*1 Lloyd GOODELL, Goodell, Dennis Goodell, Appellants,
and Scott
v. COUNTY, Iowa,
HUMBOLDT
Doug Wood, Appellees. COUNTY
HUMBOLDT LIVESTOCK
PRODUCERS, al., Appellants, et COUNTY, Iowa,
HUMBOLDT al., Appellees.
et
No. 97-790.
Supreme Court of Iowa.
March *3 Beving,
Eldon L. McAfee of & Swanson Forrest, P.C., Moines, Des appellants for Producers, Humboldt Livestock et al. Gary Brian L. Wirt Myers M. Davis, Brown, Koehn, Roberts, P.C., Shors & Moines, Goodell, for appellants Lloyd Des Goodell, Dennis and Scott Goodell. Brick, Bowers, Gentry, James E. Brick of Stoltze, Swartz, P.C., Levis, Schilling & Des Moines, appellees. for Morain, Paul S. & Burlingame Swinton P.L.C., Moines, Pugh, West Des amici for Iowa, Agribusiness curiae Association of Association, Iowa Cattlemen’s Corn Iowa Association, Dairy Growers Iowa Products Association, Federation, Iowa Farm Bureau Cooperatives, Iowa Pork Institute Iowa (3) Association, Poultry requirements; implements Associa- Producers Association, tion, Turkey groundwater protection policies; or- Soybean Federation, governs L. Iowa dinance 25 air emissions from toxic and Christina Gault Moines, Federation, highlight will regulated Bureau West Des facilities. We Farm pertinent provisions Farm Feder- of each ordinance. amicus curiae Iowa Bureau ation. requirement. permit 1. Ordinance 22— requires any person
Ordinance who de- livestock large sires to construct a confine- TERNUS, facility ment to obtain “notice of Justice. operation” construction or before construc- op- of livestock confinement operation facility tion or commences.2 growing public is a debate erations matter *4 operator proposed The owner or of the facili- us, state. In case livestock the before ty completed application must file a with the producers challenged four ordinances have County containing Humboldt the fol- auditor adopted by County Humboldt Board of the (1) blueprint lowing information: a of the large Supervisors con- that livestock (2) facility; manage- a statement of manure operations. and finement facilities (3) ment, disposal including plan; a manure plaintiffs claim invalid the ordinances are parties supervise who will the the construc- they matter because address a of statewide (4) operation facility; initial of the a tion and concern, county’s authority and the because (5) plan management; for runoff identifica- preempted by legislature. the has been agricultural drainage tile the tion of lines and validity to sustain The defendants seek the protect measures to taken to remedial be a the ordinances as valid exercise (6) integrity; agri- their identification authority. county’s The district sinkholes, wells, drainage cultural natural ar- upheld court all one section of one ordi- ditches, streams, ponds, open drainage tificial county’s nance. we conclude the Because marshlands, lakes, quarries may authority to enact these ordinances has been-' building. affected the new legislature, the preempted the we reverse entry ruling and district court’s remand for required is to forward the The auditor summary judgment plain- in favor County application to the environ- Humboldt tiffs. protection application officer. If mental protection complete, the of- is environmental Background Proceedings. I. Facts and independent investigation ficer conducts facility proposed “complies In A. The ordinances. October of to ensure the statutes, ordinances, County Supervisors Board applicable the Humboldt with all pro- applicable “large four the environmental adopted regulations.” to Once facility complies, feeding facilities.”1 officer concludes the livestock confinement tection county application a matter is forwarded Each ordinance addresses different (1) time, supervisors; county: the same of concern board permit are in- imposes requirement prior neighboring property a con- owners also regulated facility; application. After a operation pending or of a formed of the struction (2) comment, security period public thirty-day ordinance 23 establishes financial for feeding Although "large term the ordinance labels document 1. The livestock confinement "notice,” facility” identically county all four ordi- to it in defined issued a refer permit. appro- nances: opinion a our This name more priately of this describes the function document “Large Feeding Facili- Livestock Confinement may operate a because one not construct operation ty” a means in which livestock facility regulated a unless the has issued