Fitzgarrald v. City of Iowa City

• Decision Date: 25 November 1992
• Docket Number: No. 90-1845,90-1845
• Citation: 492 N.W.2d 659
• Parties: Dean A. FITZGARRALD and Phyllis Fitzgarrald, Appellants, v. The CITY OF IOWA CITY, Iowa, and Johnson County, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 659

492 N.W.2d 659

Dean A. FITZGARRALD and Phyllis Fitzgarrald, Appellants, v. The CITY OF IOWA CITY, Iowa, and Johnson County, Iowa, Appellees.

No. 90-1845.

Supreme Court of Iowa.

Nov. 25, 1992.

Rehearing Denied Dec. 23, 1992.

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 Atty., and Karen Lorenzen, Legal Intern, for appellee Johnson County.

Considered en banc.

CARTER, Justice.

Plaintiffs, Dean Fitzgarrald and Phyllis Fitzgarrald, who are landowners adjacent to the Iowa City Municipal Airport, appeal from adverse judgment in mandamus action to compel condemnation. The court of appeals concluded that a taking had occurred but that plaintiffs had not shown exhaustion of administrative remedies or the requisite "finality of taking" under the "variance" provisions 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A petition for rehearing filed by plaintiffs was subsequently granted, and that opinion, which was never published, was withdrawn.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 reviewing the record and hearing the arguments as originally 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 Airport. 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 premises. 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 unsuccessful. The most recent unsuccessful attempt to rezone the property was in 1978 when plaintiffs applied to Johnson County for rezoning to permit a motel operation.

Plaintiffs' property is located at the end of airport runway 6-24. In November 1984, the Iowa City Airport Commission undertook a project designated as "Runway 6-24 Extension Project." This project contemplated that runway 6-24 would be extended 1000 feet toward plaintiffs' property. The extension required the taking of 1.18 acres of plaintiffs' land. To help facilitate this project, the City of Iowa City and Johnson County in 1984 jointly adopted a zoning ordinance prescribing height and use restrictions for property surrounding the airport.

The 1984 ordinance proscribed structures from penetrating an "Approach Overlay Zone," which is a plane beginning 200 feet from the end of a runway and extending 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 penetrated the plaintiffs' home and some of their ground. Preexisting structures that did not conform to the ordinance were permitted to remain without alteration as nonconforming uses.

The ordinance also provided for a "Clear Overlay Zone," which places restrictions on uses for property located beneath it. A substantial portion of plaintiffs' property is within the clear zone. The ordinance provides:

Use limitations. No use shall be permitted in the OCL Zone in which there is connected therewith a building which according to the 1982 edition of the Uniform Building Code, has an occupancy rating of 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.

(d) Motels and hotels.

(e) Nursing and custodial home.

(f) Residential uses.

(g) Restaurants and similar eating and drinking establishments.

(h) Sanitary landfills.

(i) Schools, including nurseries, pre-kindergartens and kindergartens.

(j) Stadiums.

(k) Storage of fuel or other hazardous materials.

(l ) Theaters.

Exceptions and variances from the use limitations may be allowed in some situations and a special board of adjustment has been established to consider such applications. To a large extent, the ordinance incorporated restrictions already contained in Federal Aviation Administration (FAA) regulations applicable to property surrounding 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 proceeding 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. ¹ In October 1987, prior to adjudication of the mandamus action, the city did initiate eminent domain proceedings to obtain such an easement. That action was ultimately voided by district court order as a result of a faulty description of the interests being condemned. No further action has been taken by the city to acquire an avigation easement over plaintiffs' lands.

Ultimately, runway 6-24 was only extended 355 feet instead of the 1000-foot extension originally contemplated. The 1984 zoning ordinance was amended to accommodate this change. The primary result of these amendments was to change the height restrictions of the ordinance to reflect the shorter runway. Under the amended ordinance, plaintiffs' dwelling penetrates 6.9 feet into the specified approach slope. Like the 1984 ordinance, the amended ordinance allows plaintiffs' nonconforming uses to continue without alteration.

When the city failed to reinitiate the aborted attempt to condemn an avigation easement, plaintiffs again pressed their mandamus action. They also amended that action to allege that the zoning ordinances were so restrictive of property uses that they constituted a regulatory taking for which compensation was due plaintiffs.

After hearing the evidence presented at the trial of the mandamus action, the district court concluded that the ordinances do not constitute a compensable taking of plaintiffs' property. The court also considered and rejected plaintiffs' claim that an avigation easement must be condemned by the airport authority because of a direct physical invasion of plaintiffs' lands by overflying aircraft. The latter claim was based on allegations that unreasonable noise and vibrations were occurring because takeoffs and landings to and from the extended runway were now more proximate to plaintiffs' property. The court found from the evidence that, in fact, there were fewer flights over plaintiffs' lands after the runway extension was completed than there were before that project was initiated. ² 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 aircraft 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

[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 adjusting the benefits and burdens of economic life to promote 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, overflying 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 § 661.3 (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 easement in Dolezal, 209 N.W.2d at 87-88. In that case, we recognized that an avigation easement may be required when flights are so low and so frequent as to amount to a taking of property. Id. at 87. Of course, every noise or interference with property as a result of overflying aircraft does not constitute a taking. Landowners must endure some level of inconvenience, discomfort, and loss of peace and quiet that can be reasonably anticipated by members of a progressive society. But, as the 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.W.2d 651, 662 (1974). In such cases, the right to recovery is not for the nuisance that must be endured but for the loss of value that has resulted.

Although some courts have concluded that the issue of whether a taking has occurred in airport overflight cases is an issue of law for the mandamus court to decide in the first instance, see, e.g., In re Ramsey, 31 Pa.Commw. 182, 186, 375 A.2d 886, 888-89 (1977), we believe the better rule to be that the mandamus court should only determine whether a factual issue exists that would permit 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...