest, and runway

6-24 is not used under such conditions. Jd. at 6. The

court did not mention Fitzgarrald’s testimony concerning

tenants, the shaking of her house, or seeing a pilot from

her home.

The court also held that no regulatory taking occurred.

The court based its decision on seven reasons:

(1) The use Fitzgarrald made of the property both

before and after the enactment of the ordinance

is the same.

(2) The airport was in existence when Fitzgarrald

purchased the property.

(3) Fitzgarrald has not contemplated a change in

the use of the property.

(4) The FAA controls the uses to which the property

may be put.

(>) The City and the County merely conformed to

FAA regulations and the airport ordinance is

no more restrictive than federal regulations.

(6) Variances and exceptions to the federal and mu-

nicipality restrictions are possible.

(7) There has been no greater imposition on the

Fitzgarrald property by the 355 foot extension

of the runway.

Id, at 10. Based on the above, the court denied the relief

requested by Fitzgarrald.

Fitzgarrald filed a timely Notice of Appeal on Novem-

ber 30, 1990. Fitzgarrald appealed the district court’s

holding that no taking had occurred in violation of Fitz-

garrald’s fifth and fourteenth amendment right to just

compensation. The Iowa Supreme Court transferred the

case to the Iowa Court of Appeals. The court of appeals

entered its decision on December 31, 1991 and denied re-

lief to Fitzgarrald, although on grounds different from

those cited by the district court.

On de novo review, the court of appeals found that the

airport ordinance constituted a taking. Fitzgarrald v.

City of Iowa City, No. 1-486/90-1845, slip op. at 9 (Iowa

Ct. App. Dec. 31, 1991) (app. p. 49a). The court based

its decision on two grounds. First, the court noted that

“extensive and repeated low flying caused annoyance to

the plaintiffs.” Jd. at 8. Obviously the court believed a

physical invasion of plaintiff's property had occurred.

Second, the court noted that the land was in uw prime loca-

tion for development, and such development would be

substantially curtailed by the height restriction. Jd. The

court stated that “{t]he regulation is so enerous that it

has the same effect as an appropriation of the property

through eminent domain or physical possession. Jd. at 9

(citing Williamson Planning Comm’n v. Hamilton Bank,

173 U.S. 172, 186 (1985)). The court held, however,

that Fitzgarrald was not entitled to a Writ of Mandamus.

Id, 9-10, The reason given by the court was that Fitz-

garrald continued to use the property as before and had

not applied for a variance; the matter therefore, accord-

ing to the court was not ripe for determination. /d.

litzgarrald timely applied for further review to the Iowa

Supreme Court on the failure of the court of appeals to

issue a Writ of Mandamus despite finding a taking, and

the City and County timely cross-appealed on the court of

appeal’s holding that the ordinance and physical invasion

of Fitzgarrald’s property constituted a taking. By order

dated February 28, 1992, the Iowa Supreme Court granted

both Fitzgarrald’s and the City/County’s Applications for

Further Review. Fitzgarrald v. City of Iowa City, No.

90-1845 (Iowa Feb. 28, 1992) (order granting applica-

tion for further review) (app. at 57a). Argument be-

fore the Iowa Supreme Court was set for April 6, 1992.

Id.

On March 31, 1992 Fitzgarrald filed an Application for

Limited Remand with the Iowa Supreme Court. The Ap-

plication was filed after Fitzgarrald’s counsel received a

letter on March 24, 1992 from FAA officials concerning

its (FAA) position on proposed structures which would

penetrate the 34.1 approach slope. A copy of the Applica-

tion For Limited Remand is attached to the appendix at

page 147a. Fitzgarrald contended that the letter estab-

lished an FAA policy prohibiting any penetration of the

34.1 approach slope. Fitzgarrald asserted that the let-

ter showed that the FAA would not approve any pro-

posed development which penetrated the 34.1 approach

slope, and therefore the various and special exception

portions of the City/County ordinance were meaningless.

By order dated April 3, 1992, the Iowa Supreme Court

agreed to hear argument on the Application for Limited

Remand with the argument on appeal. Fitzgarrald v.

City of lowa City, No. 90-1845 (Iowa April 3, 1992)

(order allowing oral argument) (app. at 58a).

The Iowa Supreme Court entered its first of two rul-

ings on June 17, 1992. The court vacated the Court of

Appeals decision and affirmed the district court. Fitz-

garrald v. Iowa City, No. 141 90-1845, slip op. at 15

‘lowa June 17, 1992 (app. p. 99a). The court held

that no regulatory taking occurred by virtue of the enact-

ment of the ordinance because most of the uses proscribed

by the ordinance had been proscribed by previous zoning

ordinances and FAA regulations. Jd. at 8-11. The court

noted that Fitzgarrald made the same use of her prop-

erty before and after the enactment of the ordinance. The

court also found significance in the fact that the under-

lying county ordinance classified Fitzgarrald’s property

as residential, and according to the court. Fitzgarrald

could not show a reasonable probability of getting the

property rezoned. Jd. Accordingly, the court found that

Fitzgarrald’s investment-backed expectation for the use

of the land had not been frustrated, concluded that no

regulatory taking occurred and affirmed the district court

on this issue. Jd.

The court next considered the physical invasion claim.

The court noted that a mandamus court need only deter-

mine whether a factual issue exists that would permit

a compensation commission or court on appeal to find an

intrusion that produced a measurable decrease in the

property’s market value. Jd. at 11-15. The court also

noted that, if any injury to market value is shown, there

is no de minimus rule. Jd. The court then held that Fitz-

garrald’s evidence on the physical invasion claim was in-

sufficient to generate a fact question about whether the

overflying aircraft produced a measurable decrease in

property value. /d.

The court noted that the record contained no evidence

of either the frequency or altitudes of planes flying over

Fitzgarrald’s land. Jd. The court then stated that the

City and County presented evidence that planes were

taking off and landing with the same frequency or alti-

tude before and after the runway extension. /d. The

court did note the testimony of two pilots who indicated

that planes fly lower over Fitzgarrald’s property due to

the runway extension. /d.

The court also held that Fitzgarrald’s testimony was

not sufficient to generate a fact question about a decrease

in value due to low-flying aircraft. Jd. Although Fitz-

garrald testified that tenants left her mobile home park

after the runway was extended, the court pointed to the

fact that Fitzgarrald had no personal knowledge as to

the reason why. Jd. The court also stated that Fitz-

garrald’s loss-of-value evidence was directed only at the

regulatory taking claim and that no witness testified that

overflying aircraft adversely affected the market value of

Fitzgarrald’s property. Jd. at 15. The court concluded

that no physical invasion occurred and affirmed the dis-

trict court on this issue. Jd. The court did not address

Fitzgarrald’s Application for Limited Remand in its

June 17, 1992 ruling.

On or about June 30, 1992 Fitzgarrald filed a timely

Petition for Rehearing in the Iowa Supreme Court. Fitz-

garrald claimed that the court failed to address the pend-

ing Application for Limited Remand concerning the FAA

letter about development which would penetrate the 34.1

approach slope. Fitzgarrald pointed out that, due to the

height restrictions associated with the 34.1 appreach

slope and a possible FAA policy against any penetration

thereof, the court should remand the case to permit the

presentation of evidence about the letter from the FAA

attached to the Application for Limited Remand. Fitz-

garrald pointed out that if the letter means what it says

(that the FAA would not permit penetration into the 34.1

approach slope), Fizgarrald could not develop her prop-

erty even in conformance with the pre-existing County

zoning ordinance (which zoned the Fitzgarrald property

residential), and therefore a regulatory taking oceurred.

Fitzgarrald also pointed out that residential development

is prohibited in the clear zone. By order dated July 17,

1992, the Iowa Supreme Court required the City and

County to respond to the Petition for Rehearing. On

October 2, 1992 the Iowa Supreme Court granted Fitz-

garrald’s Petition for Rehearing on all issues submitted

to the court of appeals and withdrew its prior opinion

dated June 17, 1992. Fitzgarrald v. City of Iowa City,

No. 90-1845 (Iowa Oct. 2, 1992) (order granting peti-

tion for rehearing) (app. at 71a).

The Iowa Supreme Court issued its final opinion on

November 25, 1992, again affirming the district court and

vacating the decision of the court of appeals. Fitzgarrald

v. City of Iowa City, No. 141/90-1845. slip op. at 16

(Iowa Nov. 25, 1992) (app. p. la). The court again

stated that Fitzgarrald failed to generate a fact question

concerning the physical invasion claim and held that the

court of appeals erred in concluding to the contrary. Zd.

at 12. Concerning the regulatory taking claim, the

court, as in its previous opinion, noted that the use of the

property had not changed, and the diminution of market

value by virtue of the ordinance was insufficient to sup-

port a finding that a regulatory taking occurred. Jd. at

12-16. Again, the court did not address Fitzgarrald’s

Application for Limited Remand.

On or about December 9, 1992 Fitzgarrald filed a sec-

ond Petition for Rehearing based on the court’s failure

te address the Application for Limited Remand. The

court denied Fitzearrald’s Petition by order dated De-

cember 23, 1992 (app. at 73a).

REASONS FOR GRANTING THE WRIT

This case involves Fitzgarrald’s right to just compen-

sation arising by virtue of the imposition of an airport

ordinance, the extension of an airport runway and the

use associated therewith. As previously stated and con-

cerning Fitzgarrald’s physical invasion claim, the Iowa

Supreme Court held that Fitzgarrald failed to generate a

fact question about whether the flights directly over her

property could rise to the leve of a taking. The court also

denied Fitzgarrald’s Application for Limited Remand to

develop evidence concerning whether the FAA would un-

der any circumstances permit penetration of the desig-

nated approach slope. In making these determinations,

the Iowa Supreme Court interpreted federal law in a

manner inconsistent with prior decsions of this Court.

Since the City and the County are currently debating

further expansion of the airport in question, and numer-

ous property owners in Iowa City and Johnson County,

Iowa will be affected, this Court should grant certiorari

to provide guidance as to the threshold of what consti-

tutes a physical invasion from overhead flights. This

Court should also grant certiorari to permit Fitzgarrald

to determine the FAA’s position concerning penetration

of the designated approach slope. If the Court does so,

the rights of property owners around the airport will be

more clearly defined and recognized.

PHYSICAL INVASION

This Court has long held that a physical invasion by

governmental authorities is a taking. F.g., Penn. Cent.

Transp. Co. v. City of New York, 438 U.S. 104, 124

(1978). This Court has also recognized that the noise

| OO er

and vibration associated with overfiying aircraft may

amount to a physical invasion. E.g., United States v.

Causby, 320 U.S. 256, 261 (1946). When a physical

invasion is shown, “no matter how small the intrusion,

and no matter how weighty the public purpose behind it,

we have required compensation.” Lucas v. South Caro-

lina Coastal Council, ——— US. » 212 S.Ct.

2886, 2893 (1992). If a physical invasion is demon-

strated, there is no de minimus rule. Jd. By holding that

Fitzgarrald failed to generate a fact question on the

physical invasion claim, the Iowa Supreme Court held

contrary to the above-cited precedent.

As previously stated, Fitzgarrald testified that subse-

quent to the extension of the runway, the noise from the

air traffic increased and mobile home park tenants left.

Fitzgarrald testified that her house occasionally shook

when aircraft landed on the runway. Although the City

and County presented evidence that planes were taking

off and landing with the same frequency and altitude

before and after the runway extension, two pilots indi-

cated that, due to the extension of the runway, aircraft

passed over Fitzgarrald’s land at lower attitudes. The

result from lower overhead flights is obvious (increased

noise and vibration).

Despite the above testimony, the Iowa Supreme Court

held that Fitzearrald failed to generate a fact question

on her physical invasion claim. Most significant to the

Court, apparently, was Fitzgarrald’s failure to have a

witness testify that overflying aircraft adversely affected

the market value of her property. See Fitzgarrald v. City

of Iowa City, No. 141/90-1845, slip op. at 12 (Iowa

Nov. 25, 1992) (app. at la). The court also noted

that Fitzgarrald did not fix the frequency or regularity

of overhead flights and could not Say with certainty why

tenants left after the runway was extended. Jd. Paren-

thetically, Fitzgarrald notes that the evidence apparently

was sufficient to convince the Iowa Court of Appeals to

hold that a physical invasion occurred. Fitzgarrald vy.

City of Iowa City, No. 1-436,/90-1845, slip op. at 9 (Iowa

Ct. App. Dee. 31, 1991) (app. at 49a).

Under the takings jurisprudence from this Court,

Fitzgarrald did generate a fact question. As the lowa

Supreme Court noted, Fitzgarrald was not required to

try her takings case before the mandamus court. Fitz-

garrald’s testimony concerning overhead flights establishes

a physical invasion. The frequency and regularity thereof

are matters to be heard in a condemnation proceeding

and not the mandamus court. And while no witness

testified that direct overhead flights caused a decrease in

market value of Fitzgarrald’s property, it stretches real-

ity to argue that overhead flights could have any other

effect. Most importantly, however, if a physical invasion

is shown, there is no de minimus rule. Lucas, USS.

—-, 112 S.Ct. at 2893. Accordingly, since Fitzgarrald’s

testimony showed that overhead flights affected her prop-

erty, the Iowa Supreme Court should have held that she

generated a fact question about a physical invasion and

granted her a writ of mandamus to determine the extent

of the taking. The reasons the lowa Supreme Court used

to hold that Fitzgarrald failed to generate a fact ques-

tion should not have been considered in the mandamus

action but rather in a subsequent condemnation pro-

ceeding.

APPLICATION FOR LIMITED REMAND

Fitzgarrald filed an Application for Limited Remand

(app. p. 147a) prior to the April 6, 1992 argument before

the Iowa Supreme Court. Fitzgarrald argued that new

evidence, discovered after the Iowa Court of Appeals de-

cision, existed concerning the FAA’s position on permit-

ting development which would penetrate the designated

approach slope. Based on the new evidence, Fitzgarrald

contends that the FAA will not permit new residential

development permitted by existing county zoning which

penetrates the approach slope; if true, this evidence would

nullify the City and County’s argument that Fitzgarrald’s

, EEE ee

suit was premature, since Mitzgarrald would not be able

to obtain a variance or special exception and penetrate

the approach slope with potential development. The Iowa

Supreme Court should have addressed Fitzgarrald’s Ap-

plication, and Fitzgarrald asks this Court to direct. the

lowa Supreme Court to do so.

This Court recognizes that. where regulation deprives

all economically beneficial or productive use of land, a

taking occurs, Lucas, ——~ U.S, - —, 112 8S. Ct. at 2893:

Nollan »v. California Coastal Commission, 4823 1.S. 825,

834 (1987). The Iown Supreme Court found it signifi-

cant that Fitzgerrald still used her land in the same

way before and after the imposition of the airport ordi-

nance. Mitzgarrald v. City of Lowa City, No. 14190-1845.

slip op. at 14 (app. at la). While Fitzgerrald certainly

still operates a mobile home park (the mobile home park

is 6.35 aeres) as a nonconforming use, the remaining 2.46

acres (iitzgarrald’s land is a 8.82 acre tract after con-

demnation of the 1.18 acres mentioned earlier) have no

economic value if the FAA will not permit penetration

of the approach slope. The evidence shows that the gap

between Fitzgarrald’s land and the approach slope ranges

from & to 30 feet. Given the lack of space between the

ground and the approach slope, any proposed develop-

ment by Fitzgarrald would penetrate the approach slope.

In other words, if the FAA will not permit penetration

of the approach slope as Fitzgarrald contends is shown by

the letter attached to her Application, Fitzgarrald can-

not develop her land in aecordance with the underlying

residential zoning classification. The FAA’s policy (ae-

cording to its letter) eliminates the ‘ariance and special

exception sections of the ordinance since the FAA will

deny any variance or special exception which penetrates

the approach slope. The ordinance, coupled with what

Fitzgarrald contends to be FAA stated policy, deprives

Fitzgarrald the economic use of approximately 2.46

acres of her land. The Iowa Supreme Court should have

granted Fitzgarrald’s Application for Limited Remand

to permit Fitzgarrald to determine FAA policy about

penetration of the approach slope. Fitzgarrald asks this

court to grant certiroari and direct the lowa Supreme

Court to do so.

CONCLUSION

Petitioner prays that a Writ of Certiorari issue from

this honorable Court to review the judgment of the Iowa

supreme Court in Fitzgarrald v. City of Lowa City, No.

141/90-1845, slip op. (Iowa Nov. 25, 1992) (app. at

la). In the event that the Petition is granted, peti-

tioner prays that the judgment of the court below be

reversed, that the cause be remanded, and that the court

below be directed to issue the Writ of Mandamus as

prayed for in the petition.

Respectfully submitted,

WILLIAM L. MEARDON

Counsel of Record

MEARDON, SUEPPEL, DOWNER

& HAYES P.L.C.