weight capacity the animal is: 500,000 Third New International a) cattle, “notice.” Webster's pounds for more than (tinabr. ed.1993) "per- 300,000 Dictionary (defining b) swine, pounds for more than 300,000 granted c) chickens, "1: a warrant or license mit” as written pounds more than 500,000 "> having authority building d) <a <a one turkeys, pounds more than "> fishing "> <a 2: permission, where are or work the livestock can be confined allowance proceed>”). totally roofed. chad their "to areas any if permit require- issue a manure land in Humboldt board must agricultural drainage been into an ments of the ordinance have satisfied. drains well or sinkhole in a that results in manner Any person begins who construction or groundwater. the contamination of facility operation regulated without the In prohibition, ordinance 24 addition to required guilty permit is infrac- facility requires regulated obtain from punishable by penalty of not tion civil more protection officer environmental person day than for each is in $100 permit apply livestock manure on land addition, violation ordinance. draining agricultural drainage wells into provides seek re- sinkholes. (1995).3 lief Iowa Code section 331.307 under court, Section 331.307 allows the ac- provides The ordinance also that the coun- (1) county infraction, tion for a order the ty annually will test such wells sinkholes violation, abate defendant to or cease they to ensure have not been contaminated county to to authorize the abate or cor- by If livestock manure. contamination oc- violation, rect with the costs of such curs, facility’s permit application for land against abatement or correction assessed automatically suspend- of livestock manure is 331.307(9)(c)- defendant. See Iowa Code Any person applies ed. who livestock land (e). required permit guilty manure without *5 penalties of a county infraction with the same 2. Ordinance assurance. 23—financial provided 22. relief ordinance provides person This “no that shall operate large any livestock confinement feed- 4.Ordinance 25—toxic air emissions. ing facility County within Humboldt without prescribes Article one of ordinance 25 the providing to [flinancial first the [b]oard [as- regulated minimum distance that facilities required [o]rdinance.” surance as under this may residence, any be located from other required by The financial assurance ordi- facility, public regulated use area “if the nance be in a surety the form of facility is not able to toxic air emis- confine bond, insurance, or self-insurance. The sions on prohibits regulat- site.” Article two mechanism chosen must that insure funds ed facilities off-site emission of necessary cleanup to meet the costs hydrogen sulfide concentrations excess of for remediation on-site and off-site contami- specified If level. emissions exceed this nation are available when The needed. ordi- level, facility operator the owner or must provides nancé calculating formula for the redesign project, equip- the add abatement projected cleanup and remediation costs. ment, facility. penalties close The for penalties The for violation ordinance 23 violation of this those ordinance mirror specified are the same in ordinance 22.4 other ordinances. 3. groundwater protec- Ordinance litigation B. The lawsuit. This is the 2k — applies large tion. This ordinance live- two declaratory consolidation of actions for operations feeding stock confinement that judgment challenged county’s ordi- apply provides, livestock manure on land. It brought by nances. One action was part: County Humboldt Livestock Producers and person facility
No whose several of against county, its members apply supervisors, shall [ordinance land livestock the board of the individual board 29, laws, August 3. provide These actions were filed on more will current and useful Consequently, they and October 1996. applicable reference to the statutes. Code, governed by the 1995 amended general assembly in 1995 and 1996. Pertinent earlier, incorporates 4. As noted ordinance 22 amendments, including those found in 1995 provided by remedies Iowa Code 331.307. Or- chapter providing Iowa Acts an act for the actually dinances 24 and 25 cite to Iowa feeding operations, of animal are now 333.307, repealed dealing code simplicity, codified in the 1997 Code. For all We auditors. assume the references to references to remainder of Code, errors, typographical 333 are and the opinion will be to the 1997 