                       IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0123
                             Filed November 6, 2019


DOUGLAS D. HICKMAN and SUSAN A. HICKMAN,
    Plaintiffs-Appellants,

vs.

RINGGOLD COUNTY, IOWA,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Ringgold County, John D. Lloyd,

Judge.



       Landowners appeal the district court’s denial of injunctive relief regarding

their challenge to a county’s condemnation of a portion of their land. AFFIRMED.




       Robert W. Goodwin of Goodwin Law Office, P.C., Ames, for appellants.

       Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for

appellee.



       Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ. Lloyd,

S.J., takes no part.
                                           2


VAITHESWARAN, Presiding Judge.

       Ringgold County served a notice of intent to condemn 0.7 acres of land

owned by Douglas and Susan Hickman. The Hickmans were informed their land

would “need to be acquired by Ringgold County for the construction of a new road

for the future location of a new concrete batch plant.”

       The Hickmans filed a lawsuit challenging the county’s proposed action. See

Iowa Code § 6A.24(1) (2018) (“An owner of property described in an application

for condemnation may bring an action challenging the exercise of eminent domain

authority or the condemnation proceedings.”).       They alleged in part that the

condemnation was “in violation of [Iowa Code] section 6A.22(2)(a)(3)” because it

was “solely for the purpose of facilitating the incidental private use of the Central

Iowa Ready-Mix cement plant.”

       Following a bench trial, the district court dismissed the Hickmans’ petition.

The Hickmans moved for enlarged findings and conclusions. The court denied the

motion. This appeal followed.

       Iowa Code section 6A.22(1) states: “In addition to the limitations in section

6A.21 [relating to condemnation of agricultural land], the authority of an acquiring

agency to condemn any private property through eminent domain may only be

exercised for a public purpose, public use, or public improvement.” The provision

provides several definitions of “public use,” “public purpose,” or “public

improvement,” including the following: “Private use that is incidental to the public

use of the property, provided that no property shall be condemned solely for the

purpose of facilitating such incidental private use.” Iowa Code § 6A.22(2)(a)(3).

In addition, section 6A.22(2)(b) states:
                                           3


               Except as specifically included in the definition in paragraph
       “a”, “public use” or “public purpose” or “public improvement” does not
       mean economic development activities resulting in increased tax
       revenues, increased employment opportunities, privately owned or
       privately funded housing and residential development, privately
       owned or privately funded commercial or industrial development, or
       the lease of publicly owned property to a private party.

       As they argued in the district court, the Hickmans contend the county’s

decision “to widen and improve the dirt road” south of their property “is solely for

the purpose of facilitating” the construction and use of “a temporary concrete batch

plant” southeast of their property. They assert Iowa Code section 6A.22 “restricts

and prohibits the authority of a county to condemn private land to facilitate private

use and/or for economic development.” They agree with the County that our

review is for errors of law.

       Section 6A.22(2)(b) categorically excludes “economic development

activities” from the definition of public purpose. Despite this express prohibition,

the County cited the need for economic development of the area as a basis for

exercising its power of eminent domain.            Specifically, a Ringgold County

supervisor testified:

       As a supervisor, and I’ll speak for all three of us, we think it’s critical
       for this county to further develop the economics of the county. We
       are a shrinking county. We have lost businesses. We are losing
       people all the time, so it is—we have talked about it just about every
       meeting, about county development.

The County’s reliance on an economic development rationale to support its taking

of the Hickmans’ property violated section 6A.22(2)(b).

       Although the Hickmans do not raise a constitutional challenge to the

County’s economic development rationale, it is worth noting that the Iowa Supreme

Court recently addressed whether this claimed “public purpose” violated the Iowa
                                          4

Constitution. See Puntenney v. Iowa Utils. Bd., 928 N.W.2d 829, 844 (Iowa 2019).

The court began by analyzing the United States Supreme Court’s decision in Kelo

v. City of New London, 545 U.S. 469 (2005). There, the Court was faced with a

challenge to a city’s use of eminent domain authority to acquire property for

economic-development purposes. Kelo, 545 U.S. at 472. The Court rejected the

argument that “using eminent domain for economic development impermissibly

blurs the boundary between public and private takings.” Id. at 485. Stating, “[T]he

government’s pursuit of a public purpose will often benefit individual private

parties,” the Court upheld the city’s authority to take private property. Id. at 485,

489.

       Several Justices dissented. One dissent, authored by Justice O’Connor,

stated, “[E]conomic development takings seriously jeopardiz[e] the security of all

private property ownership.” Id. at 505 (O’Connor, J., dissenting) (citation omitted).

Justice O’Connor identified “three categories of takings that comply with the public

use requirement.” Id. at 497. Among them, Justice O’Connor stated, “[T]he

sovereign may transfer private property to public ownership—such as for a road,

a hospital, or a military base.” Id. Justice O’Connor would not have found the

city’s reasoning fell within one of the permissible categories. Id. at 501, 505.

       Returning to Puntenney, the Iowa Supreme Court found Justice O’Connor’s

dissent more persuasive than the majority opinion for purposes of interpreting the

Iowa Constitution’s provision on eminent domain. 926 N.W.2d at 848. The court

stated, “[T]rickle-down benefits of economic development are not enough to

constitute a public use.” Id. at 849. At the same time, the court concluded the

pipeline at issue fell into one of the permissible-takings categories identified by
                                          5

Justice O’Connor. Id. at 851–52. Accordingly, the court found no violation of the

State or Federal Constitution.     Id.   Puntenney reinforces our rejection of the

County’s economic development rationale for exercising its power of eminent

domain.

       That said, the County was statutorily authorized to upgrade the road. See

Iowa Code § 306.27 (“[T]he boards of supervisors as to secondary roads on their

own motion may change the course of any part of any road . . . to straighten a

road, or to cut off dangerous corners, turns or intersections on the highway, or to

widen a road above statutory width . . . .”); accord id. § 6A.21(2) (“The limitation on

the definition of public use, public purpose, or public improvement does not apply

to the establishment, relocation, or improvement of a road pursuant to chapter 306

. . . .”). According to the County supervisor, the road needed upgrading. The

existing road was “a Class B road . . . pretty much [a] dirt road” and the plan was

to reconstruct it to a Level A road, which had a different “width” and “grade.” The

supervisor noted that simply adding gravel was not a viable option because “[i]t

would be a hazard to public safety.” In his words, “[T]ruck traffic can’t meet on it

without crowding the shoulder. The shoulders would be soft at this point in time

and the trucks would roll.” Another witness similarly testified the road in its present

form could not “handle heavy truck traffic” and was impassible “if it rains.” In short,

the County’s need to upgrade the road was a public purpose that supported its

exercise of eminent domain over the Hickmans’ land. See In re Condemnation of

Certain Rights in Land for Constr. of a Cty. Rd. by Allamakee Cty., 666 N.W.2d

137, 141 (Iowa 2003) (“The county was authorized by law to determine the need

for a road relocation so as to align with a newly constructed bridge.”). We affirm
                                       6


the district court’s dismissal of the Hickmans’ lawsuit challenging the County’s

condemnation notice.

      AFFIRMED.