122 South Linn Street

lowa City, lowa 52240

(319) 338-9222

APPENDIX

IN THE SUPREME COURT OF IOWA

No. 141/90-1845

Filed November 25, 1992

; DEAN A. FITZGARRALD and PHYLLIS FITZGERRALD,

- Appellants,

THE CITy OF IOWA City, IowA, and

JOHNSON COUNTY, IOWA,

Appellees.

On review from the Iowa Court of Appeals

Appeal from the Iowa District Court for Johnson

County, L. Vern Robinson, Judge.

Landowners adjacent to municipal airport appeal from

adverse judgment in mandamus action to compel con-

demnation. The court of appeals reversed. DECISION

OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

William L. Meardon of Meardon, Sueppel, Downer &

Hayes, Iowa City, for appellants.

David E. Brown of Hayek, Hayek, Holland & Brown,

Iowa City, for appellee City of Iowa City.

J. Patrick White, County Attorney, and Karen Loren-

zen, Legal Intern, for appellee Johnson County.

Considered en bance.

CARTER, J.

Plaintiffs, Dean Fitzgarrald and Phyllis Fitzgarrald,

who are landowners adjacent to the lowa City Municipai

Airport, appeal from adverse judgment in mandamus

action to compel condemnation. The court of appeals con-

cluded that a taking had occurred but that plaintiffs had

not shown exhaustion of administrative remedies or the

requisite “finality of taking” under the “variance” pro-

visions of the ordinance. We granted further review of

the court of appeals decision.

On June 17, 1992, this court filed an opinion deciding

the issues on appeal. A petition for rehearing filed by

plaintiffs was subsequently granted, and that opinion,

which was never published, was withdrawn. After re-

viewing the record and hearing the arguments as origi-

nally presented and upon the petition for rehearing, we

vacate the decision of the court of appeals. We affirm

the judgment of the district court.

Plaintiffs own approximately ten acres of land adjacent

to the southwest portion of the Iowa City Municipal Air-

port. The airport was in operation at the same location

when plaintiffs purchased the property sometime in the

1940s. Throughout their ownership of this property,

plaintiffs have resided in a dwelling located on the prem-

ises. In addition, they have operated a mobile home park

on the property.

The property was zoned as residential subsequent to

plaintiffs’ purchase thereof, and the mobile home park

operation has continued as a nonconforming use under

that zoning classification. Plaintiffs have attempted to

secure rezoning of the property so as to permit other

commercial uses, but those efforts have proved unsuccess-

ful. The most recent unsuccessful attempt to rezone the

property was in 1978 when plaintiffs applied to Johnson

County for rezoning to permit a motel operation.

Plaintiffs’ property is located at the end of airport

runway 6-24. In November 1984, the Iowa City Airport

Commission undertook a project designated as “Runway

6-24 Extension Project.” This project contemplated that

runway 6-24 would be extended 1000 feet toward plain-

tiffs’ property. The extension required the taking of

1.18 acres of plaintiffs’ land. To help facilitate this proj-

ect, the City of Iowa City and Johnson County in 1984

jointly adopted a zoning ordinance prescribing height

and use restrictions for property surrounding the air-

port.

The 1984 ordinance proscribed structures from pene-

trating an “Approach Overlay Zone,” which is a plane

beginning 200 feet from the end of a runway and ex-

tending skyward at a slope of thirty-four horizontal feet

to one vertical foot (34:1 slope). This “approach slope’’

for the proposed 1000-foot extension of runway 6-24 pene-

trated the plaintiffs’ home and some of their ground.

Preexisting stuctures that did not conform to the ordi-

nance were permitted to remain without alteration as

nonconforming uses.

The ordinance also provided for a “Clear Overlay

Zone,” which places restrictions om uses for property

located beneath it. A substantial portion of plaintiffs’

property is within the clear zone. The ordinance pro-

vides:

Use limitations. No use shall be permitted in the

OCL Zone in which there is connected therewith a

building which according to the 19&2 edition of the

Uniform Building Code, has an occupancy rating

of 50 square feet of floor area per person or less.

In addition, the following uses shall not be permitted:

(a) Campgrounds.

(b) Fairgrounds.

(di Motels and hotels.

(e} Nursing and custodial home.

(f) Residential uses.

(ig) Restaurants and similar eating and drinking

estaodlishments.

(h) Sanitary landfills.

(1) Schools, including nurseries, pre-kindergartens

and kindergartens,

(j) Stadiums.

(k) Storage of fuel or other hazardous materials.

(1) Theaters.

Exceptions and variances from the use limitations may

be allowed in some situations and a special board of ad-

justment has been established to consider such applica-

tions. To a large extent, the ordinance incorporated re-

strictions already contained in Federal Aviation Admin-

istration (FAA) regulations applicable to property sur-

rounding the airport. See 14 C.F.R. part 77 (1984).

In August 1986, the city initiated an eminent domain

proceeding to acquire 1.18 acres of plaintiffs’ property in

fee for the runway extension. The award in that pro-

ceeding is the subject of an appeal in a separate action

not affecting the present litigation. In December 1986,

plaintiffs filed a mandamus action demanding that the

city also condemn an avigation easement to permit flights

over their property.’ In October 1987, prior to adjudica-

tion of the mandamus action, the city did initiate emi-

nent domain proceedings to obtain such an easement.

That action was ultimately voided by district court or-

der as a result of a faulty description of the interests

being condemned. No further action has been taken by

the city to acquire an avigation easement over plaintiffs’

lands.

Ultimately, runway 6-24 was only extended 355 feet

instead of the 1000-foot extension originally contemplated.

The 1984 zoning ordinance was amended to accommo-

date this change. The primary result of these amend-

ments was to change the height restrictions of the ordi-

1In Dolezal v. City of Cedar Rapids, 209 N.W.2d 84, 87 (Iowa

1973), we described an avigation easement as one that permits

free flights over land including those so low and so frequent as

to amount to a taking of property.

nance to reflect the shorter runway. Under the amended

ordinance, plaintiffs’ dwelling penetrates 6.9 feet into the

specified approach slope. Like the 1984 ordinance, the

amended ordinance allows plaintiffs’ nonconforming uses

to continue without alteration.

When the ciay failed to reinitiate the aborted attempt

to condemn an avigation easement, plaintiffs again

pressed their mandamus action. They also amended that

action to allege that the zoning ordinances were so re-

strictive of property uses that they constituted a regu-

latory taking for which compensation was due plaintiffs.

After hearing the evidence presented at the trial of the

mandamus action, the district court concluded that the

ordinances do not constitute a compensable taking df

plaintiffs’ property. The court also considered and re-

jected plaintiffs’ claim that an avigation easement must

be condemned by the airport authority because of a direct

physical invasion of plaintiffs’ lands by overflying air-

craft. The latter claim was based on allegations that

unreasonable noise arid vibrations were occurring because

takeoffs and landings to and from the extended runway

were now more proximate to plaintiffs’ property. The

court found from the evidence that, in fact, there were

fewer flights over plaintiffs’ lands after the runway ex-

tension was completed than there were before that project

was initiated.” Other facts relevant to the case will be

considered in our discussion of the legal issues that have

been presented.

I. The Physical Invasion Claim.

We first consider plaintiffs’ claim that overflying air-

craft so adversely affects the use and enjoyment of their

property that a taking has resulted. In this regard, we

note the Supreme Court’s admonition that

2The court of appeals apparently found that the overflights

were a sufficient invasion to constitute a taking separate and apart

from the alleged regulatory taking.

[a] ‘taking’ may more readily be found when the

interference with property can be characterized as a

physical invasion by the government .. . than when

interference arises from some public program adjust-

ing the benefits and burdens of economic life to pro-

mote the common good.

Penn Cent. Transp. Co. v. City of New York, 438 U.S.

104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631, 648

(1978) (citation omitted). In some circumstances, over-

flying aircraft may amount to a physical invasion. See

United States v. Causby, 328 U.S. 256, 261, 66 S. Ct.

1062, 1065, 90 L. Ed. 1206, 1210 (1946).

Mandamus is an equitable action. Phelps v. Board of

Supervisors, 211 N.W.2d 274, 277 (Iowa 1973); Iowa

Code § 661.38 (1985). Our review is thus de novo. Iowa

R. App. P. 4. We tacitly recognized mandamus as a

procedural device to compel condemnation of an avigation

2asement in Dolezal, 209 N.W.2d at 87-88. In that case,

we recognized that an avigation easement may be re-

quired when flights are so low and so frequent as to

amount to a taking of property. /d. at 87. Of course,

every noise or interference with property as a result of

overflying aircraft does not constitute a taking. Land-

owners must endure some level of inconvenience, discom-

fort, and loss cf peace and quiet that can be reasonably

anticipated by members of a progressive society. But, as

the Minnesota court observed,

when those interferences reach the point where they

cause a measurable decrease in property market

value, it is reasonable to assume that, considering the

permanency of the air flights, a property right has

been, if not “taken or destroyed,” at the very least

“damaged,” for which our constitution requires that

compensation be paid.

Alevizos v. Metropolitan Airports Comm’n, 298 Minn.

471, 486-87, 216 N.M.2d 651, 662 (1974). In such eases,

the right to recovery is not for the nuisance that must be

endured but for the loss of value that has resulted.

Although some courts have concluded that the issue of

whether a taking has occurred in airport overflight cases

is an issue of law for the mandamus court to decide in

the first instance, see, e.g., In re Ramsey, 31 Pa. Commw.

182, 186, 375 A.2d 886, 888-89 (1977), we believe the

better rule to be that the mandamus court should only

determine whether a factual issue exists that would per-

mit a condemnation commission or a jury on appeal of an

award to find an intrusion that produced a measurable

decrease in the property’s market value. The mandamus

court may find the evidence insufficient as a matter of

law to compel the summoning of a condemnation com-

mission, but that court is simply not called upon to rule

as a matter of law that a taking has occurred. To do so

would create an undesirable issue preclusion problem in a

later trial of a condemnation proceeding. It is for the

condemnation commission or trial jury to fix the loss of

value, if any, suffered by the property owner. Phelps,

211 N.W.2d at 276.

If some physical invasion is in fact demonstrated, there

is no de minimis rule. As the Supreme Court has ob-

served:

|Nlo matter how minute the intrusion, and no mat-

ter how weighty the public purpose behind it, we have

required compensation [for physica! invasion].

Lucas v. South Carolina Coastal Couneil, US. —,

112 S. Ct. 2886, 2893, 120 L. Ed. 2d 798, 812 (1992).

The following comments of a Washington court are in-

structive on this point:

[T]he balance of interest inherently struck in this

type of action comes about in the following manner.

If the individual is unusually sensitive, and sustains

a greater injury than might be suffered by the gen-

eral public from such interference, the public interest

in maintaining the flights leaves him to one remedy—

to sell his property and move. This is no different

than it would be had his land been condemned for

forced sale to the state. But whichever way the state

exacts such a “sale,” it must pay the individual the

amount he suffers in the diminishment of the value

of his land... . Such lowering of market value

reflects not the personal injury to the individual, but

the lesser desirability of the land to the general

public....

... |Whhere there is only an injury of the extent

such that it should be called or labeled “incidental,”

no measurable or provable decline in market value

could be expected traceable to the flights. Recovery

would not be forthcoming, but not because of some

arbitrary rule set for convenience in administration

of justice, but because of an inability to prove dam-

ages according to the common and well understood

rules of suit. Second, and even more significant to

the balancing problem, the smaller the provable de-

cline in market value, the slighter the burden cast

upon the public in paying for it. Surely the pro-

tection of the public interest does not entail the

refusal of smal! claims on the ground that the burden

to the public is not great enough to pay for!

Martin v. Pori of Seattle, 65 Wash. 2d 309, 318, 391

P.2d 540, 546-47 (1964). We accept these principles and

thus accept plaintiffs’ argument that, on their physical

invasion claim, they were not required to try their emi-

nent domain case in full in the mandamus action. They

were only required to present enough evidence to generate

a fact issue as to whether the overflying aircraft pro-

duced a measurable decrease in property value.

Plaintiffs appear to have contended at one point in the

litigation that the thirty-four horizontal feet to one ver-

tical foot approach slope constituted the flight path of

aircraft over their property on takeoffs and landings.

The evidence reveals, however, that the approach slope is

merely a clearance zone and bears no relationship to the

actual altitude of planes over the land to which the ap-

proach slope applies. The record is devoid of any evi-

dence showing either the frequency or approximate alti-

tudes of planes flying over plaintiffs’ lands.

Defendants presented evidence that planes were taking

off and landing with approximately the same frequency

and altitude before and after the runway extension.

Three pilots who testified for defendants indicated that

after the runway was extended they altered their ap-

proach turns to runway 6-24 so as to keep farther away

from plaintiffs’ property. Two of these pilots conceded,

however, that planes landing on runway 6-24 would now

pass over plaintiffs’ lands at lower altitudes as a result

of the 355-foot runway extension.

Although plaintiff Phyllis Fitzgarrald testified as to

some inconvenience from airport noise, she did not fix

the frequency of such occurrences nor indicate that this

occurred on a regular basis. She testified that some

tenants of the mobile home park had left after the run-

way was extended, but admitted that she had no personal

knowledge as to the reason why. No other evidence was

offered concerning loss of tenants at the park. Most sig-

nificant perhaps, for purposes of plaintiffs’ physical inva-

sion claim, is the fact that the loss-of-value evidence that

they presented related entirely to their regulatory taking

claim. None of the witnesses at trial testified that over-

flying aircraft adversely affected the market value of

plaintiffs’ property. Consequently, we are forced to con-

clude that there is a deficiency of proof as to the element

of “measurable decrease in market value” due to over-

flying aircraft. The district court correctly rejected

plaintiffs’ physical invasion claim, and the court of ap-

peals erred in concluding otherwise.

II. The Regulatory Taking Issue.

We next consider whether the district court was correct

in deciding the regulatory taking issue adversely to plain-

ae aad

10a

tiffs. Although action by the state or its political subdi-

visions pursuant to the police power and the power of

eminent domain were once thought to be separate and

compartmentalized powers that did not overlap, this view

has now been largely abandoned. See 2 A. Gaudio, The

American Law of Real Property $17.05, at 87-102

(1991). We have recognized the “inevitable danger” to

private property that would exist if the “just compensa-

tion” requirements of the fifth amendment to the federal

Constitution and article I, section 18 of the Iowa Consti-

tution could be circumvented through the guise of police

power regulations. Business Ventures, Inc. v. Iowa City,

234 N.W.2d 376, 381-82 (Iowa 1975).

We have previously observed that:

A] “taking” does not necessarily mean the appropri-

ation of the fee. It may be anything which substan-

tially deprives one of the use and enjoyment of his

property or a portion thereof.... |T]here has been

a taking if, as plaintiffs contend, there has been a

substantial interference with their use and enjoy-

ment of their property... .

Phelps, 211 N.W.2d at 276 (citations omitted). Al-

though not every police power regulation that restricts

some beneficial use of property creates a compensable

taking, see Stone v. City of Wilton, 331 N.W.2d 398. 404

(Towa 1983), the frustration of investment-backed ex-

pectations by zoning ordinances may constitute a taking

fer which compensation is due. See, e.g., Agins v. City of

Tiburon, 477 U.S. 255, 260, 100 S. Ct. 2138, 2141. 65 L.,.

Ed. 2d 106, 112 (1980) (application of general zoning

‘aw to particular property affects a taking if it denies

the economically viable use of the land): Obsorn +. City

of Cedar Rapids, 324 N.W.2d 471, 474 (Iowa 1982) (ac-

tion taken for public good that places uncompensated

burden upon plaintiff’s property not shared by public at

large may constitute taking); Woodbury County Soil

Conservation Dist. v. Ortner, 279 N.W.2d 276, 278 (Iowa

lla

1979) (even exercise of police power may amount to tak-

ing if it deprives owner of substantial use and enjoyment

of property).

Plaintiffs offered the testimony of an expert witness

who stated that there property was located in an area

where commercial development was taking place. This

witness expressed the view that the airport “clear zone”

requirement was a detriment to the property’s develop-

ment potential. We believe the substance of that conclu-

sion is to be strongly inferred from the record in the

absence of expert testimony.

A loss of development potential may be a significant

factor in “taking” claims based on zoning restrictions.

See Lucas, U.S. at , 112 S. Ct. at 2893-94, 120

L. Ed. 2d at 813-14. Absent some physical invasion, how-

ever, a taking does not occur until there has been a sub-

stantial interference with investment-backed expectations.

Stone, 331 N.W.2d at 404. There are two principles that

we believe affect this determination. First, the court

should look at the value of the use remaining rather than

the diminution of value of the property. Penn Cent.