unless references were intended to be to otherwise indicated. This manner of citation necessity will avoid the to cite to the session parties’ all motions members, response to for an zoning administra- and the pursuant enlargement findings court’s tor, county’s environ- as the who also serves 179(b), to Iowa Rule of Civil Procedure protection officer. A second action mental holding that its ruling court issued an order zoning adminis- and the against dispositive all in the was issues Livestock Goodell, Lloyd Dennis trator was filed suit, case. As for the Goodells’ Producers’ Goodell, of Hum- residents Goodell Scott summary its judgment the court held that hog planned who to construct boldt pertained only validity ruling falling within ordi- confinement facilities all issues ordinances and that other not ad- “large definition of livestock confine- nances’ proceed- reserved for future dressed were operation.”5 Both actions ment ings. declaratory judgment from the sought a dis- challenged plaintiffs appealed court trict The the district court’s plaintiffs’ summary ruling. con- Because judgment and violated the were invalid ruling plain- final as rights. was not to the Goodell stitutional tiffs, permission for an interlocu- granted appeal ruling from which this was appeal tory appeal. did parties’ from the cross-mo- taken resulted respect rulings trial court’s adverse summary judgment question for tions adopt the ordi- (The were constitutional claims re- nances. II. Review. Scope of court.) consideration served later summary uphold judgment We will article The district court concluded that one moving genuine no party “when the shows 25, imposing minimum distances of ordinance fact and it is entitled issue material exists and other facili- regulated between facilities judgment law.” as a matter of C-Thru ties, areas, public residences and use consti- Co., Mfg. Corp. v. Midland Container buildings used zoning tuted of land and (Iowa 1995) (citing R. *6 agricultural purposes. The court ruled this 237(c)). Thus, appeal, Civ. P. on “we must part of ordinance 25 Iowa Code sec- violated (1) genuine issue materi decide whether 335.2, prohibits from counties zon- tion (2) exists, correctly if al fact and the law was ing agricultural land and structures. As a Hawkeye Tri-County applied.” Hegg v. consequence, court article one of the declared 1994). (Iowa REC, 558, 512 559 N.W.2d invalid, summary and granted ordinance 25 case, parties agree is no In this the there plaintiffs provision. judgment to the as to facts; dispute respect material the with to interpretation of disagreement centers on the 22, 23, The district court ruled ordinances those laws the effect of on state laws and county’s 24 and were valid exercises of county’s authority to livestock con- authority. Although rule the court home to operations. simply role finement Our 25, upheld two of also article agree we with district decide whether it was unenforceable until court concluded undisput- application of law to the court’s county complied Iowa had with Therefore, our facts us. review is ed before § 455B.145 section 455B.145.6See Iowa Code Sheridan, City law. Clinton v. 530 at governmental to ob- (requiring local entities (Iowa 1995). 690, N.W.2d 692 acceptance De- tain certificate partment Natural local Resources Authority Preemp- III. Rule and Home pollution program). Accordingly, control air tion. judgment to granted summary court ordinances, validity of the deciding coun county respect with to these with ordinances, ty’s consider two con- must the limitation noted as opinion ordi- All references in this in both further 5. We will refer to the defendants lawsuits jointly county.” Any as “the reference to the two of that ordinance nance 25 relate to article the individual Livestock Producers includes otherwise. unless the context indicates convenience, any plaintiffs in that lawsuit. For plaintiffs” ah named reference to "the plaintiffs includes actions. in both 492 (1)
