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Harms v. City of Sibley11/24/2004
taking by the City and dismiss plaintiffs' claims against the City with prejudice. There is substantial evidence to support the district court's ruling that the operation of the ready-mix plant caused a nuisance. Both Joe's and Sandbulte are liable for the damages caused by the nuisance. We affirm the judgments of $43,750 in permanent damages and $30,000 in special damages against Joe's and Sandbulte jointly and severally. Costs on appeal and in the district court are taxed three-fourths to Joe's and Sandbulte and one-forth to plaintiffs.
AFFIRMED IN PART AND REVERSED IN PART.
Zimmer and Eisenhauer, JJ. concur.
Vogel and Hecht, J.J., dissent.
VOGEL, J. (dissenting)
I would affirm the district court as I believe substantial evidence supports the district court's finding that the granting of the rezoning of Sandbulte's land permitted a permanent physical invasion of the Harmses' property thereby constituting a taking without compensation .
The issue of whether governmental action amounts to an unconstitutional taking is determined by the character of the intrusion examined on a case-by-case basis. Perkins v. Board of Supervisors, 636 N.W.2d 58, 70 (Iowa 2001). This test is essentially one of reasonableness. Id.
In this case, the City Council was well aware of the character and nature of the intrusion resulting from the reclassification of Sandbulte's property from "light industrial" to "heavy industrial" as the City received written protests by area property owners prior to the zoning amendment. Additionally, the City was well informed of the potential effect a zoning change would bring to the area as Sandbulte, the proponent of the change, had informed the City of his plans to build and develop the concrete plant/ready-mix operation exceeding the zoning limitation of a "light industrial" classification. The City was again informed of the potential effect of the zoning change when at a public hearing in February 2001, several citizens unsuccessfully attempted to block the rezoning by voicing their concerns regarding the effect a change of zoning would have on the area, namely paving the way for the ready-mix business to be built, and by addressing the effect such a business would have on local property owners.
As the majority correctly points out, even where a governmental body's regulation or amendment meets a "legitimate state interest" the government may nevertheless be required to compensate a property owner if its action: (1) involves a permanent physical invasion of the property, or (2) denies the owner all economically beneficial or productive use of the land. Perkins, 636 N.W.2d at 70. Thus in determining whether a taking without compensation occurred, the degree of harm posed to the Harmses' property by the rezoning of Sandbulte's property must be considered. See id.
The district court, upon examination of the degree of harm posed by the reclassification, found that the operation of the plant involves a permanent physical invasion of the Harms' property. . . . There has been a substantial diminution in the value of the Harms' property, sufficient to constitute a taking of property. The City, by changing the classification on the Sandbulte property, allowed Sandbulte and Joe's Ready Mix to create a nuisance, causing substantial damage to the Harms.
The district court then concluded "Harms should be entitled to compensation from the City of Sibley." The majority, however, finds there was no permanent physical invasion of Harmses' property and thus concludes that there has been no compensable taking by the City as a matter of law. I submit this conclusion goes beyond the limits o
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