Transp. Co., 438 U.S. at 130-31, 98 S. Ct. at 2662-63, 57

L. Ed. 2d at 552-53.* Second, “ ‘taking’ jurisprudence

does not divide a single parcel into discreet segments and

attempt to determine whether rights in a particular seg-

ment have been entirely abrogated.” Jd.

In the recent Lucas case, the Court again considered

whether

the situation [is] one in which the owner has been

deprived of all economically beneficial use of the bur-

dened portion of the tract, or as one in which the

* We suggested that a regulatory taking may arise from “any-

thing that substantially deprives one of the use and enjoyment

of his property or a portion thereof” in Phelps, 211 N.W.2d at 276.

That case, however, involved a physical invasion for which the

“taking” criteria differ substantially from those applicable in regu-

latory zoning cases.

12a

owner has suffered a mere diminution in value of

the tract as a whole.

Lucas, —— U.S. at ——., 112 S. Ct. at 2894, 120 L. Ed.

2d at $13. The Court suggests that this question turns on

how the interest is viewed under state property law. /d.

Damages for a partial taking under Iowa law are not

measured by the value of the portion taken. They are

measured by the diminution in value of the original tract.

See Twin-State Eng’g & Chem. Co. v. Iowa State High-

way Comm'n, 197 N.W.2d 575, 577-78 (lowa 1972):

Powers v. City of Dubuque, 176 N.W.2d 135, 138 (lowa

1970). Thus, under state property law, we view the

present interference as one in which the owner has suf-

fered a diminution in value of the tract as a whole.

In light of the principles just discussed, we conclude

that the alleged deprivation in the present case is much

less severe than that which was hled to be insufficient to

support a constitutional taking in Stone, 331 N.W.2d at

404. As was the case in Stone, these plaintiffs continue

to have an economically viable use of their property even

though its market value has to some extent been dimin-

ished as a result of the airport zoning ordinances. This

loss of value is insufficient to support a finding that a

regulatory taking has occurred. The court of appeals

erred in determining otherwise.

We have considered all issues presented and conclude

that the decision of the court of appeals must be vacated

and the judgment of the district court affirmed in all

respects.

DECISION OF COURT OF APPEALS VACATED:

DISTRICT COURT JUDGMENT AFFIRMED.

13a

IN THE IOWA DISTRICT COURT

IN AND FOR JOHNSON COUNTY

No. ———

DEAN A. FITZGARRALD AND PHYLLIS FITZGARRALD

Plaintiffs,

THE Ciry or Iowa City, Iowa

Defendant.

PETITION FOR WRIT OF MANDAMUS

| Filed Dee. 15, 1986]

Plaintiffs state:

1. Plaintiffs are residents of Johnson County, Iowa,

and the owners of certain real estate located immediately

abutting and to the west of the Iowa City Municipal Air-

port, a facility owned and operated by the Defendant.

2. Plaintiffs’ property consists of a tract of land hav-

ing an area of between 6 and 10 acres which has been

used for the operation of a mobile home court for many

years.

3. During 1986 the Defendant, through the acts of its

City Council, determined to extend Runway 6-24 of the

lowa City Municipal Airport and for such purpose deter-

mined to acquire property owned by these Plaintiffs and

others.

4. Pursuant to such project, Defendant instituted con-

demnation proceedings and on November 18, 1986, con-

demned 1.18 acres of Plaintiffs’ land.

5. Defendant has also adopted a glide slope of 34:1

for Runway 6 as a result of which aircrafts usihg said

l4da

glide slope will cause great annoyance, disturbance, and

impair the safety of the aircraft, its passengers, and the

occupants of Plaintiffs’ mobile home court.

6. On October 7, 1986, Defendant’s council passed a

resolution finding that it was necessary to acquire an

avigation easement over 5.02 acres of Plaintiffs’ property,

a copy of said resolution being attached hereto as Exhibit

“A” and made a part hereof,

7. Notwithstanding the enactment of Exhibit “A”, the

Defendant has instituted condemnation proceedings for

the purpose of acquiring fee title to only 1.18 acres of

land owned by the Plaintiffs as more particularly referred

to in the condemnation described in paragraph 4 above,

a copy of the Notice of said proceedings being attached

as Exhibit “B” and by this reference made a part hereof.

8. The Defendant should be required to acquire in one

condemnation proceeding all of the interests of the Plain-

tiffs which have been or are being “taken” by the Defend-

ant in connection with its airport extensions, modifica-

tions, and operation.

9. Plaintiffs have no plan, speedy, and adequate rem-

edy at law.

10. Plaintiffs are private individuals having a personal

interest in this matter and the failure of the Defendant

to acquire the interest of the Plaintiffs in their property

Which have already been de facto “taken” is the proper

subject of a writ of mandamus commanding the Defend-

ant to institute condemnation proceedings immediately

for the purpose of acquiring such interest.

11. Plaintiffs have demanded that such acquisition

occur but Defendant has failed or refused to comply with

such demand.

By reason of the foregoing, Plaintiffs ask that a Writ

of Mandamus issue commanding the Defendant to forth-

with institute condemnation procedures to acquire the

| ona

l5a

avigation easement more particularly described in Ex-

hibit “A” as part of the condemnation referred to in

Exhibit “B” and that the Plaintiffs be granted further

auxiliary relief as may be proper and Defendant be or-

dered to pay the cost of this action including a reasonable

attorney’s fee (see Exhibit ““C” attached).

MEARDON, SUEPPEL,

DOWNER & HAYES

By /s/ William L. Meardon

WILLIAM L. MEARDON

172 South Linn Street

Iowa City, Iowa 52240

Telephone:

319-338-9222

Attorneys for

Plaintiffs

l6a

EXHIBIT “A”

RESOLUTION NO. 86-312

RESOLUTION AUTHORIZING ACQUISITION OF

CERTAIN PROPERTY INTERESTS BY NEGOTIA-

TION OF CONDEMNATION IN CONNECTION

WITH THE RUNWAY 6-24 EXTENTION PROJECT

AT THE IOWA CITY MUNICIPAL AIRPORT.

WHEREAS, the City Council has approved funding for

the Runway 6-24 Extension Project at the Iowa City

Municipal Airport, and

WHEREAS, by Resolution 86-254 the City Council previ-

ously authorized institution of condemnation proceedings

to acquire four parcels of real property necessary for said

improvements at the Iowa City Municipal Airport, and

WHEREAS, as an integral part of said project, it is also

necessary to acquire an avigation easement over 5.02 acres

of private property owned by Dean and Phyllis Fitzgar-

rald. A plat and legal description of the property over

which the easement is to be acquired is attached hereto

and incorporated herein as Exhibit A.

NOW, THEREFORE, BE IT RESOLVED BY THE

CITY COUNCIL OF IOWA CITY, IOWA, that the Air-

port Manage) be and is hereby authorized and directed to

negotiate the acquisition of an avigation easement over

the property of Dean and Phyllis Fitzgarrald, as herein-

after described, necessary for public improvements at the

Iowa City Municipal Airport in conjunction with the Run-

way 6-24 Extension Project, which project this City Coun-

cil deems to be for a public purpose and in the public

interest.

AND BE IT FURTHER RESOLVED that in the event

the Airport Manager is unable to acquire said property

interests by negotiation, the City Attorney be and is

hereby authorized and directed to institute and conduct

17a

condemnation proceedings pursuant to state law to ac-

quire said property interests.

It was moved by Dickson and second by McDonald the

Resolution be adopted, and upon roll call there were:

AYES: NAYS: ABSENT:

——- —_—— —— AMBRISCO

a ed — — BAKER

aa meee — —— COURTNEY

cutenemtenss a ——— DICKSON

“

— ——— —— MCDONALD

— —— ——— STRAIT

—_—— ——. ——— ZUBER

Passed and approved this 7th day of October, 1986.

Mayor

ATTEST:

City Clerk |

| Resolved & Approved By The Legal Department

10/2/86]

18a

EXHIBIT “B”

IN THE MATTER OF CONDEMNATION OF CERTAIN LAND AND

PROPERTY RIGHTS BY THE CITY OF IOWA CITY, IOWA, FOR

THE USE AND BENEFIT OF THE CITY OF IOWA City, IOWA,

PURSUANT TO CHAPTER 471 OF THE CODE OF IOWA

(1985), FOR THE RUNWAY 6-24 EXTENSION PROJECT AT

THE IOWA CiTy MUNICIPAL AIRPORT, ON LAND DESCRIBED

IN THE EXHIBITS ATTACHED HERETO AND MADE A PART

HEREOF: ALL SUCH LAND LOCATED IN IOWA CITY, JOHN-

SON COUNTY, IOWA.

To: Dean A. Fitzgarrald and Phyllis Fitzgarrald

Highway 1 South

lowa City, lowa 52240

Johnson County, Iowa

co Johnson County Auditor

Johnson County Administration Bldg.

913 5. Dubuque Street

Iowa City, Iowa 52240

Johnson County, Iowa

ec 0 Johnson County Treasurer

Johnson County Administration Bldg.

913 8. Dubuque Street

lowa City, lowa 52240

State of Iowa

¢ o Johnson County Clerk of Court

Johnson County Courthouse

lowa City, lowa 52240

State of Iowa

Iowa Dept. of Transportation

c/o Richard E. Kautz

Resident Maintenance Engineer

227 First Street

Iowa City, Iowa 52240

19a

lowa-Illinois Gas & Electrie Co.

c/o Thomas T. Hoogerwerf, Gen. Mgr.

1630 Lower Muscatine Road

lowa City, lowa 52240

And all other persons, companies or corporations hav-

ing any interest in or owning any of the following de-

scribed real estate:

That part of the NE1/4 of the NE1/4 of Section 20,

Township 79 North, Range 6 West, lying southeast-

erly of present State Highway No. 1, Westerly of the

original State Highway No. 1, and Northeasterly of

the county road, in Johnson County, Iowa, described

as follows:

Commencing at the NE corner of said Section 20;

thence S 01°45’ W along the East line of said NE1/4

a distance of 743.0 feet to a point on the southeast-

erly right-of-way line of present State Highway No.

1; thence S 38°04’ W along said right-of-way line

261.5 feet; thence S 24°59’30” E along said right-of-

way line 102.00 feet; thence N 36°18’ W along said

right-of-way line 87.3 feet; thence S 11°69’ W along

said right-of-way line 67.0 feet to a point on the cen-

terline of the county road; thence S 36°18’ E along

said centerline 85.9 feet to the beginning of a tangent

curve to the right; said curve having a radius of

572.96 feet; thence southeasterly along said curve on

said centerline 215.1 feet through a central angle of

21 30’50” to a point on the centerline curve of said

original State Highway No. 1; said curves not being

tangent; thence northerly along the second curve 165.4

feet on the centerline of said original State Highway

No. 1, said second curve having a chord bearing N

10 01’ E, a radius of 572.96 feet, and concave West-

erly, through a central angle of 16°32’15” to the point

of tangency on the said East line of the NE1 4:

thence N 01 45’ E along said East line on said cen-

—

20a

terline of original State Highway No. 1 a distance of

393.6 feet to the point of beginning. Containing 1.18

acres, more or less. Subject to the county road and

eastments of record. For the purpose of this deserip-

tion, the East line of the NE1/4 is assumed to bear

S 01°45’ W.

YOU ARE HEREBY NOTIFIED that the City of

Iowa City, lowa, desires condemnation in fee simple of

the above-described real estate as shown in the plat at-

tached hereto as Exhibit A.

YOU ARE FURTHER NOTIFIED:

1. That such condemnation is sought for the purpose

of improving the Jowa City Municipal Airport in con-

junction with the Runway 6-24 Extension Project and

that such condemnation is done pursuant to law as pro-

vided in Chapters 471 and 472, Code of Iowa (1985).

2. That a Compensation Commission has been ap-

pointed as provided by law for the purpose of appraising

the damages which will be caused by said condemnation.

3. That said Compensation Commission will, on the

18th day of November, 1986, at 9:00 o’clock a.m., view

said premises and proceed to appraise said damages at

1:30 o’clock p.m. at the Office of the Johnson County

Sheriff, Iowa City, Iowa, at which time you may appear

before said Commission if you care to do so.

CITY OF IOWA CITY

By: /s/ David E. Brown

CiTy OF IOWA CITY

DAviID E. BROWN

Assistant City Attorney

410 E. Washington St.

Jowa City, Iowa 52240

ATTORNEY FOR

CONDEMNER

2la

Filed in my office at fowa City, Iowa, this day of

, 1986.

GARY HUGHES

Sheriff of Johnson County

ACCEPTANCE OF SERVICE

Service of the above and foregoing notice is hereby ac-

cepted and receipt of a copy thereof acknowledged, and I

hereby waive time of service and/or any publication of

such notice in a newspaper.

Signed at , lowa, this

vember, 1986.

day of No-

s/ Dean A. Fitzgarrald

DEAN A. FITZGARRALD

s/ Phyllis Fitzgarrald

PHYLLIS EITZGARRALD

STATE OF IOWA ]

) ss

COUNTY OF JOHNSON

Received the within notice the ——— day of November,

1986 ——-—, and I hereby certify that I have served the

same on the persons named below, by delivering a true

copy of the same to each of said persons at the time and

place set opposite their respective names:

Name a Month Day Year

Township City ‘Town ~~~ County “State

Fees:

Service $——— Gary HUGHES

Mileage $———— Sheriff of Johnson County

By:

Total $———- Deputy

22a

APPLICATION TO THE CHIEF JUDGE OF THE

SIXTH JUDICIAL DISTRICT FOR THE

APPOINTMENT OF A COMMISSION TO

APPRAISE DAMAGES

IN THE MATTER OF THE CONDEMNATION OF CERTAIN LAND

AND PROPERTY RIGHTS BY THE CITY OF IOWA ClITy, IOWA

FOR THE USE AND BENEFIT OF THE CITY OF IOWA CITY,

iOWA, PURSUANT TO CHAPTER 471 OF THE CODE OF IOWA

(1985), FOR THE RUNWAY 6-24 EXTENSION PROJECT AT

THE IOWA CITY MUNICIPAL AIRPORT, ON LAND DE-

SCRIBED IN THE EXHIBITS ATTACHED HERETO AND MADE

A PART HEREOF: ALL SUCH LAND LOCATED IN IOWA CITY,

JOHNSON COUNTY, IOWA.

To: The Honorable August F. Honsell, Chief Judge of the

Sixth Judicial District, including Johnson County,

Iowa

COMES NOW, City of Iowa City, Iowa, by and through

its attorney, David Ek. Brown, Assistant City Attorney,

und for purposes of making Application to the Court pur-

suant to Chapters 471 and 472, Code of Iowa (1985) does

respectfully state as follows:

1. That the City of Iowa City, Iowa, is a municipal

corporation, duly organized, authorized and exist-

ing pursuant to the laws of the State of Iowa.

That pursuant to and in compliance with the laws

of the State of Iowa, the City Council of the City

of Iowa City, Iowa, has determined that the pub-

lic interest requires the City of Iowa City to make

improvements for the Iowa City Municipal Air-

port on property commencing at

That part of the NE 1/4 of the NE 1/4 of

Section 20, Township 79 North, Range 6

23a

West, lying southeasterly of present State

Highway No. 1, westerly of the original State

Highway No. 1, and northeasterly of the

county road, in Johnson County, Iowa, de-

scribed as follows:

Commencing at the NE corner of said Sec-

tion 20; thence S 01°45’ W along the East

line of said NE 1/4 a distance of 743.0 feet

to a point on the southeasterly right-of-way

line of present State Highway No. 1; thence

S 38°04’ W along said right-of-way line

261.5 feet; thence S 24°59’30” If along said

right-of-way line 102.0 feet; thence N 36 18’

W along said right-of-way line 87.3 feet;

thence S 11°59’ W along said right-of-way

line 67.0 feet to a point on the centerline of

the county road; thence S 36°18’ FE along

said centerline 85.9 feet to the beginning of

a tangent curve to the right; said curve hav-

ing a radius of 572.96 feet; thence south-

easterly along said curve on said centerline

215.1 feet through a central angle of 21° 30’

50° to a point on the centerline curve of said

original State Highway No. 1; said curves

not being tangent; thence northerly along

the second curve 165.4 feet on the center line

of said original State Highway No. 1, said

second curve having a chord bearing N 10 01’

E, a radius of 572.96 feet, and concave West-

erly, through a central angle of 16°32’15” to

the point of tangency on the said East line of

the NE 1/4; thence N 01°45’ E along said

cast line on said center line of original State

Highway No. 1 a distance of 393.6 feet to the

point of beginning. Containing 1.18 acres,

more or less. Subject to the county road and

—

24a

easements of record. For the purpose of this

description, the East line of the NE 1/4 is

assumed to bear S 01°45’ W.