eepts: authority, higher rule stringent home more than those power abrogate imposed by and state’s unless a state law preempt concepts local These action. and provides otherwise. interrelationship forth their are set in Iowa’s 331.301(6); F. see Sam Schei- county grant of home au constitutional rule dler, Implementation Constitutional Const, thority. Ill, § See' art. 39A Iowa Iowa, Home in Rule 22 Drake L.Rev. (added 1978). 37 in amend. Under this (1973) (interpreting comparable provision 313 amendment, constitutional counties have the dealing city with home rule power “to determine their affairs and authority, legislature’s recognition as the only government,” but extent those city “that the will legislat- and state often be determinations are “not inconsistent with the area”) ing in the Id,7 [hereinafter same Home assembly.” general laws Thus, subject Rule in ]. to this restric- goal grant amendment was counties principles preemption, tion and a county “power to govern rule their local affairs and powers its exercise home rule mat- subject superior authority ment to the ters are also the of state law. Sheridan, general assembly.” PERB, County See Decatur 564 N.W.2d Moines, (citing City Bechtel v. Des (Iowa 1997); (Iowa 1975)). Sioux Police 326, 332 Offi- City, cers’ Ass’n v. Sioux authority. A. home rule (Iowa 1993). parameters constitutional are echoed B. Preemption. Preemption may be ex- Iowa Code. Section 331.301 sets forth the press or implied. preemption Both forms of general scope county’s power aof and its prohibi- find their source the constitution’s limitations: power tion of the exercise of home rule may, except expressly A limit- with “inconsistent the laws of the Const, Constitution, if ed not inconsis- Ill, assembly.” 39A; art. general assembly, tent the laws of the Iowa, see Home Rule L.Rev. Drake any power perform any exercise func- (“That power must not be appropriate protect tion deems inconsistent the laws of the General preserve rights, privileges, proper- Assembly pre-emption raises a problem.”). ty residents, or of its and to Chapter 331 further defines this limitation: preserve improve peace, safety, “An of a county exercise is not incon- *7 health, welfare, comfort, and convenience sistent with a state law unless it is irreconcil- of its residents. able with the state law.” Iowa Code 331.301(1). § Pursuant to this § provision, authority counties now the have to particular power act “unless a has been de- Express preemption. Express 1. by nied them statute.” Des Moines of preemption occurs the when assem Iowa, v. Master Builders 498 N.W.2d of bly specifically prohibited has local action in (Iowa 1993). 703-04 an area. E.g., Corp. City Chelsea Theater v. concept of home rule envisions (Iowa Burlington, 258 N.W.2d 373 possibility that state govern and local 1977) (holding expressly proscribed state has regulate will in
ments the same area: materials). local of obscene Obvi ously, any regulates A local law that an shall not in area set standards and requirements legislature specifically which are lower or has less strin- stated cannot gent imposed by than subject those be the of local action is irreconcilable may set requirements standards and which with state law. III,
7. Article provision section 38A of the Iowa interpre- Constitu- tutional authoritative on our tion, gives Therefore, added authority. amendment 25 in tation of home rule subject authority cities home throughout opinion, rule to same cite this we home respect city limitation. With interchange- the issues before us rule cases and home rule cases case, interpretations ably. in this we find of this consti-
493 * Appeal. Implied preemption. Implied IV. Issues ways. in two When preemption occurs plaintiffs claim the trial court incor- “ permitted by a ‘prohibits an act rectly adopted by ruled that the ordinances statute, permits prohibited an act Humboldt were within its ” statute,’ ordinance is considered incon authority. They claim the ordinances are preempted. City state law and sistent with (1) invalid for several reasons: the ordi- Gruen, 340, 342 Des Moines v. nances a matter statewide con- (Iowa 1990) (quoting City Council cern, beyond county’s authority Bluffs which is (Iowa 1983)). Cain, 342 N.W.2d affairs”; (2) “local the ordinances violate over zoning prohibition agricultural of local 335.2; in land and structures found Implied may also occur preemption (3) comprehensive nature of regula- subject legislature has “cover[ed] when the feeding operations tion indicates in by statutes such a manner demon legislature preempt gov- intended legislative intention that field strate area; regulating in ernment from Cain, preempted state law.” directly the ordinances conflict with state 812; Buday A. & Victoria see also Beth statutes and rules.8 Braucher, McQuillin Municipal Corpora A. vol.) (3d 15.20, § tions at 109 ed. rev. in As we summarize the issues before