In this appeal we are asked to decide 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. We think it does. We therefore reverse a district court ruling holding otherwise and remand. In doing so, we need not reach a second constitutional challenge.
I. Facts and Proceedings.
The facts are not in dispute. 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 (applicants). See Iowa Code § 352.6 (1993). The real property involved consisted of 960 acres. On November 10, 1994, the Board denied the application, making the following findings and conclusions:
a. The Board finds that the policy in favor of agricultural land preservation is not furthered by an Agricultural Area designation in this case as there are no present or foreseeable nonagricultural development pressures in the area for which the designation is requested.
b. The Board also finds that the Agricultural Area designation and the nuisance protections provided therein will have a direct and permanent impact on the existing and long-held private property rights of the adjacent property owners.
c. Thus, the Board concludes that the policy in favor of agricultural land preservation as set forth in Iowa Code chapter 352 is outweighed by the policy in favor of the preservation of private property rights.
d. Accordingly, the Board finds that the adoption of the Agricultural Area designation in this case is inconsistent with the purposes of Iowa Code chapter 352.
Two months later, in January 1995, the applicants tried again with more success. *312 The Board approved the agricultural area designation by a 3-2 vote — one of which was based on the “flip [of] a nickel.” In granting the designation, the Board this time found that the application to create the agricultural area designation “complies with Iowa Code section 352.6 and that the adoption of the proposed agricultural area is consistent with the purposes of Chapter 352.”
In April 1995, several neighbors of the new agricultural area filed a writ of certiorari and declaratory judgment action in district court. The defendants were the Board and individual board members Joe Rahm, Al Dudding, Laurel Fantz, James Black, and Donald McGregor (Board).
The plaintiffs, Clarence and Caroline Bor-mann and Leonard and Cecelia McGuire (neighbors), challenged the Board’s action in a number of respects. The neighbors alleged the Board’s action violated their constitutionally inalienable right to protect property under the Iowa Constitution, deprived them of property without due process or just compensation under both the federal and Iowa Constitutions, denied them due process under the federal and Iowa Constitutions, ran afoul of res judicata principles, and was “arbitrary and capricious.” The applicants intervened.
Based on stipulated facts, memoranda and oral argument, the district court determined that the Board’s action was “arbitrary and capricious.” Apparently, the determination was based on one Board member voting on the basis of a flipped coin. This was the only ground on which the court ruled for the neighbors. The court rejected all of their other arguments.
Later, the neighbors filed an Iowa Rule of Civil Procedure 179(b) motion asking the court to clarify its ruling. Meanwhile, the Board corrected the “arbitrary and capricious” infirmity to its November 1995 vote. The neighbors then sought, and received, a certification of appeal from this court.
II. Scope of Review.
The neighbors sued at law and titled their petition as one for writ of certiorari and one for declaratory judgment. In the petition for writ of certiorari, the neighbors asked that a writ of certiorari issue because the Board’s decision was “in excess of’ the Board’s “jurisdiction” and was “contrary to law” and “illegal” because the decision “violates the Fifth Amendment to the United States Constitution, and article I, section 18 of the Iowa Constitution” in that the decision “effects a taking of the [neighbors’] private property for a use that is not public.” The petition asked that the decision be annulled and decreed to be void.
In the petition for declaratory relief, the neighbors sought a declaration that the Board’s decision violates the “Fifth Amendment to the United States Constitution, the Fourteenth Amendment to the United States Constitution, and article I, section 18 of the Iowa Constitution.”
Iowa Rule of Civil Procedure 306 authorizes the district court to issue a writ of certiorari “where an inferior tribunal,
board or officer
exercising judicial functions, is alleged to have exceeded its, or his proper jurisdiction or otherwise acted illegally.” (Emphasis added.) Our scope of review is limited to sustaining a board’s decision or annulling it in whole or in part.
Grant v. Fritz,
Thus, here, a petition for a writ of certiora-ri is appropriate to test the legality of the Board’s decision. Our scope of review is limited to sustaining the Board’s decision or annulling it in whole or in part. In addition, the fact that the neighbors may have another adequate remedy, like declaratory judgment, does not preclude our granting relief under Rule 306.