Said property to be taken by condemnation pro-

ceedings as provided by law, as shown in “Exhibit

A” attached hereto and incorporated by reference

herein.

3. That the real estate affected and the record own-

ers, lienholders, encumberances and all other per-

sons interested therein are listed on the docu-

ments herein attached and form a part hereof;

and are shown with reference to their location

as to the lands affected on the plat attached

hereto and made a part hereof; further, that

said real estate is located in Iowa City, Johnson

County, Iowa.

4. That the City of Iowa City has been unable to

secure the described rights and land by purchase

and conveyance.

PY,

5. That the land sought to be condemned is agricul-

tural property and that such land is classified as

Class IIT land under the United States Department

of Agriculture soil conservation service land e¢a-

pability classification system; further, that said

Class II land is reasonably necessary for the work

of internal improvement fer which condemnation

is sought.

WHEREFORE, CITY respectfully requests that ap-

pointments be made of a Compensation Commission to

assess damages as provided in Chapter 472, Code of Iowa

(1985).

Dated this 5th day of August, 1986.

25a

City OF Iowa City, IOWA

By: /s/ David E. Brown

DAVID E. BROWN

Assistant City Attorney

410 E. Washington St.

lowa City, Iowa 52240

356-5033

Filed in my office in Linn County, Iowa, this 6th day of

August 19&6.

s/ August F. Honsell

AUGUST F. HONSELL

Chief Judge

Sixth Judicial District

of Iowa

26a

PARCEL INFORMATION SHEET

IN THE MATTER OF THE CONDEMNATION OF CERTAIN LAND

AND PROPERTY RIGHTS BY THE CITY OF IOWA CITy, IOWA,

FOR THE USE AND BENEFIT OF THE CITY oF IOWA CITY,

IOWA, PURSUANT TO CHAPTER 471 OF THE CODE OF IOWA

(1985), FOR THE RUNWAY 6-24 EXTENSION PROJECT AT

THE IOWA CITY MUNICIPAL AIRPORT, ON LAND DE-

SCRIBED IN THE EXHIBITS ATTACHED HERETO AND MADE

A PART HEREOF: ALL SUCH LAND LOCATED IN IOWA CITY,

JOHNSON COUNTY, IOWA.

Condemnation of fee simple absolute title is sought

of the following described real estate:

That part of the NE 1/4 of the NE 1/4 of Section

20, Township 79 North, Range 6 West, lying

southeasterly of present State Highway No. 1,

westerly of the original State Highway No. 1,

and northeasterly of the county road, in Johnson

County, Iowa, described as follows:

Commencing at the NE corner of said Section 20;

thence S 01°45’ W along the East line of said NE

1/4 a distance of 743.0 feet to a point on the

southeasterly right-of-way line of present State

Highway No. 1; thence S 38°04’ W along said

right-of-way line 261.5 feet; thence S 24 59’30”

FE along said right-of-way line 102.0 feet; thence

N 36°18’ W along said rightof-way line 87.3 feet;

thence S 11°59’ W along said right-of-way line

67.0 feet to a point on the centerline of the county

road; thence S 36°18’ E along said centerline 85.9

feet to the beginning of a tangent curve to the

right; said curve having a radius of 572.96 feet;

thence southeasterly along said curve on said cen-

27a

terline 215.1 feet through a central angle of

21°30’50” to a point on the centerline curve of

said original State Highway No. 1; said curves

not being tangent; thence northerly along the

second curve 165.4 feet on the center line of said

original State Highway No. 1, said second curve

having a chord bearing N 10°01’ E, a radius of

572.96 feet, and concave Westerly, through a cen-

tral angle of 16°32’15” to the point of tangency

on the said East line of the NE 1/4; thence N

1°45’ E along said East line on said center line

of original State Highway No. 1 a distance of

393.6 feet to the point of beginning. Containing

1.18 acres, more or less. Subject to the county

road and easements of record. For the purpose of

this description, the East line of the NE 1/4 is

assumed to bear S 01°45’ W.

Attached hereto and made a part hereof by this ref-

erence is a plat showing the parcel of real estate

sought for condemnation (see attached Exhibit A).

Record Title Vested in: Dean A. Fitzgarrald and

Phyllis Fitzgarrald

Easements:

a) Easement in favor of Johnson County, Iowa,

for road purposes as recorded in Book 136, page

32. b) Easement in favor of the State of Iowa,

for road purposes, as recorded in Book 180, page

197. c) Easement in favor of Iowa-Illinois Gas

and Electric Company over a certain 20 foot

strip, as recorded in Book 230, page 202. d) Ease-

ment in favor of Iowa-Illinois Gas and Electric

Company over a twenty foot strip, as recorded in

Book 337, page 218.

Mortgages and Lienholders: None

28a

Other matters affecting title:

Judgment entered for traffic violator in favor of

the State of Iowa against Phyilis F. Fitzgarrald

on September 2, 1988, in the amount of $54.00,

plus $6.00 court costs.

Texas:

Johnson County, Iowa

c/o County Auditor

Johnson County Courthouse

Iowa City, Iowa 52240

Tax Liens: None

Parcel Information Sheet—Page 2 of 2

City of Iowa City, Iowa, Applicant

Fitzgarrald Parcel

29a

NE COR.

PLAT a 90~Fe-8

JOWA CITY AIRPORT

| SOUTHEASTERLY R.O.W. LINE A OU

wns OF PRESENT STATE HIGHWAY NO. t 7

/ \ ar.

SCALE: " 103" ™ ante )

@ FOUND IAON Pin

CENTERLINE OF

COUNTY ROAD

383.6

NO1° 46°E

CENTERLINE OF ORIGINAL

STATE HIGHWAY NO. 1

Bi A. FITIOARANLO ARS PHYLLIS FITICARRALD

That part of the NE 1/4 of the NE 1/4 of Section 20,

Township 79 North, Range 6 West, lying southwesterly

of present State Highway No. 1, westerly of the original

State Highway No. 1, and northeasterly of the county

road, in Johnson County, Iowa, described as follows:

Commencing at the NE corner of said Section 20;

thence S 01°48’ W along the East line of said NE 1/4

a distance of 743.0 feet to a point on the southeasterly

right-of-way line of present State Highway No. 1; thence

30a

S 38°04’ W along said right-of-way line 281.5 feet; thence

» 24°69'30" FE along said right-of-way line 102.0 feet:

thence N 36°18’ W along said right-of-way line. 87.3 feet;

thence S 11°59’ W along said right-of-way line 67.0 feet

fo a point on the centerline of the county road; thence S

88 18" bo along said centerline 85.9 feet to the beginning

of a tangent curve to the right; said curve having a radius

of 672.96 feet; thence southeasterly along said curve on

said centerline 215.1 feet through a central angle of 21)

8050” to a point on the centerline curve of said original]

State Highway No. 1; said curves not being tangent;

thence northerly along the second curve 165.4 feet on the

Ttenterline of said original State Highway Ne. 1, said

second curve having a chord bearing N 10°01’ E, a radius

of 572.95 feet, and coneave Westerly, through a central

angle of 16 32715” “g oi point of tangency on the said

Kast line of the NE 1/4, thence N 01°45’ FE along said

last line on said maeweas of original State Highway No.

1 a distance of 393.6 feet to the point of beginning. Con-

taining 1.18 acres, more or less. Subject to the county

road assessments of record. For the purpose of this de-

scription the last line of the NE 1/4 is assumed to bear

S O01 45’ W.

[ hereby certify that this Map, Plat, Survey or Report

Was made by me or under my direct personal supervision

and that lam a duly registered land surveyor under the

laws of the State of Iowa.

FEBRUARY 21, 1985 Donald E. Pullett, D.S.

Date — DONALD E. PULLETT |

Iowa Registrator

8la

SELECTION AND APPOINTMENT OF

COMPENSATION COMMISSION BY THE CHIEF

JUDGE OF THE SIXTH JUDICIAL DISTRICT

__ eS

IN THE MATTER OF THE CONDEMNATION OF CERTAIN LAND

AND PROPERTY RIGHTS BY THE CITY OF IOWA City, Iowa,

FOR THE USE AND BENEFIT OF THE CITY OF IOWA City,

IOWA, PURSUANT TO CHAPTER 471 OF THE CODE OF IOWA

(1985), FOR THE RUNWAY 6-24 EXTENSION PROJECT AT

THE IOWA City MUNICIPAL AIRPORT, ON LAND DE-

SCRIBED IN THE EXHIBITS ATTACHED HERETO ANI) MADE

A PART HEREOF: ALL SUCH LAND LOCATED IN IOWA CITY,

JOHNSON COUNTY, IOWA.

An Application for Condemnation having been filed

with me by the City of Iowa City, Iowa, for the selection

and appointment, by lot, of six suitable persons as the law

provides to act as a compensation commission to assess

and appraise the damages sustained by reason of the con-

demnation of certain specified rights in certain land de-

scribed by Applicant, in its Application filed in the above

matter, I hereby designate, select, and appoint as the

members of the said compensation commission required in

this matter the following persons:

Name Address Qualifications

Robert Carran Sr. Iowa City Licensed Real Estate Salesman

or Broker

David Cozine Iowa City Licensed Real Estate Salesman

or Broker

Rick Anderson Iowa City Knowledgeable of Property

Values by Virtue of Occupation

Kenny O’Donnell Iowa City Knowledgeable of Property

Values by Virtue of Occupation

Robert Lenz Iowa City Owner-Operator of Avricultural

Property

Lillian Rohert Oxford, Iowa Owner-Operator of Agricultural

Property

32a

I further designate, select, and appoint, the above

named Robert Carran Sr. to act as Chairman of said

Commission.

TO THE SHERIFF OF JOHNSON COUNTY, IOWA;

Attached hereto please find a duplicate of the Application

for Condemnation in the above entitled matter.

Dated at Cedar Rapids, lowa, this 6th day of August,

1985.

/s/ August F. Honsell

AuGust F. HONSELL

Chief Judge of the Sixth Judicial District,

including Johnson County, lowa

Filed in my office at Iowa City, Iowa, this

, 1986.

day of

GARY HUGHES

Sheriff of Johnson County, Iowa

33a

SUPPLEMENTARY ORDER APPOINTING

ALTERNATE COMPENSATION COMMISSIONERS

IN THE MATTER OF THE CONDEMNATICN OF CERTAIN LAND

AND PROPERTY RIGHTS BY THE CITY OF IOWA City, Iowa,

FOR THE USE AND BENEFIT OF THE CITY OF IOWA CITY,

IOWA, PURSUANT TO CHAPTER 471 OF THE CODE OF IOWA

(1985), FOR THE RUNWAY 6-24 EXTENSION PROJECT AT

THE IoWA CITY MUNICIPAL AIRPORT, ON LAND DE-

SCRIBED IN THE EXHIBITS ATTACHED HERETO AND MADE

A PART HEREOF: ALL SUCH LAND LOCATED IN IOWA CITY,

JOHNSON COUNTY, IOWA.

An Application for Condemnation having been filed

with me by the City of Iowa City, Iowa, entitled as above,

for the selection and appointment, by lot, of a duly con-

stituted compensation commission, said selection and ap-

pointment having been made by me, I further appoint

the folowing persons to serve as alternate members of

said compensation commission, in the event that any of

the said members having the same qualifications are un-

able to serve for any reason.

Name Address Qualifications

Gary L. Fink Iowa City Licensed Real Estate Salesman

or Broker

Bernie Green Iowa City Knowledgeable of Property

Values by Virtue of Occupation

Dan Black Oxford, Iowa Owner-Operator of Agricultural

Property

The Sheriff of Johnson County, Iowa, shall upon being

informed of a vacancy in the compensation commission,

notify the alternate member appointed having the same

qualifications as the person unable to serve in the same

manner as the original commissioners were notified.

34a

Dated at Cedar Rapids, lowa, this 6th day of August,

L986.

s’ August F. Honsell

AuGustT IF’, HONSELL

Chief Judge of the Sixth Judicial District,

including Johnson County, Iowa

Filed in my office at lowa City, Iowa, this day of

—_———, 1986.

GARY HUGHES

Sheriff of Johnson County, Iowa

85a

APPLICANT’S CERTIFICATION THAT ITS

APPLICATION FOR CONDEMNATION HAS BEEN

APPROVED BY THE CHIEF JUDGE

IN THE MATTER OF THE CONDEMNATION OF CERTAIN LAND

AND PROPERTY RIGHTS BY THE CITY OF IOWA CITY, IOWA,

PURSUANT TO CHAPTER 471 OF THE CODE OF IOWA

(1985), FOR THE RUNWAY 6-24 EXTENSION PROJECT AT

THE IOWA City MUNICIPAL AIRPORT, ON LAND DE-

SCRIBED IN THE EXHIBITS ATTACHED HERETO AND MADE

A PART HEREOF: ALL SUCH LAND LOCATED IN IOWA CITY,

JOHNSON COUNTY, IOWA.

COMES NOW, the City of Iowa City, Iowa, by and

through its attorney, David E. Brown, Assistant City

Attorney, and hereby certifies that the attached Applica-

tion for Condemnation has been approved by the Chief

Judge and that a compensation commission has been

appointed.

CiITy OF IOWA CITY

By: /s/ David E. Brown

DAVID EK. BROWN

Assistant City Attorney

410 E. Washington St.

Iowa City, lowa 52240

36a

EXHIBIT “C”

IN THE IOWA DISTRICT COURT

FOR JOHNSON COUNTY

No.

DEAN A. FITZGARRALD and PHYLLIS FITZGARRALD,

Plaintiffs,

vs.

THE CITY OF Iowa City, Iowa,

Defendant.

AFFIDAVIT FOR ATTORNEY’S FEES

STATE OF IOWA )

> we:

COUNTY OF JOHNSON _ )

I, William L. Meardon, being first duly sworn on this

15th day of December, 1986, upon my oath depose and

state that I am the attorney who filed the Petition for

Writ of Mandamus to which this Affidavit is attached

and there has been no agreement between me, this law

firm, and the Defendant, express or implied, nor between

me and this law firm or any other person for any divi-

sion or share of the fee to be taxed as a result of the

events alleged in the above-entitled matter, any such fees

when taxed to be in favor of Meardson, Sueppel, Downer

& Hayes as compensation for services actually performed

in this action.

/s/ William L. Meardon

WILLIAM L. MEARDON

37a

Subscribed and sworn to before me by William L.

Meardon on this 15th day of December, 1986.

s/ Staci E. Haynes

STACI E. HAYNES

Notary Public in and

for the State of Iowa

38a

IN THE IOWA DISTRICT COURT

IN AND FOR JOHNSON COUNTY

No. 50400

DEAN A, FITZGARRALD AND PHYLLIS FITZGARRALD,

Plaintiffs,

VS.

THE City OF Iowa City, Iowa,

Defendant.

MOTION FOR LEAVE TO AMEND

Plaintiffs ask leave of Court to amend their Petition

for Writ of Mandamus as more particularly described in

the amendment attached hereto as Exhibit “A” and by

this reference made a part hereof. Plaintiffs further

state as gounds for this motion:

1. Plaintiffs at their own substantial expense have

recently obtained a topographical survey of their prop-

erty.

2. Plaintiffs have retained an engineer in an attempt

to ascertain the impact of the 34:1 glide slope upon their

entire property and are now advised that their entire

property has been severely and detrimentally affected py

Defendant’s action.

3. Plaintiffs are entitled to just compensation for a

“taking” involving their entire property as opposed to

that portion of Plaintiffs’ property that Defendant pur-

ports to acquire by condemnation.

By reason of the foregoing, Plaintiffs ask that the Court

approve this motion and that the attached amendment

39a

to Plaintiffs’ petition be considered as having been filed

upon Court approval of this motion.

MEARDON, SUEPPEL,

DOWNER & HAYES

By: /s/ William L. Meardon

WILLIAM L. MEARDON

122 South Linn Street

lowa City, Iowa 52240

Telephone: 319/339-9222

Attorneys for Plaintiffs

Copy to:

David Kk. Brown

Hayek, Hayek, Hayek & Holland

sremer Building

120-1/2 East Washington Street

Iowa City, lowa 52240

40a

IN THE IOWA DISTRICT COURT

IN AND FOR JOHNSON COUNTY

No. 50400

DEAN A. FITZGARRALD and PHYLLIS FITZGARRALD,

Plaintiffs,

VS.

