584 N.W.2d 309 (Iowa 1998)
In September 1994, Gerald and Joan Girres applied to the Kossuth County Board of Supervisors for establishment of an agricultural area that would include land they owned as well as property owned by Mike Girres, Norma Jean Thul, Gerald Thilges, Shirley Thilges, Thelma Thilges, Edwin Thilges, Ralph Reding, Loretta Reding, Bernard Thilges, Jacob Thilges, John Goecke, and Patricia Goecke.1 The real property involved consisted of 960 acres.2
On November 10, 1994, the Board denied the application after finding that the policy in favor of agricultural land preservation was not furthered by the designation because there were no present or foreseeable nonagricultural development pressures in the area.3 The Board also found that the Agricultural Area designation and the nuisance protections provided therein would have a direct and permanent impact on the existing and long-held private property rights of the adjacent property owners.4 It concluded that the policy in favor of agricultural land preservation was outweighed by the policy in favor of the preservation of private property rights.5
Two months later, in January 1995, the applicants submitted a new application that the Board approved by a 3-2 vote, one of which was based on the flip of a nickel.6 In granting the designation, the Board found that the application to create the agricultural area designation complied with Iowa Code section 352.6.7 The Board also found that the adoption of the proposed agricultural area was consistent with the purposes of Chapter 352.8
In April 1995, several neighbors of the new agricultural area, including Clarence and Caroline Bormann and Leonard and Cecelia McGuire, filed a writ of certiorari and declaratory judgment action in district court against the Board and individual board members Joe Rahm, Al Dudding, Laurel Fantz, James Black, and Donald McGregor.9 The neighbors challenged the Board's action on constitutional grounds, including violations of their inalienable right to protect property under the Iowa Constitution and deprivations of property without due process or just compensation under both the federal and Iowa Constitutions, as well as on res judicata and arbitrary and capricious grounds.10
Based on stipulated facts, memoranda, and oral argument, the district court determined that the Board's action was arbitrary and capricious because one Board member voted on the basis of a flipped coin, and this was the only ground on which the court ruled for the neighbors.11 The court rejected all of the neighbors' other arguments.12 Later, the neighbors filed an Iowa Rule of Civil Procedure 179(b) motion asking the court to clarify its ruling.13 Meanwhile, the Board corrected the arbitrary and capricious infirmity in its November 1995 vote, after which the neighbors sought and received a certification of appeal from this court.14
Whether a statutory immunity from nuisance suits results in a taking of private property for public use without just compensation in violation of federal and Iowa constitutional provisions?15
The Fifth Amendment to the United States Constitution and article I, section 18 of the Iowa Constitution prohibit the taking of private property for public use without just compensation.16 Property interests protected under these provisions include easements.17 The right to maintain a nuisance constitutes an easement.18 Iowa Code section 352.11(1)(a) grants agricultural area owners immunity from nuisance suits, which creates an easement over neighboring properties by allowing activities such as the generation of noise, odor, dust, or fumes that would otherwise be actionable.19 This government-authorized easement effects a per se taking through nontrespassory physical invasion, requiring just compensation.20
Yes. The Board's approval of the agricultural area designation for the 960 acres owned by Gerald and Joan Girres and the other applicants triggered the nuisance immunity provisions of Iowa Code section 352.11(1)(a).21 This immunity permits the applicants to conduct farming operations that create noise, odor, dust, or fumes on their land without liability to the adjacent property owners, Clarence and Caroline Bormann and Leonard and Cecelia McGuire.22 The immunity thereby imposes an easement on the neighbors' properties in favor of the applicants' land.
An easement is a constitutionally protected property interest under both the federal and Iowa just compensation clauses.23 The Board's action in granting the agricultural area designation therefore constitutes a permanent physical invasion by nontrespassory means. This amounts to a per se taking of the neighbors' property rights for public use without payment of just compensation.24
The statutory immunity from nuisance suits results in a taking of private property for public use without just compensation in violation of federal and Iowa constitutional provisions.25