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Milligan v. Red Oak, Iowa, City of

ELR Citation: 31 ELR 20224
Nos. No. 99-3778, 230 F.3d 355/(8th Cir., 10/16/2000)

The court affirms the dismissal of a hog farmer's complaint that alleged a taking of property by an Iowa city in violation of the Public Use Clauses of the U.S. and Iowa Constitutions. The farmer intended to use land bordering an airport for a hog manure lagoon. The city opposed the lagoon and received a state court injunction prohibiting construction. The farmer then amended the proposed lagoon, but the city passed a resolution authorizing condemnation of the property in order to prevent an airport safety hazard. After the farmer received a state permit for the lagoon, the city claimed it would condemn the property if the farmer did not accept the city's offer to buy a negative easement on the property. The farmer then claimed violation of the U.S. and Iowa Constitutions. The court first holds that acquiring the land to avoid the creation of an airport safety hazard is a public purpose and provides a basis for a condemnation action under both federal and Iowa law. The city clearly has authority as well as a legitimate interest in regulating airport safety. Airport hazards are a public nuisance and activities to prevent or eliminate such hazards are necessary to accomplish the public purpose of public health, safety, and general welfare. The court next holds that the city's decision to acquire or condemn an easement limiting the use of the farmer's land adjacent to the airport meets both the federal rational relationship and state necessity tests. The court further holds that the previous state court injunction does not preclude retrying the factual issue of whether the proposed lagoon would attract birds and thus create an airport hazard. Although the issue of whether birds would be attracted to the lagoon was raised and resolved in both the state and federal court cases, the dispositive issues were not identical because different lagoon configurations were presented to the state and federal courts and because the state court found not a waterfowl hazard but a pilot visibility hazard. Moreover, the district court was not reviewing the state judicial decision, but rather the city condemnation proceeding, and issue preclusion does not prevent a legislative body from making a finding contrary to a judicial decision.

Counsel for Appellant
Stanley J. Thompson
Davis, Brown, Koehn, Shors & Roberts
The Financial Center
666 Walnut St., Ste. 2500, Des Moines IA 50309
(515) 288-2500

Counsel for Appellee
John B. Boeye
Law Offices of John B. Boeye
508 N. 4th St., Red Oak IA 51566
(712) 623-5484

Before Bowman, Gibson,1 and Loken, JJ.