THE CITY OF IOWA City, Iowa,

Plaintiffs,

AMENDMENT TO PETITION FOR

WRIT OF MANDAMUS

Plaintiffs having obtained leave of Court amend their

petition as follows:

1. By adding thereto the following:

15. The enactment by the Defendant of the 34:1

approach slope for Runway 6 together with

Defendant’s condemnation proceedings now on

file constitute a taking of Plaintiffs’ entire

property not limited to the avigation easement

sought by Defendant through condemnatory

proceedings.

i6. The action of the Defendant in adopting the

approach slope ordinance and increasing the

length of Runway 6 as well as the enactment

of a “clear zone” encompassing all but slightly

more than 7,000 square feet of Plaintiffs’ prop-

erty constitutes a “taking” of Plaintiffs’ prop-

erty rights over their entire property for which

Plaintiffs are entitled to compensation under

the Fifth and Fourteenth Amendments of the

Constitution of the United States and Section

4la

18 of Article 1 of the Constitution of the State

of Iowa.

17. The conduct of the Defendant in enacting the

ordinances referred to above was taken without

proper investigation of or concern for the prop-

erty interests of the Plaintiffs.”

2. By deleting the existing prayer of Plaintiffs’ peti-

tion now on file and inserting in lieu thereof the follow-

ing:

“By reason of the foregoing, Plaintiffs ask that a

writ of mandamus issue commanding the Defendant

to forthwith institute condemnation procedures to

acquire an avigation easement over Plaintiffs’ entire

property except for that portion thereof being ac-

quired in fee (1.18 acres) rather than the avigation

easement which Defendant seeks over only a portion

of Plaintiffs’ property as proposed by the Defendant,

and that the Plaintiffs be granted further auxiliary

relief as may be proper and Defendant be ordered to

pay the costs of this action including a reasonable

attorney’s fee (Exhibit “C” attached to the original

petition is made « part hereof).”

MEARDON, SUEPPEL,

DOWNER & HAYES

By: /s/ Wiliiam L. Meardon

WILLIAM L. MEARDON

122 South Linn Street

Iowa City, Iowa 52240

Telephone: 319/338-9222

Attorney for Plaintiffs

Copy to:

David E. Brown

Hayek, Hayek, Hayek & Holland

Bremer Building

120-1/2 East Washington Street

Iowa City, Iowa 52240

42a

IN THE IOWA DISTRICT COURT

IN AND FOR JOHNSON COUNTY

No. 50400

DEAN A. FITZGARRALD and PHYLLIS FITZGARRALD,

Plaintiffs,

vs.

THe City OF IOWA City, Iowa,

Defendant.

RULING

| Filed Nov. 1, 1990]

Trial was held on August 7 and 8, 1990. Plaintiffs,

Phyllis and Dean Fitzgarrald, were represented by Wil-

liam Meardon. The City of Iowa City was represented by

David Brown. Johnson County was represented by Pat-

rick White. This case concerns the airport zoning ordi-

nance and a subsequent amendment to it promulgated by

Towa City and Johnson County. For the purpose of this

opinion, the City and County will be jointly referred to as

“Municipality”. The Iowa City Airport has three run-

ways; however, only one of these runways affects the

Fitzgarrald property. This is runway number 6 and un-

less otherwise specifically noted in this opinion, the term

runway refers to number 6.

FACTS

The Fitzgarralds own a tract of land to the southwest

of Iowa City. To their southwest lies the Iowa City

Municipal Airport. When the Fitzgarralds purchased

their property in the late 1940s, the airport was already

in existence and operating. Besides the Plaintiffs’ home,

43a

they operate a mobile home court on the land in issue.

Prior to the airport zoning ordinance (effective 1984),

the Fitzgarralds operated Use mobile home court as a

nonconforming use to the then existing county zoning

ordinance. In the late 1970s, the Fitzgarralds applied to

the County Board of Adjustment for permission to build

a motel on their property. Their resquest was denied.

They have not attempted to make any other use of their

property since that time to the present.

In 1984, the municipality enacted the airport zoning

ordinance. It provided, among other things, for a “clear

zone’ at the end of the runway. The Fitzgarrald prop-

erty is in the clear zone. The clear zone takes into ac-

count the need for aircraft not to have obstructions in

their path while taking off or landing. There are height

restrictions in this zone based on a 34 to 1 ratio; that is,

the need to have one foot of elevation for every hori-

zontal 34 feet from the end of the runway. The 1984

ordinance placed these height restrictions on the Plain-

tiffs’ property (among others) based on a proposed run-

way extension of 1,000 feet from the old runway. This

was done in anticipation of lengthening the runway to

allow for particular instrument flight. Under the 1984 re-

strictions, the Plaintiffs’ home, as well as a number of

mobile homes in their court, were above the 34 to 1

measurement and constituted obstructions within the clear

zone. The 1,000 foot extension was never completed. An

extension of 355 feet from the existing runway was

added, and in 1990, the municipality amended its ordi-

nance to coincide with the fact that the runway would

not be extended beyond 355 feet. This reduced the num-

ber of structures on the Fitzgarrald property which were

obstructions within the clear zone. Prior to the airport

zoning ordinance, the Fitzgarrald property had been zoned

as residential. Their use of the property as a mobile

home court was allowed to continue as a nonconforming

use. There was no amortization clause in the ordinance

which required its termination following a specific period

44a

of time and the nonconforming use may continue indefi-

nitely.

Prior to the enactment of the airport zoning ordinance,

there were federal restrictions on clear zone property

(such as Fitzgarralds) as the result of Federal Aero-

nautics Administration rules and regulations. The FAA

made it clear to local authorities that local zoning ordi-

nances should be promulgated to conform with federal

regulations. Subsequently, the municipality enacted the

1984 airport zoning ordinance to do exactly that. Among

the proscribed uses to which property such as Fitzgar-

ralds could be put under the federal regulations were

uses where there would be congregations of people. The

municipality attempted to list specific uses where people

might congregate and prohibit such uses by the ordinance.

In seeking FAA approval of its ordinance, the municipai-

ity believed it needed to condemn an avigation easement

over Fitzgarralds’ land. Thus, it began condemnation

proceedings for two such easements. The Fitzgarralds

contested the condemnation proceedings, and they were

Subsequently ruled invalid by the Iowa District Court.

In the meantime, the FAA approved the municipal ordi-

nance and deemed it satisfactory without the condemna-

tion of an avigation easement. Having FAA approval, the

municipality abandoned the condemnation proceedings.

The 1984 ordinance provided for an Airport Board of

Adjustment to determine whether or not exceptions or

variances could be allowed under the ordinance. Fitz-

garralds did not use this procedure to seek any relief

from the ordinance. This is because the Fitzgarralds

have not attempted or intended to do anything differently

with their property. When the 1990 amendment was

passed, it reduced the height restrictions affecting the

Fitzgarrald property and also provided that it would not

be necessary to seek a variance or exception through a

local Board of Adjustment if the FAA gave approval of a

use landowners requested for their property. The munici-

———<<<oe- —

45a

pal airport zoning ordinance was drafted to conform to

FAA regulations. Landowners, such as the Fitgarralds,

who were located off of the end of a runway, could not

use their property in a manner prohibited by the FAA.

That is, even if the municipal airport zoning ordinance

had not been enacted, the Fitzgarralds would have to

have FAA approval before they could alter the use of

their property. The airport zoning ordinance merely as-

similated the FAA restrictions into a municipal code and

did not tighten the restrictions on the Fitzgarrald prop-

erty any more than was already done by the FAA regu-

lations.

Although the Fitzgarralds believe the extension of the

runway by 355 feet has resulted in increased air traffic,

the record indicates otherwise. The runway is not the

most heavily used runway due to its direction. Prevailing

winds in the Iowa City/Johnson County area are from

the northwest and runway 6 is not used under such wind

conditions.

The FAA has promulgated for the safe operation of

airports and air traffic. In doing so, it has limited the

use to which people, who reside near airports, may make

of their property. These regulations clearly provide for

the safety of persons who occupy land near airports as

well as for the pilots and passengers who are flying and

or taking off from municipal airports.

In short, the Fitzgarralds purchased their property

when the airport was in existence and situated immedi-

ately next to them. They began their business as mobile

home court operators prior to the enactment of the air-

port zoning ordinance and have been able to continue

that use up to the present time. They are able to con-

tinue that use into the indefinite future. They have not

intended or attempted to change the use of their property

since the enactment of the airport zoning ordinance. The

ordinance(s) have not had an effect on their property

46a

and have not placed any morc restrictions on their land

than was already in place by the FAA.

CONCLUSIONS OF LAW

A mandamus action is a recognized vehicle to compel

condemnation proceedings when there has been a taking

of private property for public use without compensating

the owners. Hammer v County of Ida, 231 N.W. 2d 896,

902 (Iowa 1975). The “taking” doctrine is based on the

constitutional principle that government cannot take pri-

vate property for public use without paying just compen-

sation. Iowa Const.. art. I, Section 18.

The issue in this case is whether or not the municipal-

ity’s promulgation of the airport zoning ordinance in 1984

and/or the amendment to it in 1990 takes Fitzgarrald’s

property for public use without just compensation. As

noted in the court’s Findings of Fact, there have been

few, if any, restrictions placed on Fitzgarrald’s property

by the municipality because the property was already

regulated under FAA rules and regulations. A “taking”

which would require the municipality to proceed under

eminent domain does not require the appropriation of a

fee interest but it does require that the landowners be

substantially deprived of the use and enjoyment of their

property. Osborn v City of Cedar Rapids, 324 N.W. 2d

471 (Iowa 1982). Diminution in value of land by virtue

of governmental action, standing alone, does not establish

constitutional “taking” of the land. Scott v City of Sioux

City, Iowa, 736 F. 2d 1207, cert. denied, 471 U.S. 1003

(C.A. Iowa 1984). The municipality’s use of its eminent

domain power involves taking property for public use,

thus requiring just compensation, whereas zoning ordi-

nances involve control and regulation of private property

for public good and may be exercised without payment

of compensation. See Easter Lake Estates, Inc. v Poll:

County, 444 N.W. 2d 72 (Iowa 1989). Only if the use of

police power substantially deprives the owner of the

47a

property’s use and enjoyment is there a compensable

taking. /d. at 75-6. Jn determining whether or not there

has been a “taking” as opposed to a regulation and restric-

tion of use, the court must weigh the legitimate interests

of the private property owner and the government. The

“vested rights concept” is part of the balancing of the

respective interests of the property owner against those

of the general public. Kasparek v Johnson County Board

of Health, 288 N.W. 2d 511, 518 (Iowa 1980). That is,

a zoning restriction on real property may constitute a

“taking” if it has an unduly harsh impact on the owner’s

use of the property. Jd. at 517-8: In this case, the Fitz-

garralds’ use of the land has continued without inter-

ruption or disruption for many years prior to and sub-

sequent to the enactment of the airport zoning ordinance.

The court considers the fact that the Plaintiffs are not

losing their “vested rights” by virtue of the zoning regu-

lations. There has been no taking of the substantial use

and enjoyment of the property by the municipality. As

such, the zoning ordinance is not so oppressive that it re-

sults in a “taking”. See Woodbury County Soil Conserva-

tion Dist. v Ortner, 279 N.W. 2d 276 (Iowa 1979). A

property owner does not necessarily have a remedy for

compensation if a zoning regulation merely deprives the

owner of the most beneficial use of his or her property.

Kempf v City of Iowa City, 402 N.W. 2d 393 (Iowa

1987}. While there are occasions where frustration of

investment-backed expectations may amount to a “tak-

ing”, there is no evidence of any such expectation in the

case at bar. See Agins v City of Tiburon, 447 U.S. 255

(198). Zoning restrictions, when justifiable under the

police power, validly enacted and not unreasonable, are

generally held not to be a “taking” of the property for

public use without compensation. Stone v City of Wilton,

331 N.W. 2d 398, 402 (Iowa 1983). The court concludes

the airport zoning ordinances in issue are a valid exercise

of police power by Iowa City and Johnson County and

do not amount to a “taking” which would require the con-

ll LLG

48a

demnation of a avigation easement over Plaintiffs’ prop-

erty. This is based on the following capsulated list of

reasons :

1. The use the Fitzgarralds made of their property

before the enactment of the airport zoning ordinances

continues to be allowed after the enactment of the air-

port zoning ordinances.

2. The airport was in existence when the Fitzgarralds

purchased the property.

3. Plaintiffs have not contemplated a change in the

use of their property since the enactment of the ordi-

nances in issue.

4. The FAA, in fact, controls the uses to which the

property may be put.

5. Ivwa City and Johnson County have merely con-

formed to FAA regulations and the airport zoning ordi-

nance(s) is no more restrictive than the federal restric-

tions.

6. Variances and exceptions to the federal and munici-

pality restrictions are possible.

7. There has been no greater imposition on the Fitz-

garralds’ property by the 355 foot extension of the run-

way.

Based on the foregoing Findings of Fact and Conclu-

sions of Law, the court determines that there has been no

“taking” which would require the exercise of eminent

domain, and the Plaintiffs’ petition for mandamus is

denied. Costs are assessed to the Plaintiffs.

Dated this 31 day of October, 1990.

/s/ L. Vern Robinson

L. VERN ROBINSON

Judge

6th Judicial! District

49a

IN THE COURT OF APPEALS OF IOWA

No. 1-486/90-1845

| Filed Dee. 31, 1991]

DEAN A. FITZGARRALD and PHYLLIS FITZGARRALD,

¥“. Appellants,

THE CITY OF IOWA City, IOWA and

JOHNSON COUNTY, IOWA,

Appellees.

Appeal from the Iowa District Court for Johnson County

L. Vern Robinson, Judge

Plaintiffs appeal the district court denial of mandamus

relief. WRIT DENIED. ;

William L. Meardon of Meardon, Sueppel, Downer &

Hayes, Iowa City, for appellants.

David E. Brown of Hayek, Hayek, Holland & Brown,

lowa City, for appellee City of lowa City.

J. Patrick White, County Attorney, for appellee John-

son County.

Considered by Schlegel, P.J., and Sackett and Habhab,

JJ.

SACKETT, J.

Plaintiffs-appellants Dean A. Fitzgerald and Phyllis

Fitzgarrald own ten acres of land immediately south of

the Iowa City Municipa! Airport. Iowa City enacted a

zoning ordinance imposing height restrictions on plain-

tiffs’ land. Plaintiffs contended the city in enacting the

50a

ordinance took an easement across their property withouT

compensating them for the taking. Plaintiffs filed a

petition for a writ of mandamus to compel defendants-

appellees City of Iowa City and County of Johnson to

initiate eminent domain proceedings to condemn the air-

way. The trial court found there had not been a taking

and denied plaintiffs relief.

Plaintiffs have appealed, contending (1) the zoning

ordinance was a taking of their property, and (2) the

city should be directed to condemn their property and

pay them damages.

A mandamus is an equitable action, and our review is

de novo. Nowlin v. Scurr, 331 N.W.2d 394, 396 (lowa

1983); Osborn v. City of Cedar Rapids, 324 N.W.2d 471.

474 (lowa 1982).

Plaintiffs purchased the ten-acre tract located in John-

son County and southwest of the corporate limits of lowa

City in the 1940s. The Iowa City Airport was operating

at its current location. The plaintiffs’ personal residence

is located on the ten-acre tract, as is a mobile home park.

Plaintiffs’ property is zoned by Johnson County as resi-

dential. The mobile home park operates as a noncon-

forming use.

In 1984, Iowa City sought to expand the runway north-

east of plaintiffs’ property. Originally, the runway was

to be extended 1,000 feet. Ultimately the runway was

only extended 335 feet.

In 1984, lowa City and Johnson County enacted “Air-

port Zoning,” establishing airport overlay zones in which

airport hazards and incompatible uses were prohibited.

The ordinance which changed the restrictions, on the use

of plaintiffs’ land provided for a clear zone at the end of

the runway. The ordinance placed plaintiffs’ entire ten-

acre tract in the clear zone and provided for an approach

slope of 34:1, meaning for every thirty-four feet hori-

zontally from the end of the runway, the approach slope

5la

is one foot vertically. Several mobile homes and the plain-

tiffs’ personal residence were within the approach slope.

In 1987, when Iowa City was contemplating extending

the runway 1,000 feet, they sought to condemn an avia-

tion easement over 5.02 acres of plaintiffs’ land. Plain-

tiffs moved to set aside or vacate the condemnation pro-

ceedings because the condemnation notice did not. suffi-

ciently describe what the city intended to condemn. On

November 9, 1988, the trial court found the condemna-

tion could include more than the acres included in the

notice, the notice was jurisdictionally defective, and the

proceeding was null and void.

The 1,000-foot extension was never completed, but the

runway was extended 355 feet. Then, in 1990, the ordi-

nance was amended to reduce the height restrictions af-

fecting the plaintiffs’ property. The amendment con-

formed to FAA regulations. After the condemnation

was vacated, the city had decided it was not necessary to

condemn to comply with FAA regulations, because they

could comply with FAA regulations by zoning.

The plaintiffs then filed this action, contending the

amendment to the 1990 ordinance constituted a taking.