Iowa Rule of Civil Procedure 261 (declaratory judgment) authorizes “[c]ourts of record within their respective jurisdiction [to] declare rights, status, and other legal relations whether or not further relief is or could be claimed.”
The purpose of a declaratory judgment is to determine rights in advance.
Miehls v. City of Independence,
We think the facts here are sufficient for us to proceed under either remedy. In addition, because the facts are not in dispute, we need not concern ourselves with whether we employ a correction-of-errors-at-law review or a de novo review. Our only question is a legal one.
III. The Takings Challenge.
A. The parties’ contentions. The Board’s approval of the agricultural area here triggered the provisions of Iowa Code section 352.11(l)(a). More specifically, the approval gave the applicants immunity from nuisance suits. The neighbors contend that the approval with the attendant nuisance immunity results in a taking of private property without the payment of just compensation in violation of federal and state constitutional provisions.
The neighbors concede, as they must, that then’ challenge to section 352.11(l)(a) is a facial one because the neighbors have presented neither allegations nor proof of nuisance. However, the neighbors strenuously argue that in a facial challenge conteict courts have developed certain bright line tests that spare them from this heavy burden. Specifically, the neighbors say, these bright line tests provide that a governmental action resulting in the condemnation or the imposition of certain specific property interests constitutes automatic or per se takings.
Here, the neighbors argue further, that the section 352.11(l)(a) immunity provision gives the applicants the right to create or maintain a nuisance over the neighbors’ property, in effect creating an easement in favor of the applicants. The creation of the easement, the neighbors conclude, results in an automatic or per se taking under a claim of regulatory taking.
The Board and applicants respond that a per se taking occurs only when there has been a permanent physical invasion of the property or the owner has been denied all economically beneficial or productive use of the property. They insist the record reflects neither has occurred. Thus, they contend, the court must apply a balancing test enunciated in
Penn Central Transportation Co. v. City of New York,
B. The relevant constitutional and statutory provisions.
1. The constitutional provisions. The Fifth Amendment to the Federal Constitution pertinently provides that “ [n]o person shall be ... deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.” The Fourteenth Amendment to the Federal Constitution prohibits a state from “depriving any person of life, liberty, or property without due process of law.” The Fourteenth Amendment makes the Fifth Amendment applicable to' the states and their political subdivisions.
Chicago B. & Q. R.R. v. City of Chicago,
Article I, section 9 of the Iowa Constitution pertinently provides that “[n]o person shall be deprived of life, liberty, or property, without due process of law.” Article I, section 18 of the Iowa Constitution provides:
Eminent domain — drainage ditches and levees. Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury.
2. The statutory provisions. Iowa Code section 352.6 sets forth the procedure for obtaining an agricultural area designation. The application is to the county board of supervisors. Iowa Code § 352.6. This provision also prescribes the conditions under which a county board of supervisors may *314 designate farmland as an agricultural area. Id. An agricultural area includes, among other activities, raising and storing crops, the care and feeding of livestock, the treatment or disposal of wastes resulting from livestock, and the creation of noise, odor, dust, or fumes. Iowa Code § 352.2(6).
Iowa Code section 352.11(l)(a) provides the immunity from nuisance suits:
A farm or farm operation located in an agricultural area shall not be found to be a nuisance regardless of the established date of operation or expansion of the agricultural activities of the farm or farm operation. This paragraph shall apply to a farm operation conducted within an agricultural area for six years following the exclusion of land within an agricultural area other than by withdrawal as provided in section 352.9.
The immunity does not apply to a nuisance resulting from a violation of a federal statute, regulation, state statute, or rule. Iowa Code § 352.11(l)(b). Nor does the immunity apply to a nuisance resulting from the negligent operation of the farm or farm operation. Id. Additionally, there is no immunity from suits because of an injury or damage to a person or property caused by the farm or farm operation, before the creation of the agricultural area. Id. Finally, there is no immunity from suit “for an injury or damage sustained by the person [bringing suit] because of the pollution or change in condition of the waters of a stream, the overflowing of the person’s land, or excessive soil erosion into another person’s land, unless the injury or damage is caused by an act of God.” Id,
Iowa Code section 657.1 defines nuisance and provides for civil remedies:
Whatever is injurious to health, indecent, or unreasonably offensive to the senses, or an obstruction to the free use of property, so as essentially to unreasonably interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof.
