                 IN THE SUPREME COURT OF IOWA
                              No. 18–0509

                          Filed June 14, 2019


LOREN DANNER and PAN DANNER,

      Appellants,

vs.

CARROLL COUNTY BOARD OF ADJUSTMENT,

      Appellee.



      Appeal from the Iowa District Court for Carroll County, Kurt J.

Stoebe, Judge.



      Farmers appeal district court judgment upholding board of

adjustment’s denial of requested zoning variance. AFFIRMED.



      Steven Hamilton of Hamilton Law Firm, P.C., Storm Lake, for

appellants.



      John C. Werden, County Attorney, and Aaron W. Ahrendsen,

Assistant County Attorney, for appellee.
                                     2

PER CURIAM.

        In 2013, Loren and Pan Danner built a 127-foot-tall grain leg on

their farmland in Carroll County. The grain leg sits under the flight path

to the Arthur N. Neu Municipal Airport. The grain leg violates the Carroll

County Airport Zoning Ordinance height restrictions by encroaching into

protected airspace by sixty feet. The Danners failed to seek a variance

before constructing the grain leg.

        In July 2013, the Federal Aviation Administration (FAA) conducted

an aeronautical study and concluded that if the Danners painted the

grain leg and added lights to the top, the grain leg would not be a hazard

to aviation.   The Danners complied with those measures.       The Carroll

Airport Commission disagreed with the FAA’s no-hazard determination

and, in July 2015, filed an equitable action to have the grain leg declared

a nuisance and removed or modified.

        While the nuisance action was pending, the Danners applied to the

Carroll County Board of Adjustment for a variance from the airport

zoning height restrictions.   The Board denied the variance in March

2017.    In April, the Danners filed a petition for judicial review of the

Board’s decision. In June, the district court ruled on the commission’s

nuisance claim and concluded “that the grain leg violated state and local

zoning ordinances and constituted a nuisance and an airport hazard

under Iowa Code sections 329.2 and 657.2(8) (2015).”         Carroll Airport

Comm’n v. Danner, ___ N.W.2d ___, ___ (Iowa 2019). The court ordered

the Danners to remove or modify the grain leg.         Id.   The Danners

appealed the nuisance ruling. The nuisance ruling was on appeal during

the judicial review proceedings.     In both cases, the Danners raised a

common defense—the FAA’s no-hazard determination preempted local
                                       3

regulations as a matter of law. The district court rejected that defense in

the nuisance action.

         On February 23, 2018, the district court entered its ruling on the

judicial review petition and affirmed the Board’s denial of the variance,

again rejecting the preemption defense.           The Danners appealed this

ruling on March 23. We retained their appeal pending the outcome of

the nuisance appeal in Carroll Airport Commission.                   The Danners

conceded that the outcome of the Carroll Airport Commission nuisance

appeal dictates the result in the judicial review appeal.

         In September, the Iowa Court of Appeals affirmed the district

court’s ruling in the nuisance action. Id. at ___. The Danners petitioned

for further review, which we granted.      Id.     We concluded the FAA no-

hazard determination did not preempt state and local zoning laws and

affirmed the district court ruling. Id. at ___. We gave the Danners an

additional nine months from the date procedendo issued to remove or

modify the grain leg. Id.

         As   the   Danners   acknowledge,       Carroll   Airport    Commission

adjudicated the same federal preemption issue they raised in this

proceeding.     Our opinion rejecting the Danners’ preemption defense in

Carroll Airport Commission is fatal to the Danners’ appeal of the zoning

variance denial. For that reason, we affirm the decision of the district

court.

         AFFIRMED.

         This opinion shall not be published.