The first issue is whether the 1990 zoning ordinance

putting additional restrictions on the height of structures

plaintiffs can build on their property was a taking with-

out Just compensation.

The plaintiffs introduced evidence that since the run-

way expansion the noise from air traffic has increased,

mobile home park tenants have moved because of the

noise, the noise vibrates items in their home, and dur-

ing the fall of 1990, a large freight airplane in land-

ing flew so low the pilot could be seen from beneath

the awning of a second-floor window of their home.

Plaintiffs also produced evidence the height restric-

tions lowered the value of their property.

, ,

52a

The defendants argue there was no taking because the

plaintiffs are entitled to maintain the current uses of

their property despite the restriction of the ordinance,

the plaintiffs have made no application to develop their

property for any other use or to perform any new con-

struction, and plaintiffs have not sought a special ex-

ception or variance from the application of the airport

zoning regulations.

Plaintiffs contend the trial court should have found the

restriction imposed on their property by the zoning ordi-

nance was an easement in the airport’s favor and de-

fendant should be forced to pay for an easement at a

price established through a condemnation.

There has been a distinction made between height re-

striction zoning, recognized as a valid exercise of police

power, and air easements to protect the approaches to

airports. See 18 Hastings Law Journal 397, Airport

Zoning and Height Restrictions. There is a difference

between interference with use and enjoyment of prop-

erty by physical government activity and a regulation

of property use through zoning. See McShane v. City of

Faribault, 292 N.W.2d 258, 257 (Minn. 1980). Where

a government activity causes a definite and measurable

decrease in the value of a plaintiff’s property and inter-

feres with the current practical enjoyment of the prop-

erty, a compensable taking may have occurred. /d. See,

e.g. Alevizons v. Metropolitan Airports Comm’s, 298 Mo.

471, 216 N.W.2d 651 (1974). Regulation that goes too

far can be viewed as a taking. See Williamson Planning

Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 105 S. Ct.

3108, 3116, 87 L. Ed. 2d 126, 138 (1985). A_ public

desire to improve public condition is not enough to war-

rant achieving the desire by a shorter cut rather than

the constitutional way of paying for the change. See

Pennsylvania Coal Co. v. Mahon, 260 U.S. 395, 415-16,

43 S. Ct. 158, 160, 67 L. Ed. 322, 326 (1922); Business

53a

Ventures, Inc. v. lowa City, 234 N.W.2d 376, 382 (Iowa

1975).

A determination a governmental action constitutes a

taking is a determination the public at large, rather than

a single owner, must bear the burden of an exercise of

state power in the public interest. Agins v. Tiburon,

447 U.S. 255, 262, 100 S. Ct. 2138, 2142, 65 L. Ed. 2d

106, 112 (1980). Although no precise rule determines

when property has been taken, the question necessarily

requires a weighing of private and public interests. Jd.

However, the right to use property as one wishes is

subject to and limited by the proper exercise of police

power in the regulation of land use. Regulation does not

constitute a compensable taking unless it deprives the

property owner of all reasonable use. See McShane, 292

N.W.2d at 257. Every landowner who is in some way

limited or inconvenienced by such regulation is not nec-

essarily entitled compensation.

Property owners cannot have the advantages of the con-

venience and be paid for the undesirable effects created

by the convenience, unless the effects adversely affect his

or her property so directly and so substantially that it is

manifestly unfair to require them to sustain measurable

loss in market value which the property-owning public in

general does not suffer. See McShane, 292 N.W.2d at 259.

The ordinance here was not an ordinance arbitrating

competing land uses. The ordinance was a regulation for

the benefit of a governmental enterprise-—the Iowa City

Airport. Where the burden of governmental activity falls

on persons such as the plaintiffs, and the public receives

the advantage of the property rights without payment,

there is support for the proposition the public should pay

for the diminution in value. See Sax, Takings and the

Police Power, 74 Yale L. Rev. 36 (1964); Indiana Toll

Road Comm’n v. Jankovich, 244 Ind. 574, 193 N.E.2d 237

(1963), cert. dismissed, 379 U.S. 487, 85 S. Ct. 493, 13

L. Ed. 2d 439 (1965) ; Sneed v. County of Riverside, 218

Cal. App. 2d 205, 32 Cal. Rptr. 318 (1963) (said while

Actin

54a

height restriction zoning had been recognized as a valid

exercise of police power, there was a reluctance to extend

this reasoning to zoning for the protection of approaches

to airports—instead air easements with payment of com-

pensation appeared to be the more acceptable method of

protecting approach zones) ; Roark v. Caldwell, 87 Idaho

557, 394 P.2d 641 (1964) (public benefit in maintenance

of unencumbered approaches to an airport not sufficient

reason to justify uncompensated takings of private prop-

erty). See generally Thompson v. City of Osage, 421

N.W.2d 529, 533 (lowa 1988) (court citing Dolezal v.

City of Cedar Rapids, 209 N.W.2d 84 (lowa 1973),

(court recognized the condemnation of clearance or ob-

struction easements to provide a clear zone approach to

airports).

The trial court concluded there had been no taking.

We disagree with the trial court and determine the

ordinance as now written is a taking. Extensive and

repeated low flying, caused annoyance to the plaintiffs.

Such activities have been recognized as substantial inter-

ference with the enjoyment of property. Anderson v.

Souze, 38 Cal. 2d 825, 2438 P.2d 497 (1952).

Plaintiffs land is in a prime location for development.

Any development will be substantially curtailed by the

height restriction. The clearance is from a low of ten

feet the the westerly side of plaintiffs’ land to a high of

thirty feet at the easterly side of their land. Plaintiffs’

house penetrates the approach slope by 6.9 feet. The

zoning ordifiance does not benefit the plaintiffs as well

as the public. See Agins, 447 U.S. at 262, 100 S. Ct. at

2142, 65 L. Ed. 2d at 113.

The regulation is so onerous that it has the same

effect as an appropriation of the property through emi-

nent domain or physical possession. See Williamson, 473

U.S. at 199, 105 S. Ct. at 3123, 87 L. Ed. 2d at 147. The

zoning regulations are so limiting as to constitute a

taking.

II,

The second question is whether a writ of mandamus

should issue. The granting to airport authorities of

condemnation powers gives the airport authority the au-

thority and the responsibility to acquire adequate ease-

ments. See generally Greater Westchester Homeowners

Ass’n v. Los Angeles, 26 Cal. 3d 86, 160 Cal. Rptr. 733,

603 P.2d 1329 (1979).

Defendants agree mandamus will lie to compel con-

demnation where there has been a taking of private

property for public use within the constitutional sense

without compensating the owners. See Hammer v. County

of Ida, 231 N.W.2d 896, 902 (Iowa 1975). Mandamus is

a summary and extraordinary writ, and it will be issued

in doubtful cases, but only where the rights and duties

are clear and there is no other speedy and adequate

remedy in the ordinary course of the law. Reed v. Gay-

lord, 216 N.W.2d 327, 328 (Iowa 1974). Mandamus is

a remedy to be applied only in exceptional circumstances.

See Hewitt v. Ryan, 356 N.W.2d 230, 233 (Iowa 1984).

A claim that the application of government regulations

effects a taking of a property interest is not ripe until

the government charged with implementing the regula-

tions has reached a final decision regarding the applica-

tion of the regulation to the property at issue. William-

son, 475 U.S. at 186, 105 S. Ct. at 3116, 87 L. Ed. at

139; Hodel v. Virginia Surface Mining & Reclamation

Ass’n Inc., 452 U.S. 264, 296, 101 S. Ct. 2352, 2370, 69

L. Ed. 2d 1, 28, (1981).

Furthermore, plaintiffs have not sought to change the

use of the property. The city advances the zoning ordi-

nance provides for variances. The matter is not ripe until!

a variance has been denied. The city also has the au-

thority to repeal or modify the ordinance. The trial court

was correct in dismissing plaintiffs’ action.

Costs on appeal are taxed one-half to each party.

WRIT DENIED.

IN THE SUPREME COURT OF IOWA

No. 90-1845

Johnson County No. 50400

DEAN A. FITZGARRALD and PHYLLIS FITZGARRALD,

Plaintiffs-A ppellants,

VS.

City oF Iowa City, IOWA and

JOHNSON COUNTY, IOWA,

Dejfendants-A ppellees.

ORDER

| Filed Jan. 27, 1992]

The application(s) for further review and any resist-

ance(s) filed in the above-captioned case are hereby set

for consideration by this court without oral argument on

Friday, February 28, 1992.

Dated this 27th day of January, 1992.

THE SUPREME COURT OF IOWA

By s/ Arthur A. McGiverin

Chief Justice

57a

IN THE SUPREME COURT OF IOWA

No. 90-1845

Johnson County No. 50400

DEAN A. FITZGARRALD and PHYLLIS FITZGARRALD,

Plaintiffs-A ppellants,

VS.

CITY OF Iowa City, Iowa and

JOHNSON CouUNTY, Iowa,

Defendants-A ppellees.

ORDER

| Filed Feb. 28, 1992]

After consideration by this court en banc, further re-

view of the above-captioned case is hereby granted.

The issues presented for review will be submitted to a

division of this court during the week beginning April 6,

1992. The parties will be notified of the date and time of

submission about one month in advance.

The court will consider the previously filed papers. No

supplemental briefs will be required.

The parties will be heard in oral argument as follows:

Plaintiffs—15 minutes

Defendants—15 minutes

Plaintiffs’ reply—5 minutes.

Dated this 28th day of February, 1992.

THE SUPREME Court OF IOWA

By /s/ Arthur A. McGiverin

ARTHUR A. MCGIVERIN

Chief Justice

58a

IN THE SUPREME COURT OF IOWA :

No. 90-1845

Johnson County No. 50400

DEAN A. FITZGARRALD and PHYLLIS FITZGARRALD

Plaintiffs-A ppellants,

VS.

THE CITY OF TOWA CIty, IOWA,

Defendant-A ppellee.

ORDER

| Filed Apr. 3, 1992]

Plaintiffs-appeallants’ application for limited remand

shall be submitted with the appeal.

The parties may present arguments on the application

at their oral arguments scheduled for April 6, 1992.

Dated this 2rd day of April, 1992.

s/ Arthur A. MeGiverin

ARTHUR A. MCGIVERIN

Justice

Supreme Court of Iowa

59a

IN THE SUPREME COURT OF IOWA

No. 141/90-1845

Filed June 17, 1992

DEAN A. FITZGARRALD and PHYLLIS FITZGARRALD

Appellants,

VS.

CITY OF IOWA CIty, IOWA and

JOHNSON COUNTY, IOWA,

. Appellees.

On review from the Iowa Court of Appeals

Appeal from the Iowa District Court for Johnson

County, L. Vern Robinson, Judge.

Landowners adjacent_to municipal airport appeal from

adverse judgment in mandamus action to compel con-

demnation. The court of appeals reversed. DECISION

OF COURT OF APPEALS VACATED: DISTRICT

COURT JUDGMENT AFFIRMED.

William L. Meardon of Meardon, Sueppel, Downer &

Hayes, lowa City, for appellants.

David E. Brown of Hayek, Hayek, Holland & Brown,

Iowa City, for appellee City of Iowa City.

J. Patrick White, County Attorney, and Karen Loren-

zen, Legal Intern, for appellee Johnson County.

Considered by McGiverin, C.J., and Carter, Neuman,

Snell, and Andreasen, JJ.

50a

CARTER, J.

Plaintiffs, Dean Fitzgarrald and Phyllis Fitzgarrald,

who are landowners adjacent to the Iowa City Municipal

Airport, appeal from adverse judgment in mandamus

action to compel condemnation. The court of appeals

concluded that a taking had occurred but that plaintiffs

had not shown exhaustion of administrative remedies

under the “variance” provisions of the ordinance. We

granted further review of the court of appeals decision.

After reviewing the record and hearing the arguments

presented, we vacate the decision of the court of appeals

and affirm the judgment of the district court.

Plaintiffs own approximately ten acres of land adja-

cent to the southwest portion of the Iowa City Municipal

Airport. The airport was in operation at the same loca-

tion when plaintiffs purchased the property sometime in

the 1940s. Throughout their ownership of this property,

plaintiffs have resided in a dwelling located on the prem-

ises. In addition, they have operated a mobile home park

on the property.

The property was zoned as residential subsequent to

plaintiffs’ purchase thereof, and the mobile home park

operation has continued as a nonconforming use under

that zoning classification. Plaintiffs have attempted to

secure rezoning of the property so as to permit other

commercial uses, but those efforts have proved unsuccess-

ful. The most recent unsuccessful attempt to rezone the

property was in 1978 when plaintiffs applied to Johnson

County for rezoning to permit a motel operation.

Plaintiffs’ property is located at the end of airport

runway 6-24. In November 1984, the Iowa City Airport

Commission undertook a project designated as “Runway

6-24 Extension Project.” This project contemplated that

runway 6-24 would be extended 1000 feet toward plain-

tiffs’ property. The extension required the taking of

1.18 acres of plaintiffs’ land. To help facilitate this

project, the City of lowa City and Johnson County in

6la

1984 jointly adopted a zoning ordinance prescribing height

and use restrictions for property surrounding the air-

port.

The 1984 ordinance proscribed structures from pene-

trating an “Approach Overlay Zone,” which is a plane

beginning 200 feet from the end of a runway and extend-

ing skyward at a slope of thirty-four horizontal feet to

one vertical foot (34:1 slope). This “approach slope” for

the proposed 1000-foot extension of runway 6-24 pene-

trated the plaintiffs’ home and some of their ground.

Preexisting structures that did not conform to the ordi-

nance were permitted to remain without alteration as

nonconforming uses.

The ordinance also provided for a “Clear Overlay

Zone,” which places resrictions on uses for property lo-

cated beneath it. Plaintiffs’ property is within the clear .

zone. The ordinance provides:

Use limitations. No use shall be permitted in the

OCL Zone in which there is connected therewith a

building which according to the 1982 edition of the

Uniform Building Code, has an occupancy rating of

90 square feet of floor area per person or less. In

addition, the following uses shall not be permitted:

(a) Campgrounds.

(b) Fairgrounds.

‘e) Hospitals and institutions.

(d) Motels and hotels.

(e) Nursing and custodial home.

(f) Residential uses.

(g) Restaurants and similar eating and drinking

establishments.

(h) Sanitary landfills.

(1) Schools, including nurseries, prekindergartens

and kindergartens.

a ls ae

62a

(j) Stadiums.

(k) Storage of fuel or other hazardous materials.

(1) Theaters.

Exceptions and variances from the use limitations may

be allowed in some situations and a special board of

adjustment has been established to consider such applica-

tions. To a large extent, the ordinance incorporated re-

strictions already contained in Federal Aviation Admin-

istration (FAA) regulations applicable to property sur-

rounding the airport. See 14 C.F.R. part 77 (1984).

In August 1986, the city initiated an eminent domain

proceeding to acquire 1.18 acres of plaintiffs’ property

in fee for the runway extension. The award in that pro-

ceeding is the subject of an appeal in a separate action

not affecting the present litigation. In December 1986,

plaintiffs filed a mandamus action demanding that the

city also condemn an avigation easement to permit flights

over their property.’ In October 1987, prior to adjudica-

tion of the mandamus action, the city did initiate eminent

demain proceedings to obtain such an easement. That

action was ultimately voided by district court order as

a result of a faulty description of the interests being

condemned. No further action has been taken by the

city to acquire an avigation easement over plaintiffs’

lands.

Ultimately, runway 6-24 was only extended 355 feet in-

stead of the 1000-foot extension originally contemplated.

The 1984 zoning ordinance was amended to accommodate

this change. The primary result of these amendments

was to change the height restrictions of the ordinance to

reflect the shorter runway. Under the amended ordinance,

plaintiffs’ dwelling penetrates 6.9 feet into the specified

1JIn Dolezal v. City of Cedar Rapids, 209 N.W.2d 84, 87 (Iowa

1973)( we described an avigation easement as one that permits

free flights over land including those so low and frequent as to

amount to a taking of property.

63a

approach slope. Like the 1984 ordinance, the amended

ordinance allows plaintiffs’ nonconforming uses to con-

tinue without alteration.

When the city failed to reinitiate the aborted attempt

to condemn an avigation easement, plaintiffs again pressed

their mandamus action. They also amended that action

to allege that the zoning ordinances were so restrictive

of property uses that they constitued a regulatory taking

for which compensation was due plaintiffs.