Iowa Code section 657.2 is a laundry list of the conduct or conditions that are deemed to be a nuisance. Those that are relevant to nuisances resulting from farming and farm operations include:
1. The erecting, continuing, or using any building or other place for the exercise of any trade, employment, or manufacture, which, by occasioning noxious exhalations, unreasonably offensive smells, or other annoyances, becomes injurious and dangerous to the health, comfort, or property of individuals or the public.
2. The causing or suffering any offal, filth, or noisome substance to be collected or to remain in any place to the prejudice of others.
4. The corrupting or rendering unwholesome or impure the water of any river, stream, or pond, or unlawfully diverting the same from its natural course or state, to the injury or prejudice of others.
Iowa Code § 657.2.
Our cases recognize that the statutory definition of nuisance does not “modify the common-law’s application to nuisances.”
Weinhold v. Wolff,
There are two kinds of nuisances: public and private. We cited the differences between the two in Guzman v. Des Moines Hotel Partners:
A public or common nuisance is a species of catchall criminal offenses, consisting of an interference with the rights of a community at large. This may include anything from the obstruction of a highway to a public gaming house or indecent exposures. A private nuisance, on the other hand, is a civil wrong based on a disturbance of rights in land.... The essence of a private nuisance is an interference with the use and enjoyment of land. Examples include vibrations, blasting, destruction of crops, flooding, pollution, and disturbance of the comfort of the plaintiff, as by unpleasant odors, smoke, or dust.
*315 To fully understand the issues we are about to discuss, we think it would aid our analysis to distinguish between the concepts of “private nuisance” and “trespass.” We made this distinction in Ryan v. City of Emmetsburg:
As distinguished from trespass, which is an actionable invasion of interests in the éx-clusive possession of land, a private nuisance is an actionable invasion of interests in the use and enjoyment of land. Trespass comprehends an actual physical invasion by tangible matter. An invasion which constitutes a nuisance is usually by intangible substances,, such as noises or odors.
In Ryan, we also distinguished between the concepts of “nuisance” and “negligence.” Negligence is a type of liability-forming conduct, for example, a failure to act reasonably to prevent harm. Id. In contrast, nuisance is a liability-producing condition. Id. Negligence may or may not accompany a nuisance; negligence, however, is not an essential element of nuisance. Id. If the condition constituting the nuisance exists, the person responsible for it is liable for resulting damages to others even though the person acted reasonably to prevent or minimize the deleterious effect of the nuisance. Id.
C. The framework of analysis. As the neighbors point out, the federal and state constitutional provisions we set out earlier provide the following framework for a “takings” analysis: (1) Is there a constitutionally protected private property interest at stake? (2) Has this private property interest been “taken” by the government for public use? and (3) If the protected property interest has been taken, has just compensation been paid to the owner? The neighbors contend there is a constitutionally protected private right which the Board has taken from them without paying just compensation. That taking, the neighbors contend, results from the Board’s approval of the agricultural area triggering the nuisance immunity in section 352.11(l)(a). The Board and the applicants concede the neighbors have received no compensation so we need not concern ourselves .with the third step of the analysis: Has just compensation been paid to the owner?
.. 1.. Is there a constitutionally protected private property interest at stake?
a. Does the immunity provision in section 352.11(l)(a) against nuisance suits create a property right? Textually, the federal and Iowa Constitutions prohibit the government from taking property for public use without just compensation. Property for just compensation purposes means “the group of rights inhering in the citizens’ relation to the physical thing, as the right to possess, use and dispose of it.”
United States v. General Motors Corp.,
State law determines what constitutes a property right.
Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
The property interest at stake here is that of an easement, which is an interest in land. Over one hundred years ago, this court held that the right to maintain a nuisance is an easement.
Churchill v. Burlington Water Co.,
a privilege without profit, which the owner of one neighboring tenement [has] of another, existing in respect of their several tenements, by which the servient owner is obliged to suffer, or not do something on his own land, for the advantage of the dominant owner.
Id.
