# Petition for Writ of Certiorari — Fitzgarrald v. City of Iowa City > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2238%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 508 U.S. 911 ## Text 92-15 45 | Biers wz) No. st ne et _ _ QAFICE OF THE CLERK | eo 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 bo 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. (i) TABLE OF CONTENTS Page 8) yy gs | gy | | oe i TABLE OF AUTHORITIES ......... FSD ee AAT A EAR ID iv OPINIONS BELOW ............ 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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 2 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 4 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- 5 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 (c) Hospitals and institutions (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 7 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) 8 (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. 9 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 10 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 11 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 12 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. 13 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 14 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. 15 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 16 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 17 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 la APPENDIX IN THE SUPREME COURT OF IOWA No. 141/90-1845 Filed November 25, 1992 ; DEAN A. FITZGARRALD and PHYLLIS FITZGERRALD, - Appellants, De 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. Za 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 3a 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. (c) Hospitals and institutions. (di Motels and hotels. (e} Nursing and custodial home. (f) Residential uses. (ig) Restaurants and similar eating and drinking estaodlishments. 4a (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. va 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. 6a [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. 7a 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 8a 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 9a 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. el 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 4 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 Ee 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: iw ——- —_—— —— AMBRISCO w a ed — — BAKER a aa meee — —— COURTNEY iw cutenemtenss a ——— DICKSON “ — ——— —— MCDONALD Vw — —— ——— STRAIT a —_—— ——. ——— 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. bo 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 a 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- bo 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 N ty | SOUTHEASTERLY R.O.W. LINE A OU wns OF PRESENT STATE HIGHWAY NO. t 7 / \ ar. SCALE: " 103" ™ ante ) © &ET IRON PIN * . @ 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 ae 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- ——— 77.63 Record of hearing. (a) Each hearing is recorded verbatim by an official reporter under an FAA contract. The transcript, and all exhibits, become a part of the record of the hearing. (b) Any person may buy a copy of the transcript of the hearing from the reporter at the price fixed for it. (ec) The presiding officer may allow any party to with- draw an original document if he submits authenticated copies of it. (d) Any person may buy, from the FAA, photostatic copies of any exhibit by paying the copying costs. (e) A change in the officia! transeript of a hearing may be made only if it involves an error of substance. Any recommendation to correct the transcript must be filed with the presiding officer within 5 days after the hearing closes. The presiding officer reviews each request for a correction to the extent he considers appropriate and shall make any revisions that he finds appropriate as a result of that review. 144a $ 77.65 Recommendations by parties. Within 20 days after the mailing of the record of hear- ing by the official reporter, or as otherwise directed by the presiding officer, each party may submit to the pre- siding officer five copies of his recommendations for a final decision to be made by the Administrator. $77.67 Final decision of the Administrator. After reviewing the evidence relevant to the questions of fact in a hearing, including the official transcript and the exhibits. The Administrator resolves all these ques- tions, based on the weight of evidence, and makes his determination, stating the basis and reasons for it. He then issues an appropriate order to be served on each of the parties. $ 77.69 Limitations on appearance and representation. (a) A former officer or employee of the FAA may not appear on behalf of, or represent, any party before the FAA in connection with any matter to which this part applies, if he considered or passed on that matter while he was an officer or employee of the FAA. (b) A person appearing before the FAA on any matter to which this part applies may not, in connection with that appearance, knowingly accept assistance from, or Share fees with, any person who is prohibited by para- graph (a) of this section, from appearing himself on that matter. (c) A former official or employee of the FAA may not, within 6 months after he ceases to be such an officer or employee, appear before the FAA on behalf of, or repre- Sent, any party in connection with any proceeding that was pending under this part while he was an officer or employee of the FAA, unless he obtains written consent from an appropriate officer of the FAA, based on a veri- fied showing that he did not personally consider the mat- 145a ter concerned or gain particular knowledge of it while he was an officer or employee of the FAA. Subpart F—Establishment of Antenna Farm Areas $ 77.71 Scope. (a) This subpart establishes antenna farm areas in which antenna structures may be grouped to localize their effect on the use of navigable airspace. (b) It is the policy of the FAA to encourage the use of antenna farms and the single structure-multiple an- tenna concept for radio and television towers whenever possible. In considering proposals for establishing an- tenna farm areas, it considers as far as possible the re vision of aeronautical