After hearing the evidence presented at the trial of

the mandamus action, the district court concluded that

the ordinances do not constitute a compensable taking of

plaintiffs’ property. The court listed six reasons for

reaching that conclusion: (1) the airport was in existence

when plaintiffs purchased the property in the 1940s; (2)

plaintiffs’ use of their property before the enactment

of the airport zoning ordinances continues to be permitted

without alteration; (3) plaintiffs’ mobile home operation

was a nonconforming use under prior zoning ordinances

and thus could not be substantially altered irrespective

of the challenged airport zoning regulations; (4) plain-

tiffs have not contemplated a change in the use of their

property since the enactment of the ordinance in issue;

(5) in the absence of the local zoning ordinances, FAA

regulations applicable to land use would impose substan-

tially the same restrictions; and (6) variances and ex-

ceptions to the federal and municipal restrictions are

possible.

The district court also considered and rejected plain-

tiffs’ claim that an avigation easement must be con-

demned by the airport authority because of a direct physi-

cal invasion of plaintiffs’ lands by overflying aircraft.

This claim was based on allegations that unreasonable

noise and vibrations were occurring because takeoffs and

landings to and from the extended runway were now

more proximate to plaintiffs’ property. The court found

the evidence that, in fact, there were fewer flights over

er id

64a

plaintiffs’ lands after the runway extension was com-

pleted than there were before that project was initiated.”

Other facts relevant to the case will be considered in our

discussion of the legal issues that have been presented.

I. The Regulatory Taking Issue.

Mandamus is an equitable action. Phelps v. Board of

Supervisors, 211 N.W.2d 274, 277 (lowa 1973); Iowa

Code § 661.3 (1985). Our review is thus de novo. Iowa

R. App. P. 4. We must first consider whether the district

court was correct in deciding the regulatory taking issue

adversely to plaintiffs. Based on our de novo review of

the evidence and application of the legal principles that

we next discuss, we conclude that it was. The court of

appeals erred in concluding otherwise.

Although action vy the state or its political subdivi-

sions pursuant to the police power and the power of emi-

nent domain were once thought to be separate and com-

partmentalized powers that did not overlap, this view

has now been largely abandoned. See 2 A. Gaudio, The

American Law of Real Property $17.05, at 87-102

(1991). We have recognized the “inevitable danger” to

private property that would exist if the “just compen-

sation” requirements of the fifth amendment to the fed-

eral Constitution and article I, section 18 of the Iowa

Constitution could be circumvented through the guise of

police power regulations. Business Ventures, Inc. v. Iowa

City, 234 N.W.2@ 376, 381-82 (Iowa 1975).

We have previous! yobserved that:

[A] “taking” does not necessarily mean the appro-

priation of the fee. It may be anything which sub-

stantially deprives one of the use and enjoyment of

his property or a portion thereof. ... |T]here has

*The court of appeals apparently found that the overflights

were a sufficient invasion to constitute a taking separate and apart

from the alleged regulatory taking.

65a

been a taking if, as plaintiffs contend, there has been

a substantial interference with their use and enjoy-

ment of their property....

Phelps, 211 N.W.2d at 276 (citations omitted). Although

not every policy power regulation that restricts some

beneficial use of property creates a compensable taking,

see Stone v. City of Wilton, 331 N.W.2d 398, 404 (Iowa

1983), the frustration of investment-backed expectations

by zoning ordinances may constitute a taking for which

compensation is due. See, e.g., Agins v. City of Tiburon,

447 U.S. 255, 260, 100 S. Ct. 2138, 2141, 65 L. Ed. 2d

106, 112 (1980) (application of general zoning law to

particalar property affects a taking if it denies the eco-

nomically viable use of the land) ; Osborn v. City of Cedar

Rapids, 324 N.W.2d 471, 474 (Iowa 1982) (action taken

for public good that places uncompensated burden upon

plaintiff's property not shared by public at large may

constitute taking) ; Woodbury County Soil Conservation

Dist. v. Ortner, 279 N.W.2d 276, 278 (lowa 1979) (even

exercise of police power may amount to taking if it

deprives owner of substantial use and enjoyment of

property).

We must test the ordinances upon which plaintiffs’

“taking” claim is based against the legal principles we

have just discussed. Arguably, these use restrictions are

in several aspects so restrictive of beneficial property uses

that a taking might be found to have occurred if the uses

prescribed had otherwise been available to plaintiffs. We

need not determine that issue, however, because, as the

district court correctly found, most of the uses proscribed

by the airport zoning ordinances enacted in_ 1984 and

later amended had also been proscribed for many years

under previous zoning ordinances and FAA regulations.

The uses that plaintiffs have previously made of this

property are preserved to them under the challenged air-

port zoning ordinance as nonconforming uses. Moreover,

plaintiffs have failed to demonstrate that, absent the chal-

Sa onam einen tae

66a

lenged airport zoning ordinance, other feasible uses of

the property would be available to them or to a potential

buyer. To the extent plaintiffs have suggested other uses

that might be made of their property, those suggested

activities would be prohibited in any event under the

property’s basic residential zoning classification. Plain-

tiffs failed to show a reasonable likelihood of a change in

that zoning classification. Given these circumstances, we

are unable to conclude that the airport zoning ordinances

upon which plaintiffs’ “taking” claim is based have frus-

trated any investment-backed expectation for the use of

their land. The district court’s rejection of plaintiffs’

regulatory taking claim was correct.

Il. The Physical Invasion Claim.

Next, we take up the matter of plaintiffs’ claim that

overflying aircraft so adversely affects the use and enjoy-

ment of their property that a taking has resulted. In this

regard, we note the Supreme Court’s admonition that

la] ‘taking’ may more readily be found when the

interference with property can be characterized as

a physical invasion by the government ... than when

interference arises from some public program adjust-

ing the benefits and burdens of economic life to pro-

mote the common good.

Penn Cent. Transp. Co. v. City of New York, 488 U.S.

104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631, 648

(1978) (citation omitted). In some circumstances, over-

flying aircraft may amount to a physical invasion. See

United States v. Causby, 328 U.S. 256, 261, 66 S. Ct.

1062, 1065, 90 L. Ed. 1206, 1210 (1946).

We tacitly recognized mandamus as a procedural de-

vice to compel condemnation of an avigation easement in

Dolezal, 209 N.W.2d at 87-88. In that case, we recog-

nized that an avigation easement may be required when

flights are so low and so frequent as to amount’to a tak-

eee

67a

ing of property. Jd. at 87. Of course, every noise or

interference with property as a result of overflying air-

craft does not constitute a taking. Landowners must

endure some level of inconvenience, discomfort, and loss

of peace and quiet that can be reasonably anticipated

by members of a progressive society. But, as the Minne-

sota court observed,

when those interferences reach the point where they

cause a measurable decrease in property market

value, it is reasonable to assume that, considering :

the permanency of the air flights, a property right

has been, if not “taken or destroyed,” at the very

least “damaged,” for which our constitution requires

that compensation be paid.

Alevizos v. Metropolitan Airports Comm’n, 298 Minn.

471, 486-87, 216 N.W.2d 651, 662 (1974). In such cases,

the right to recovery*is not for the nuisance that must

be endured but for the loss of value that has resulted.

Although some courts have concluded that the issue of

whether a taking has occurred in airport overflight cases

is an issue of law for the mandamus court to decide in

the first instance, see, e.g., In re Ramsey, 31 Pa. Commw.

182, 186, 375 A.2d 886, 888-89 (1977), we believe the

better rule to be that mandamus court should only deter-

mine whether a factual issue exists that would permit a

award to find an intrusion that produced a measurable

decrease in the property’s market value. The mandamus

court may find the evidence insufficient as a matter of

law to compel the summoning of a condemnation commis-

sion, but that court is simply not called upon to rule as a

matter of law that a taking has occurred. To do so would

create an undesirable issue preclusion problem in a later

trial of a condemnation proceeding. It is for the con-

demnation commission or trial jury to fix the loss of

value, if any, suffered by the property owner. Phelps,

211 N.W.2d at 276.

i. ttwswsti—‘CsOOCisCi

68a

Ultimately, in determining whether there has been a

substantial interference from overflying aircraft so as to

constitute a taking, the inquiry focuses entirely on injury

to market value. If such injury is in fact demonstrated,

there is no de minimis rule. As a Washington court has

observed,

Therefore, the balance of interest inherently struck

in this type of action comes about in the following

manner. If the individual is unusually sensitive, and

sustains a greater injury than might be suffered by

the general public from such interference, the public

interest in maintaining the flights leaves him to one

remedy—to sell his property and move. This is no

different than it would be had his land been con-

demned for forced sale to the state. But whichever

way the state exacts such a “sale,” it must pay the

individual the amount he suffers in the diminishment

of the value of his land .... Such lowering of mar-

ket value reflects not the personal injury to the indi-

vidual, but the lesser desirability of the land to the

general public.... ;

... |W here there is only an injury of the extent

such that it should be called or labeled “incidental,”

no measurable or provable decline in market value

could be expected traceable to the flights. Recovery

would not be forthecming, but not becavse of some

arbitrary rule set for convenience in administration

of justice, but because of an inability to prove dam-

ages according to the common and well understood

rules of suit. Second, and even more significant to

the balancing problem, the smaller the provable de-

cline in market value, the slighter the burden cast

upon the public in paying for it. Surely the protec-

tion of the publie interest does not entail the refusal

of small claims on the ground that the burden to

the public is not great enough to pay for!

Martin v. Port of Seattle, 65 Wash. 2d 309, 318, 391

P.2d 540, 546-47 (1964).

69a

We accept plaintiffs’ argument that, on their physical

invasion claim, they were not required to try their emi-

nent domain case in full in the mandamus action. The,

were only required to present enough evidence to generate

a fact issue as to whether the overflying aircraft pro-

duced “‘a measurable decrease in property value.” How-

ever, in reviewing the evidence presnted at trial, we find,

as did the district court, that the evidence falls short in

this regard.

Plaintiffs appear to have contended at one point in the

litigation that the thirty-four horizontal feet to one verti-

cal foot approach slope constitued the flight path of

aircraft over their property on takeoffs and landings.

The evidence reveals, however, that the approach slope

is merely a clearance zone and bears no relationship to

the actual altitude of planes over the land to which the

approach slope applies. The record is devoid of any

evidence showing either the frequency or approximate

altitudes of planes flying over plaintiffs’ lands.

Defendants presented evidence that planes were taking

off and landing with approximately the same frequency

and altitude before and after the runway extension.

Three pilots who testified for defendants indicated that

after the runway was extended they altered their ap-

proach turns to runway 6-24 so as to keep farther away

from plaintiffs’ property. Two of these pilots conceded,

however, that planes landing on runway 6-24 would now

pass over plaintiffs’ lands at lower altitudes as a result

of the 355-foot runway extension.

Altheugh plaintiff Phyllis Fitzgarrald testified as to

some inconvenience from airport noise, she did not fix

the frequency of such occurrences nor indicate that this

occurred on a regular basis. She testified that some ten-

ants of the mobile home park had left after the runway

was extended, but admitted that she had no personal

knowledge as to the reason why. No other evidence was

offered concerning loss of tenants at the park. Most sig-

70a

nificantly, for purposes of plaintiffs’ physical invasion

claim, all of their loss-of-value evidence related to the

regulatory taking claim that we have previously rejected.

None of the witnesses at trial testified that overflying

aircraft adversely affected the market value of plaintiffs’

property. We conclude that there is a deficiency of proof

as to the element of ‘measurable decrease in market

value” due to overflying aircraft.

We have considered al! issues presented and conclude

that the decision of the court of appeals should be vacated

and the judgment of the district court affirmed.

DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT JUDGMENT AFFIRMED.

Tla

IN THE SUPREME COURT OF IOWA

No. 90-1845

DEAN A, FITZGARRALD and PHYLLIS FITZGARRALD.

Plaintiffs-A ppellants,

THE CITY OF IOWA CIty, IoWA and

JOHNSON COUNTY, IOWA.

Defendants-A ppellees.

ORDER

| Filed Oct. 2, 1992]

Aftr the filing of our opinion in this appeal on June

17, 1992. the appellant filed a petition for rehearing.

Pursuant to Iowa Rule of Appellate Procedure 27/4).

we specifically requested that both appellees file a response

to that petition.

After considering the issues presented in the petition

for rehearing and the appellees’ responses thereto, we

hereby grant the petition for rehearing. The opinion filed

in this case on June 17, 1992, which has not been pub-

lished, is withdrawn.

The issues on further review of the court of appeals

decision in this case will be resubmitted to this court,

without oral argument, on Wednesday, October 14, 1992.

This submission will be on the briefs and arguments

previously filed by the parties and on the written argu-

ments presented with respect to the petition for rehearing.

whe

(aa

Dated

his 2nd day of (¢ lectober, 1992.

SUPREME CourtT OF IOWA

Arthur A. MeGiverin

ARTHUR A. MCGIVERIN

(Chief Justice

73a

IN THE SUPREME COURT OF IOWA

No. 90-1845

DEAN A, FITZGARRALD and PHYLLIS FITZGARRALD,

A ppe llants,

VS.

THE CITY OF IOWA Crry. IOWA, and

JOHNSON CouNTY, Iowa.

Appr aE es.

ORDER

| Filed Dec. 23, 1992]

After consideration by the court, en banc, appellants’

Petition for Rehearing in the above-captioned case is

hereby overruled and denied.

Dated this 23rd day of December, 1992.

THE SUPREME Court oF Iowa

S/ Arthur A. McGiverin

ARTHUR A. MCGIVERN

Chief Justice

74a

CITY OF IOWA CITY

Civic Center 410 E. Washington St.

lowa City, lowa 52240

(319) 356-5000

STATE OF LOWA )

JOHNSON COUNTY

I, Marian K. Karr, City Clerk of the City of Iowa

City, do hereby certify that the Ordinance attached

hereto is a true and correct copy of the Ordinance No.

84-3211 which was passed by the City Council of Iowa

City, lowa, at a regular meeting held on the 6th day of

November, 1986, all as the same appears of record in

my office.

Dated at Iowa City, Iowa, this 6th day of August,

L9gQ.,

s Marian K. Karr

MARIAN K. KARR

City Clerk

75a

ORDINANCE NO. 84-3211

AN ORDINANCE OF THE CITY COUNCIL OF IOWA

CITY AND THE BOARD OF SUPERVISORS OF

JOHNSON COUNTY, ADOPTED UNDER THE PRO-

VISIONS OF CHAPTER 329°OF THE IOWA CODE,

ADOPTING ZONING REGULATIONS FOR THE PRE-

VENTION OF HAZARDS AND INCOMPATIBLE

USES SURROUNDING THE IOWA CITY MUNICI-

PAL AIRPORT.

BE IT ORDAINED BY THE CITY OF IOWA CITY

AND BY JOHNSON COUNTY, IOWA:

SECTION I. PURPOSE. The purpose of this ordinance,

to be known as the Johnson County/Iowa City Airport

Zoning Ordinance, or the Airport Zoning Ordinance, is

to exercise to the fullest extent possible the powers

granted to municipalities under Chapter 329 of the Code

of Iowa (1983) relating to the restriction of airport

hazards in the vicinity of airports by establishing airport

overlay zones in which airport hazards and incompatible

uses are prohibited.

SECTION II. FINDINGS. The City Council of Iowa

City and the Board of Supervisors of Johnson County

find that airport haazrds and incompatible uses would

endanger the lives and property of users of the Iowa

City Municipal Airport, and occupants of land and other

persons in its vicinity, and also would tend to destroy

or impair the utility of the airport and the public in-

vestment therein; accordingly, each municipality does

hereby declare that:

(a) The creation or establishment of an airport hazard

is a public nuisance causing potential injury to those

served by the airport;

(b) It is necessary in the interest of the public health,

safety, and general welfare that creation of airport

hazards and the establishment of incompatible uses

(Cc)

(d)

{e)

(f)

76a

of land be prevented, and that this be accomplished,

by proper exercise of the police power;

The prevention of the creation or establishment of

airport hazards and incompatible uses, and the

elimination, removal, alteration, mitigation or mark-

ing and lighting of existing airport hazards are pub-

lie purposes for which a municipality may raise and

expend public funds, as an incident to the operation

of the airport, to acquire land or property interests

therein;

Because of the propensity of sanitary landfills for

attracting birds, which in turn are hazardous to air-

craft in flight, landfills are not considered compati-

ble with airport operations;

It is highly desirable that there be no structures or

natural objects or traverseways within the airport

clear zones; and

Neither municipality shall become liable for the ex-

penditure of its public funds unless such expenditure

shall have been approved in advance by its govern-

ing body.

SECTION III. DEFINITIONS. The following defini-

tions only apply in the interpretation and enforcement

of the airport overlay zones.

(a)

(b)

Airport. The Iowa City Municipal Airport.

Airport elevation. The highest point of the airport’s

usable landing area measured in feet above mean

sea level, which elevation is established to be 661

feet.

Airoprt hazard. Any structure, tree or use of land

which would exceed the Federal obstruction stand-

ards as contained in Part 77 -Subpart C of the Code

of Federal Regulations, as revised March 4, 1972

(the “Federal Aviation Regulations” or “FAR”),

(f)

ig)

(h)

77a

and which obstructs the airspace required for the

flight of aircraft and landing or takeoff at the air-

port or is otherwise hazardous to such landing or

taking off of aircraft.