Churchill’s holding that the right to maintain a nuisance is an easement and its definí *316 tion of an easement are consistent with the Restatement of Property:
An easement is an interest in land which entitles the owner of the easement to use or enjoy land in the possession of another.... It may entitle him to do acts which he would otherwise not be privileged to do, or it may merely, entitle him to prevent the owner of the land subject to the easement from doing acts which he would otherwise be privileged to do. An easement which entitles the owner to do acts which, were it not for the easement, he would not be privileged to do, is an affirmative easement.... [The easement] may entitle [its] owner to do acts on his own land which, were it not for the easement, would constitute a nuisance.
Restatement of Property § 451 cmt. a, at 2911-12 (1944) (emphasis added).
Another feature of easements is that easements run with the land:
The land which is entitled to the easement or service is called a dominant tenement, and the land which is burdened with the servitude is called the servient tenement. Neither easements [n]or servitudes are personal, but they are accessory to, and run with, the land. The first with the dominant tenement, and the second with the servient tenement.
Dawson v. McKinnon,
Thus, the nuisance immunity provision in section 352.11(l)(a) creates an easement in the property affected by the nuisance (the servient tenement) in favor of the applicants’ land (the dominant tenement). This is because the immunity allows the applicants to do acts on their own land which, were it not for the easement, would constitute .a nuisance. For example, in their farming operations the applicants would be allowed to generate “offensive smells” on them property which without the easement would permit affected property owners to sue the applicants for nuisances.
See
Iowa Code § 352.2(6);
see also Buchanan v. Simplot Feeders Ltd. Partnership,
b. Is an easement a protected property right subject to the requirements of the just compensation clauses of the federal and Iowa Constitutions? Easements are property interests subject to the just compensation requirements of the Fifth Amendment to the Federal Constitution.
United States v. Welch,
c. Has the easement resulted in a taking?
(1) Takings jurisprudence,, genex-ally. There are two categories of state action that
must
be compensated without any further inquiry into additional factors, such as the economic impact of the governmental conduct on the landowner or whether the regulation substantially advances a legitimate state interest. The two categories include regulations that (1) involve a permanent physical invasion of the property or (2) deny the owner all economically beneficial or productive use of the land.
Lucas v. South Carolina Coastal Council,
Presumably, in all other cases involving “regulatory takings” challenges, the United States Supreme Court engages in a case-by-case examination in determining at which point the exercise of the police power becomes a taking.
Id.
This ad hoc approach calls for a balancing test that is essentially one of reasonableness. The test focuses on three factors: (1) the economic impact of the regulation on the claimant’s property; (2) the regulation’s interference with investment-backed expectations; and (3) the character of
*317
the governmental action.
Penn Cent. Transp. Co. v. New York City,
(2) Physical invasion. The Board and applicants contend the neighbors’ argument fails under both categories of per se takings: physical invasion and denial of all economically beneficial or productive use of the property. The neighbors do not contend the record supports a finding that the challenged statute denies them all economically beneficial or productive use of their property. Accordingly, we restrict our discussion to the physical'invasion category.
According to one commentator,
[tlhe term “regulatory taking” refers to situations in which the government exercises its “police powers” to restrict the use of land or other forms of property. This is often accomplished through implementation of land use planning, zoning and building codes. In contrast, a governmental entity exercises its eminent domain power or acts in an “enterprise capacity, where it takes unto itself private resources and uses them for the common good.” Where the private landowner will not sell the land, the government entity seeks condemnation of the property and pays a fair purchase price to be determined in court. On the other hand, an inverse condemnation claim is sought by a landowner when the government fails to seek a condemnation action in court.
John W. Shonkwiler & Terry Morgan, Land Use Litigation § 1.02, at 6 (1986) [hereinafter Shonkwiler], The neighbors’ challenge here is one of inverse condemnation.
We think it would aid our analysis of the neighbors’ takings argument to discuss those cases where a government entity acting in its enterprise capacity has appropriated private property without first exercising its eminent domain power.
(a) Trespassory invasions of private property by government enterprise. Generally, when the government has physically invaded property in carrying out a public project and has not compensated the landowner, the United States Supreme Court will find that a per se taking has occurred.