procedures and operations to ac- commodate antenna structures that will fulfill broadcast- ing requirements. $ 77.73 General provisions. (a) An antenna farm area consists of a specified geo- graphical location with established dimensions of area and height, where antenna towers with a common impact on aviation may be grouped. Each such area is estab- lished by appropriate rule making action. (b) Each proposal for an antenna farm area is eval- uated on the basis of its effect on the use of navigable airspace. The views of the Federal Communications Com- mission are requested on the effect that each establish- ment of an antenna farm area would have on its statu- tory responsibilities. Any views submitted by it are fully considered before the antenna farm concerned is estab- lished. If the Commission advises that the establishment of any proposed antenna farm area would interfere with its statutory responsibility, the proposed area is not established. (ce) The establishment of an antenna farm area is con- sidered whenever it is proposed by: (2) The (3) The sponsor of (4) Any | Doc. No. 1882, The FAA; L 146a 30 FR 1839, Feb. Federal Communications Commission: a proposed antenna tower; or other person having a substantial interest in a proposed antenna tower. 10, 1965, as amended by Amdt. 77-10, 37 FR 4705, Mar. 4, 1972] S €G.¢0 Establishment of antenna farm areas. The airspace areas described in the following sections of this subpart are established as antenna farm areas. 147a IN THE SUPREME COURT OF THE STATE OF IOWA No. 90-1845 As ~ JEAN A. FITZGARRALD and PHYLLIS FITZGARRALD. Plaintiffs-A ppellants, VS. THE CITy OF IOWA City, Iowa, and JOHNSON COUNTY, IOWA, Defendants-A ppellees. APPLICATION FOR LIMITED REMAND | Filed Mar. 31, 1992] Plaintiffs-Appellants make application to the Court for limited remand to the Trial Court on the basis of newly acquired evidence and state: | ' The decision of the Trial Court was filed Novem- ber 1, 1990, from which Plaintiffs-Appellants appealed to the Supreme Court of Iowa. 2. The case was transferred to the Iowa Court of Appeals as Docket No. 1-436 90-1845. 3. The decision of the Iowa Court of Appeals was filed December 31, 1991. 1. Plaintiffs-Appellants and Defendants-Appellees filed for further review before the Supreme Court of Iowa which was granted by order entered February 28, 1992. 5. Oral argument was granted by the Supreme Court fowa and has been set for April 6, 1992. woe - lita 6. Although Plaintiffs-Appellants claim and the Iowa Court of Appeals found that a physical taking had oc- curred, one of the issues raised by Defendants-Appellees and specified by the lowa Court of Appeals involves the exhaustion of administrative remedies. 7. Under the terms and conditions of the “Johnson County lowa City Airport Zoning Ordinance” no special exception or variance from the terms of the ordinance can be granted without the prior approval of the Federal Aviation Administration (FAA). 8. Counsel for Plaintiffs-Appellants has attempted on several occasions to ascertain whether an application for variance or special exception would be entertained and considered by FAA, and a response was finally received from FAA on March 26, 1992, a copy of which is attached hereto and made a part hereof by this reference. 9. Considering the elevation of the terrain of the property belonging to Plaintiffs-Appellants as shown by the exhibits and testimony in this case, it is obvious that construction of strutcures on the greater portion of Plaintiffs-Appellants’ property would penetrate the ap- proach slope and would be deemed a hazard by the FAA which would proceed to prevent the construction. 10. The referral of this matter to the Trial Court on the basis of a limited remand would enable Plaintiffs- Appellants to present evidence concerning the futility of applying for permission to construct any structure which would penetrate the approach slope established by the airport ordinance and the exhaustion of administrative remedies, therefore, would not be required. By reason of the foregoing, Plaintiffs-Appellants ask that this matter be remanded to the Trial Court for consideration of evidence pertaining to any application by Plaintiffs-Appellants for a special exception or variance based upon the evidence which has been produced at trial showing the expected height of houses and commercial buildings. 149a Dated this 30th day of March, 1992. MEARDON, SUEPPEL, DOWNER & HAYES By ‘s’ William L. Meardon WILLIAM L. MEARDON 122 South Linn Street lowa City, lowa 52240 Telephone: 319/338-9222 Attorneys for Appellants L50a U.S. DEPARTMENT Central Region OF TRANSPORTATION — lowa, Kunsas, FEDERAL AVIATION Missouri, Nebraska ADMINISTRATION 601 I. 12th Street Mar. 24, 1992 Kansas City, Missouri 64106 Meardon, Sueppel, Downer & Hayes ATTN: Mr. William L. Meardon 1228. Linn Street lowa City, [A 52240 Dear Mr. Meardon: This is in sponse to your letter, dated December 26, 199], concerning the development of property around and adjacent to the Iowa City Municipal Airport. The lowa City Airport is a public use airport and is protected by Federal Aviation Regulations to insure max- imum safety to air navigation. Part 77 of the Federal Aviation Regulations specifically deals with any obstructions in the approach sie ne or any airport imaginary surface. If we received a proposal be located in the approach trapezoid and it exceeded the 34:1 slope, we would determine it to be a hazard to air hav.gation and proceed with steps necessary to prevent its construction, The power line located along the south side of Highway 1 can either be buried or relocated outside the trapezoid. Under no circumstances would we consider the power line as acceptable shielding for other structures. We would be happy to review any construction your clients proposed, as long as they provide us latitude longtitude, height of structures, and rensonable ground elevations. We would not require uny extensive engi- neering studies, If our review indicated a maximum height not to exceed, wi would inform the Hponsor anc include it as a condition of the determination. t ‘ ‘ ] f° t > cot ° 4 4 ‘ + If we can be of further assi ance, feel free to contact Kathy Randolph, ACE-520¢, at (816) 4 Sincerely, Terry Bolerjack TERRY BOLERJACI Acting Manager, SS tem Manavement Branch --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2238%3A1. Public record. Not legal advice.