Iowa Supreme Court Agrees that Carroll Farmer Must Abate Grain Leg Nuisance

On May 10, 2019, the Iowa Supreme Court issued a ruling finding that, despite a waiver from the Federal Aviation Administration, a farmer would have to remove a grain leg he constructed to comply with local regulations. The Carroll County District Court had ordered the grain leg to be removed, and the Court of Appeals had affirmed.

Background

The defendant is farmer from Carroll County who built a bucket elevator to dry and store grain more efficiently. Once completed, the structure stood at 127 feet. The farm is under the flight path of the Arthur N. Neu Municipal Airport. Local zoning ordinances create a protected airspace at 1,354 above sea level. Because the top of the structure is 1,413.43 feet above mean sea level, the grain leg intrudes into the protected airspace by almost 60 feet.

Before beginning construction, the farmer went to the county zoning administrator to obtain a building permit. The administrator issued the permit and granted an agricultural exemption to the local ordinances. Neither the farmer nor the administrator realized the farmer would need an additional building permit requesting a variance from the airport zoning ordinance.

Construction started in April of 2013 and was completed in August. In June of that same year, a member of the Carroll County Airport Commission (Commission) saw the bucket elevator and contacted the county zoning administrator. The Commission notified the farmer the structure required a variance, but it would not grant one. The Commission asked the Federal Aviation Administration (FAA) to conduct an aeronautical study to determine the grain leg’s impact on aviation safety. The FAA determine the grain leg posed no hazard to aviation if certain conditions were met, including painting the structure and adding red lights to the top. The letter also stated the structure must comply with all other Federal, State, and local laws.

Impact of No-Hazard Determination

Congress created the Federal Aviation Act to give power to the FAA to regulate the safety and efficiency of the United States’ airspace. This includes regulating structures that intrude into the airspace. This also includes granting hazard/no-hazard determinations and making marking and lighting recommendations for the structure. A federal court has ruled that a hazard/no-hazard decision has no legal effect. Aircraft Owners & Pilots Ass’n v. FAA, 600 F.2d 965 (D.C. Cir. 1979). However, these decisions can be challenged as a final agency disposition because they may impact practical matters such as obtaining insurance or grants.

State of Iowa Laws and Local Regulation

Iowa law allows any city or county with an airport to establish zoning regulations to manage the safety of the airport. Iowa Code §§ 329.2-.3; 330.17(1). If any other law conflicts with one of these laws, the more stringent law must apply. Iowa Code § 329.8.

Preemption of Federal Determination

The farmer argued the FAA no hazard determination preempted the local Commissioner’s determination. Under the Supremacy Clause of the U.S. Constitution, federal law preempts state law. Traditionally, three different kinds of preemption exist: express, conflict, and field. Here, the Court affirmed the lower courts findings and ruled none of these applied to the current case.

Express preemption occurs when Congress explicitly makes a statute which provides for the federal governments exclusive authority. That was not the case here. While the Aviation Act gives the Federal Government exclusive authority over the U.S. airspace, it does not make the FAA the single authority to regulate intrusion into the airspace.

Conflict preemption applies when state law conflicts with federal law and it is impossible to obey both laws. In this case, the court found both the federal aviation laws and the local zoning regulations could be in effect without conflicting. The state laws are more stringent than the federal laws; however, both can be followed at the same time.

The final type is field preemption. This occurs when Congress creates such a comprehensive scheme of laws that it meant to occupy the whole field. The court affirmed the Iowa Court of Appeals finding that the Aviation Act imposed minimum standards, but local governments could impose stricter standards. Other courts in Indiana and Illinois have ruled that when a state finds a structure be a danger to aviation, the state is not preempted by the Aviation Act, even though the FAA found it to not be a hazard. Aeronautics Commission of Indiana v. State ex rel Emmis Broadcasting Corp., 440 N.E.2d 700 (Ind. Ct. App. 1982); La Salle National Bank v. Cook County, 340 N.E.2d 79 (Ill. App. Ct. 1975). The FAA’s determination was only advisory and not treated as if it were a binding department decision. Here, the court found no evidence the federal regulation interfered with the state regulations. Additionally, the no-hazard determination explicitly stated that the farmer would have to follow state or local regulation.

Per Diem Penalty

The district court ordered the grain leg removed or modified by May 1, 2018. If the farmer failed to do so, he would be liable for a $200 penalty for each day the structure remained in violation or $73,000 per year. While the district court gave the farmer nine months to remove or modify the bucket elevator, all of the grace period and then some was used in appealing the district court’s ruling. The Supreme Court found that the farmer had a valid argument, the Commission did not file this lawsuit for two years, and the cost to remove the structure is nearly $450,000. In addition, allowing this per diem penalty may have a chilling effect on litigation when a question of first impression is at issue. For these reasons, the Court restarted the grace period by allowing an additional nine months to bring the grain leg into compliance.