See
Shonkwiler § 10.01(1), at 369. For example, in
Pumpelly v. Green Bay & Mississippi Canal Co.,
the Court held there was a taking where the defendant’s construction of a dam, pursuant to state authority, permanently flooded the plaintiffs property.
[W]here real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the constitution.
Id.
In a more recent case, the Court applied the same rule to a state law that authorized third parties to physically intrude upon private property.
Loretto,
(b) Nontrespassory invasions of private property by government enterprise. To constitute a per se taking, the government need not physically invade the surface of the land.
See
Shonkwiler § 10.02(2), at 370. For example, in
United States v. Causby,
the Court held that the frequent and regular flights of government planes over the plaintiffs’ land had created an easement in the lands for the benefit of the government.
The Court held that the flights’ interference with the use of the plaintiffs’ land constituted a taking of a flight easement that had to be compensated on the basis of diminution in the land’s value resulting from the easement.
Id.
at 261-62,
[T]he flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it.... The reason is that there [is] an intrusion so immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit his exploitation of it.... The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think the landowner, as an incident to his ownership, has a claim to it and invasions of it are in the same category as invasions of the surface.... Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. For the findings of the Court of Claims plainly establish that there was. a diminution in value of the property and that the frequent, low-level flights were the direct and immediate cause. We agree with the Court of Claims that a servitude has been imposed upon the land.
Id.
at 265-67,
In
Fitzgarrald v. City of Iowa City,
The United States Supreme Court has allowed compensation for other kinds of interferences short of physical taking or touching of land.
See
William B. Stoebuck,
Condemnation by Nuisance: The Airport Cases in Retrospect and Prospect,
71 Dick. L.Rev. 207, 220-21 (1967) [hereinafter Stoebuck]. For example, in
United States v. Welch,
the plaintiff had a passage easement over a neighbor’s property.
; In
Pennsylvania Coal Co. v. Mahon,
a state statute prohibited coal mining if it were done in a manner to cause subsidence of any dwelling.
Pennsylvania Coal Co. v. Mahon,
Richards v. Washington Terminal Co.
presents a factual scenario closer to the facts in this case.
Richards is viewed as recognizing the taking of a property interest or right “to be free from ‘special and peculiar’ governmental interference with enjoyment.” Stoebuck, at 220. The taking involved “no kind of physical taking or touching — none whatever.” Id. Viewed in this light, Richards “entirely does away with the requirement of a physical taking or touching.” Id.; see Nichols § 6.01, at 6-9 n. 11 (“It is not necessary, in order to render a statute obnoxious to the restraint of the Constitution, that it must in terms or in effect authorize an actual physical taking of the property or thing itself, so long as it affects its free use and enjoyment....”).
(c) Liability of government for a taking by the operation of a nuisance-producing governmental enterprise. With regard to private nuisances,
[t]he power of the legislature to control and regulate nuisances is not without restriction, and it must be exercised within constitutional limitations. The power cannot be exercised arbitrarily, or oppressively, or unreasonably.... It has been broadly stated, as an additional limitation to the power of the legislature, that ... the legislature may not authorize the use of property in such a manner as unreasonably and arbitrarily to infringe on the rights of others, as by the creation of a nuisance. So it has been held that the legislature has no power to authorize the maintenance of a nuisance injurious to private property without due compensation.
66 C.J.S. Nuisances § 7, at 738 (1950).
Thus, the state cannot regulate property so as to insulate the users from
*320
potential private nuisance claims without providing just compensation to persons injured by the nuisance. The Supreme Court firmly established this principle in
Richards,
holding that “while the legislature may legalize what otherwise would be a public nuisance, it may not confer immunity from action for a private nuisance of such a character as to amount in effect to a taking.”
Richards,
A number of state courts have decided takings cases on the basis that the government entity operated a nuisance-producing enterprise.
See, e.g., Thornburg v. Port of Portland,
Typically, a city sewage plant or dump in the vicinity of, but not necessarily directly adjacent to, the plaintiffs land has wafted its noxious smoke, odors, dust, or ashes, usually combinations of these, over the plaintiffs land, with the obvious result of lessening its enjoyment. No physical touching is present, nor do the courts try to equate the municipal acts with touchings. [Several states] have allowed eminent domain compensation in cases of this kind.... More significant than a court’s language is the result it announces, and in this respect all the decisions stand for the proposition that nuisance-type activities are a taking....