Airport Layout Plan. A drawing in the Airport

Master Plan depicting existing and future property

lines and facilities including but not limited to run-

Ways, taxiways, aprons, buildings and clear zones.

The Airport Lavout Plan is a component part of

the Master Plan.

Airport Master Plan. A comprehensive plan for de-

velopment of the airport over a 20 year time period.

The Master Plan includes among other things, avia-

tion activity forecasts, determinations of needed air-

port facilities, a financial plan and proposed time

schedule for developing facilities included in the Mas-

ter Plan, and recommendations for use of land on

and adjacent to the airport.

Airport Overlay Zoning Map. The charts or maps

of the Iowa City Municipal Airport upon which the

airport overlay zones are depicted. Copies of such

map are on file in the office of the City Clerk of

Iowa City, and in the office of the Johnson County

Auditor.

Airport primary surface. A surface longitudinally

centered on a runway which extends 200 feet be-

yond the end of a runway. The width of the primary

surface of a runway shall be that width prescribed

in Part 77 of the Federal Aviation Regulations for

the most precise approach existing or planned for

either end of that runway. The elevation of any

point on the primary surface is the same as the ele-

vation of the nearest point on the runway centerline.

Airspace height. For the purpose of determining the

height limits in all zones set forth herein and shown

on the Airport Overlay Zoning Map, the datum shall

78a

be mean sea level elevation unless otherwise speci-

fied.

(1) Inner edge. The inner boundary of an approach or

clear zone which is located 200 feet out from the

physical end of a paved runway (except as other-

wise noted). This inner edge is perpendicular to the

runway center line.

(j) Instrument runway. A runway with an existing in-

strument approach procedure or for which an in-

strument approach procedure has been approved or

planned.

(k) Light lane. An area cn the approach end of a run-

way reserved for the installation of light bars to re-

duce landing minimums on instrument approaches.

Usually 400 feet by 1600 feet with a slope of 50

to 1.

(1) Minimum descent altitude. The lowest altitude, ex-

pressed in feet above mean sea level, to which de-

scent is authorized on final approach or during circle-

to-land maneuvering in execution of a standard in-

strument approach procedure and where no elec-

tronic glide slope is provided.

(m) Minimum enroute altitude. The altitude in effect

between radio fixes which assures acceptable naviga-

tional signal coverage and meets obstruction clear-

ance requirements between those fixes.

(n) Minimum obstruction clearance altitude. The speci-

fied altitude in effect between radio fixes on VOR

airways, off-airway routes, or route segments which

meets obstruction clearance requirements for the en-

tire route segment and which assures acceptable nav-

igational signal coverage within twenty-two (22)

miles of a VOR.

(0) Runway. A defined area on an airport prepared for

landing and takeoff of aircraft along its length.

rae

[LC eee

79a

(p) Visual runway. A runway intended solely for the

operation of aircraft using visual approach prece-

dures with no straight-in instrument approach pro-

cedure and no instrument designation indicated on

an FAA approved airport layout plan or on any

planning document submitted to the Federal Avia-

tion Administration (FAA) by compecent authority. ‘

SECTION IV. AIRPORT ZONES AND AIR-SPACE

HEIGHT LIMITATIONS. In order to carry out the pro-

visions of this Section, there are hereby created and es-

tablished certain zones which are depicted on the Airport

Overlay Zoning Map. A structure located in more than

one (1) zone of the following zones is considered to be

only in the zone with the more restrictive height limita-

tion. The various zones are hereby established and de-

fined as follows:

(a) Horizontal Overlay (OH) Zone.

(1) Defined. The land lying under a_ horizontal

plane 150 feet above the established airport ele-

vation, the perimeter of which is constructed by

swinging ares of 10,000 foot radii from the

center of each end of the primary surface of

each runway and connecting the adjacent ares

by lines tangent to those arcs.

(NOTE: The radius of the are specified for

each end of a runway will have the same arith-

metical value. That value will be the highest

determined for either end of the runway. When

a 5,000 foot are is encompassed by tangents con-

necting two adjacent 10,000 foot ares, the 5,000

foot are shall be disregarded on the construction

of the perimeter of the horizontal surface. )

(2) Height limitation. No structure shall exceed 150

feet above the established airport elevation in

80a

the OH Zone, as depicted on the Airport Overlay

Zoning Map.

(3) Use limitation. Sanitary landfills shall not be

permitted in the OH Zone.

b) Conical Overlay (OC) Zone.

(1) Defined. The land lying under a surface extend-

ing outward and upward from the periphery of

the horizontal surface of the OH zone at a slope

of 20 to 1 for a horizontal distance of 4,000 feet.

(2) Height limitation. No structure shall penetrate

the conical surface of the OC Zone, as depicted

on the Airport Overlay Zoning Map.

(3) Use limitation. Sanitary landfills shall not be

permitted in the OC Zone.

(ec) Approach Overlay (OA) Zone.

(1) Defined. The land lying under a surface longi-

tudinally centered on the extended runway cen-

terline and extending outward and upward from

each end of the primary surface. (NOTE: An

approach surface is applied to each end of each

runway based upon the type of approach avail-

abie or planned for that runway end. )

a. The inner edge of the approach surface is:

1. 500 feet wide for runways 12, 17, 30 and

35.

2. 1000 feet wide for runways 6 and 24 (the

inner edge for runway 6 is 1200 feet

from the existing pavement.

b. The outer edge of the approach surface is:

1. 1,500 feet wide for runways 12 and 17.

2. 3,500 feet wide for runways 6, 30 and 35.

3. 4,000 feet wide for runway 24.

8la

c. The approach surface zone extends for a hori-

zontal distance of :

1. 5,000 feet at a slope of 20 to 1 for run-

ways 12 and 17.

2. 10,000 “feet at a slope of 34 to 1 for run-

ways 6, 24, 30 and 35.

d. The light lane for runway 24 is 400 feet wide

beginning at a point 490 feet southwesterly

on the runway centerline from the center of

the end of the existing runway pavement

(including any and all paved safety areas).

Extending for a horizontal distance of 1600

feet northeasterly at a slope of 50 to 1.

(2) Height limitation. No structure shall penetrate

the approach surface in the OA Zone, as depicted

on the Airport Overlay Zoning Map.

(3) Use limitation. Sanitary iandfills shall not be

permitted in the OA Zone.

(d) Clear Overlay (OCL) Zone.

(1) Defined. The land lying under a surface longi-

tudinally centered on the runway centerline or

extension thereof and described as follows:

a. Runway 6—1000 feet wide beginning at a

point from the edge of the existing runway

on the extended runway centerline for a hori-

zontal distance of 1000 feet; thence widening

uniformly to a width of 1425 feet at a dis-

tance of 2700 feet from the point of begin-

ing.

b. Runways 12 and 17—500 feet wide at the

inner edge of the OA Zone; thence widening

uniformly to a width of 700 feet a distance

of 1000 feet from the inner edge.

(2)

(3)

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c. Runway 24—1000 feet wide beginning at a

point 490 feet southwesterly on the runway

centerline from the center of the end of the

existing runway pavement (including any

and all paved safety areas) ; thence widening

uniformly to a width of 1510 feet at a dis-

tance of 1700 feet northeasterly on the ex-

tended runway centerline from the point of

beginning; thence, at a distance of 1700 feet

northeasterly from the point of beginning the

width shall be 813 feet wide and widening

uniformly to a width of 1010 feet wide at a

distance of 2390 feet northeasterly on the

extended runway centerline from the point of

beginning.

d. Runways 30 and 35—500 feet wide at the

inner edge of the OA Zone; thence widening

uniformly to a width of 1010 feet at a dis-

tance of 1700 feet from the inner edge.

Height limitation. No structure shall penetrate

the clear surface of the OCL Zone, as depicted

on the Airport Overlay Zoning Map.

Use limitations. No use shall be permitted in

the OCL Zone in which there is connected there-

with a building which according to the 1982 edi-

tion of the Uniform Building Code, has an

occupancy rating of 50 square feet of floor area

per person or less. In addition, the following

uses shall not be permitted:

(a) Campgrounds.

(b) Fairgrounds.

(a) Motels and hotels.

(‘e) Nursing and custodial home.

(f) Residential uses.

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(g) Restaurants and similar eating and drink-

ing establishments.

(h) Sanitary landfills.

(1) Schools, including nurseries, prekindergar-

tens and kindergartens.

(j) Stadiums.

(k) Storage of fuel or other hazardous ma-

terials.

(1) Theaters.

(e) Transitional Overlay (OT) Zone.

(1) Defined. The land lying under those surfaces ex-

tending outward and upward at right angles to

the runway centerline and the runway centerline

extended at a slope of 7 to 1 from the sides of

the primary surface and from the sides of the

approach surfaces to the intersection with the

Horizontal Overlay (OH) Zone.

(2) Height limitation. No structure shall penetrate

the transitional surface of the OT Zone, as de-

picted on the Airport Overlay Zoning Map.

(3) Use limitation. Sanitary landfills shall not be

permitted in the OT Zone.

SECTION V. USE RESTRICTIONS. In addition to the

above restrictions on land, the following special require-

ments shall apply.

(a) Any person who proposes any development of a

height greater than an imaginary surface extending

outward and upward at the slope of 100 to 1 for a

horizontal distance of 20,000 feet from the nearest

point of the nearest runway shall notify the Federal

Aviation Administration (FAA). One executed form

set (four copies) of FAA Form 7460-1, Notice of

Proposed Construction or Alteration shall be sent to

the Chief, Air Traffic Division, of the FAA Regional

(b)

(@)

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Office in Kansas City, Missouri, one copy to the Iowa

City Airport Commission, and one copy to the John-

son County/Iowa City Airport Zoning Commission.

(Copies of FAA Form 7460-1 may be obtained from

the FAA. See Federal Aviation Regulations, Section

77.13.)

EXCEPTION: No person is required to notify the

FAA Administrator of the construction or alteration

of any object that would be shielded by existing

structures of a permanent and substantial character

or by natural terrain or topographic features of equal

or greater height, and would be located in the con-

gested area of a city, town, or settlement where it is

evident beyond all reasonable doubt that the structure

so shielded will not adversely affect safety in air

navigation. (See Federal Aviation Regulations sec.

77.15.) It shall be the responsibility of the appropri-

ate Building Official, prior to issuance of a building

permit for such object, to determine whether or not

the shielding satisfies the foregoing requirements.

No structure shall be erected that raises the pub-

lished minimum descent altitude for an instrument

approach to any runway, nor shall any structure be

erected that causes the minimum obstruction clear-

ance altitude or minimum enroute altitude to be

increased.

Lighting.

(1) All lighting or illumination used in conjunction

with streets, parking, signs or other use of land and

structures shall be arranged and operated in such a

manner that it is not misleading or dangerous to air-

craft operating from the Airport or in the vicinity

thereof.

(2) The owner of any structure over 200 feet above

ground level shall install on the structure light-

ing in aceordance with Federal Aviation Admin-

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istration Advisory Circular 70-7460 and amend-

ments.

(3) Any permit or variance granted by the Airport

Board of Adjustment may be so conditioned as

to require the owner of the structure or growth

in question to permit the City or the Iowa City

Airport Commission to insiall, operate and main-

tain thereon such markers or lights as may be

necessary to indicate to pilots the presence of an

airspace hazard.

(d) No operations from any use shall produce electronic

interference with navigation signals or radio com-

munication between the airport and aircraft.

SECTION VI. NON-CONFORMITIES.

DEFINED—Any structure or portion thereof which

does not conform to the provisions of this Ordinance

relative to height, and any use which is not allowed

within the Airport Overlay Zone in which it is lo-

cated by reason of the adoption of Iowa City Ordi-

nance Nos. 83-3133 and 83-3160, or this Ordinance,

or subsequent amendments thereto, is non-conforming.

REGULATIONS NOT RETROACTIVE—The regu-

lations prescribed herein shall not be construed to re-

quire the removal, lowering, or other change to or

alteration of any structure or tree not conforming to

the regulations as of the effective date of this Ordi-

nance, or to otherwise interfere with the continuance

of any non-conforming use. However, no pre-existing

non-conforming structure, tree, or use shall be re-

placed, rebuilt, altered, or allowed to grow higher,

or be replanted, so as to constitute a greater airport

hazard then it was when these regulations were

adopted. Nothing contained herein shal] require any

change in the construction, alteration, or intended

use of any structure, construction or alteration of

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which was begun prior to the effective date of this

Ordinance and is completed within one (1) year

thereafter.

C. MARKING AND LIGHTING—Notwithstanding the

preceding provision of this section, the owner of any

non-conforming structure or tree is hereby required

to permit the installation, operatioon, and mainte-

nance thereof of such margers and lights as shall be

necessary to indicate to the operator of aircraft in

the vicinity of the Airport, the presence of such

airport hazards. Such markers and lights shall be

installed, operated, and maintained at the expense

of the Iowa City Airport Commission.

SECTION VII. AIRPORT ZONING COMMISSION. A

Johnson County/lowa City Airport Zoning Commission

shall be provided as follows:

The Airport Zoning Commission shall consist of five

members, two of whom shall be appointed by the Board

of Supervisors of Johnson County and two of whom shall

be selected by the City Council of the City of Iowa City,

fowa, and one additional member to act as Chairman, who

shall be selected by a majority vote of the members

selected by the Board of Supervisors and City Council.

The terms of such members shall be as provided by Section

329.9 of the lowa Code. As required by Section 329.9 of

the Iowa Code, such Airport Zoning Commission shall

follow the procedures provided in Sections 414.4 and

414.6 of the Iowa Code.

SECTION VUI. BOARD OF ADJUSTMENT. An Air-

port Board of Adjustment (“Board”) is hereby estab-

lished as follows:

The Board shall consist of five members, two of whom

shall be appointed by the Board of Supervisors of John-

son County and two of whom shall be appointed by the

City Council of Iowa City, and one additional member to

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act as Chairman who shall be selected by a majority vote

of the members selected by the Board of Supervisors and

City Council. The terms of such members shall be as

provided in Section 329.12 of the Iowa Code. Such Board

shall have the powers and duties and shall follow the pro-

cedures, provided by Section 329.11 and 392.12 of the

Iowa Code.

SECTION IX. SPECIAL EXCEPTIONS.

(a) The height and use limitations contained in the Air-

port Overlay Zones may be modified by special exce p-

tions granted by the Airport Board of pwrnrantis

“fowever, no such special exception shall be granted

unless the Board finds, based upon written advice

from the Federal Aviation Administration, and the

Aeronautics Division of the Iowa Department of

Transportation, that—

(1) In an application to permit any structure. tree,

or use of land to exceed the height or use limita-

tions of the Airport Overlay Zones, that such

structure, tree, or use of land, would not obstruct

landing and take-off of aircraft at the Airport.

(2) In an application to permit a use of land other-

wise prohibited herein, that such use would not

be incompatible with airport operations.

(b) An applicant for a special exception hereunder shall.

as part of the application submitted to the Board. file

the required written advice of the Federal Aviation

Administration, and the Aeronautics Division of the

Iowa Department of Transportation. No application

for a special exception hereunder shall be set for

hearing by the Board until such advice has been filed.

SECTION X. VARIANCES. Any person des siring to

erect, or increase the height, of any structure, or to per-

mit the growth of any tree, or otherwise use property

in a manner which would constitute a violation of these

regulations, may apply to the Board for a variance from

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these regulations. Such variances shall be allowed only

where a literal application or enforcement of these reg-

ulations would result in unnecessary hardship, and the

relief granted would not be contrary to the public inter-

est, but would do substantial justice and be in accord-

ance with the spirit of these regulations and of Chapter

329 of the Iowa Code; provided however, any such vari-

ance may be allowed subject to any reasonable conditions

that the Board may deem necessary to effectuate the

purposes of Chapter 329 of -he Iowa Code, including but

not limited to the following: Any such variance shall be

subject to a requirement that the person requesting the

variance, at such person’s own expense, install, operate,

and maintain thereon such markers and lights as may be

necessary to indicate to operators of aircraft the pres-

ence of an airport hazard; and

The reservation of the right of the City of Iowa City

and the Iowa City Airport Commission, at their own ex-

pense, to go onto the permittee’s property to install, op-

erate, and maintain thereon such markers and lights as

may be necessary to indicate to operators of aircraft the

presence of an airport hazard.

Any appeal from the decision of the Board of Adjust-

ment shall be in accordance with the provisions of Sec-

tion 414.15 et seq of the Iowa Code.

SECTION XI. ADMINISTRATION AND ENFORCE-

MENT. The administration of these Zoning Regulations

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