Stoebuck, at-226-27; see also Nichols § 6.07, at 6-112 to 6-113 (“[Gjeneration of offensive odors, gases, smoke ... may constitute a taking.”).
The commentator ascribes a name to the theory of these cases: condemnation by nuisance. Stoebuck, at 226. And the commentator has formulated the theory this way: “governmental activity by an entity having the power of eminent domain, which activity constitutes a nuisance according to the law of torts, is a taking of property for public use, even though such activity may be authorized by legislation.”
Id.
at 208-09;
see also City of Georgetown v. Ammerman,
One court long ago anticipated the so-called condemnation by nuisance theory this way:
Whether you flood the farmer’s fields so that they cannot be cultivated, or pollute the bleacher’s stream so that his fabrics are stained, or fill one’s dwelling with smells and noise so that it cannot be occupied in comfort, you equally take away the owner’s property. In neither instance has the owner any, less of material things than he had before, but in each case the utility of his property has been impaired by a direct invasion of the bounds of his private dominion. . This is the taking of his property in a constitutional sense.
Pennsylvania R.R. v. Angel,
Our own definition of a taking is in accord with this concept:
*321 [A] “taking” does not necessarily mean the appropriation of the fee. It may be anything which substantially deprives one of the use and enjoyment of his property or a portion thereof.
Phelps v. Board of Supervisors of County of Muscatine,
As mentioned, the Board’s approval of the applicants’ application for an agricultural area triggered the provisions of section 352.11(l)(a). The approval gave the applicants immunity from nuisance suits. (Significantly, section 352.2(6) allows an agricultural area to include activities such as the creation of noise, odor, dust, or fumes.) This immunity resulted in the Board’s taking of easements in the neighbors’ properties for the benefit of the applicants. The easements entitle the applicants to do acts on their property, which, were it not for the easement, would constitute a nuisance. This amounts to a taking of private property for public use without the payment of just compensation in violation of the Fifth Amendment to the Federal Constitution. This also amounts to a taking of private property for public use in violation of article I, section 18 of the Iowa Constitution.
In enacting section 352.11(l)(a), the legislature has exceeded its authority. It has exceeded its authority by authorizing the use of property in such a way as to infringe on the rights of others by allowing the creation of a nuisance without the payment of just compensation. The authorization is in violation of the Fifth Amendment to the Federal Constitution and article I, section 18 of the Iowa Constitution.
The district court erred in concluding otherwise.
D. The remedy. In
Agins v. Tiburon,
the California Supreme Court held that when legislation results in a taking, the landowner’s remedy is to seek a declaratory judgment action that the legislation is invalid because it makes no provision for payment of just compensation.
Later, the United States Supreme Court had occasion to review the California rule in
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California,
Here the neighbors seek no compensation. Rather, they seek only invalidation of that portion of section 352.11(l)(a) that provides immunity against nuisance suits. We therefore need not concern ourselves with damages for any temporary taking. Accordingly, we hold unconstitutional and invalidate that portion of section 352.11(l)(a) that provides for immunity against nuisance suits. We reach this result under the Fifth Amendment to the Federal Constitution and also under article I, section 18 of the Iowa Constitution.
We reverse and remand for an order declaring that portion of Iowa Code section 352.11(l)(a) that provides for immunity *322 against nuisances unconstitutional and without any force or effect.
We reach this holding with a full recognition of the deference we owe to the General Assembly. That branch of government— with some participation by the executive branch — holds the responsibility to sort through the practical realities and, through the political process, reach consensus in highly controversial public decisions. Those decisions demand our sincere respect. The rule is therefore that “[a] challenger must show beyond a reasonable doubt that the statute violates the constitution and must negate every reasonable basis that might support the statute.”
Johnston v. Veterans’ Plaza Authority,
The same public that constituted the other branches of state government to make political decisions with an eye on economic consequences expects the court to resolve constitutional challenges on a purely legal basis. We recognize that political and economic fallout from our holding will be substantial. But we are convinced our responsibility is clear because the challenged scheme is plainly — we think flagrantly — unconstitutional.
REVERSED AND REMANDED.