us (“Where field, preempted the state has case, it important think also to identi- we subject regulating is in local law the same not before us. This fy issues are in must consistent with the state’s transcendent issues that we de- distinction —between terest, cide and issues cannot decide—is rooted or not the terms of the local whether played legislative in the different roles actually legis law conflict with the statewide judicial system gov- our branches lation.”) McQuillin Municipal [hereinafter leg- The chief characteristic of ernment. fact Corporations ]. mere “[T]he islative function is the determination broad addressing has enacted policies principles for the conduct soci- subject mat not mean that the does ety’s Singer, J. affairs. See Norman Suth- McQuillin completely preempted.” ter 1.03, Statutory Construction at 5 erland 15.20, Municipal Corporations at 107. As (5th 1994). legislative ed. These statements below, greater detail Iowa law we discuss policies are principles and known stat- expression requires legislative some branch, judicial See id. The review- utes. preempt authority, intent action, legislative ing tran legislative some statement the state’s legislature’s enact- determine whether in a regulating scendent interest in area and valid. See id. ments constitutional approach uniform manner. This is consis 2.01, A court cannot refuse to en- chap legislature’s tent statement ground that it is un- force a statute on the county may its ter 331 that exercise “[a] id.; v. Illinois wise. See see also Hines general powers subject only to limitations (Iowa R.R., 284, 289 Cent. Gulf *8 imposed by a law.” expressly 1983) (“In duty construing statutes it is our 331.301(3) added); (emphasis accord intent; legislative the to determine wisdom (“Limitations Gruen, on a 457 N.W.2d at concern.”). legislation the is not our not municipality’s over local affairs are in the background distinctive and With this imposed by they legis implied; must be the legislature and the roles of the different lature.”). law, respect statutory we now courts with to specific We turn now to the issues before to ease before us. this matter turn interest, public our court limited deter- appeal. us in this 621, Anderson, 551 N.W.2d claim the district Iowa Lake Ass'n 8. The Livestock Producers also erroneously (Iowa ("Parties 1996) affidavits court considered offered cannot assert issue county. do, claim was first raised in This reply they brief. When for the first time in a Therefore, reply Livestock Producers’ brief. issue.”). court will not this consider Valley appeal. See will consider it on Sun not mining County ity, exercising procedures whether Humboldt had the and the for challenged authority. generally to enact the ordinances. ch. See The wisdom of those ordinances is not before zoning power One limitation us. Nor is it our role to decide local express preemption county zoning whether is the government agricultural should allowed land and structures: operations. ques- livestock confinement The adopted under [N]o this whether, simply tion before us under land, applies houses, bams, farm farm county constitution can outbuildings buildings farm other regulate in this area. primarily adapted, structures which are area, reason of nature use for for Authority V. Home Rule the Ordi- —Do agricultural purposes, while so used. Regulate nances a “Local Affair”? Although containing 335.2. act plaintiffs regula The contend provision not purpose did state the of the opera feeding tion livestock confinement exemption, predecessor having bill is a They tions matter of statewide concern. exemption same agricultur- asserted conclude, therefore, operations that these are exception county zoning al was “intended contemplated by “local affair” as protection the farmer and his invest- Const, art. amendment. See ment his land.” H.F. 1947 H.J. 587 Ill, (giving § 39A counties home rule author (comments explanation); Note, see ity power “to determine their local af Iowa, County Zoning in 45 Iowa L.Rev. reject government”). fairs and this as We (1960); Hamilton, see also Neil D. Free- Ensuring operations sertion. that livestock Understanding Agricul- dom to Farm! within a conducted such a Exemption Iowa, Zoning tural manner as to avoid contamination of envi (1981-82) (“the 31 Drake L.Rev. enjoy ronment and interference with others’ exemption of section [now 358A.2 their property ment use of is a matter significant 335.2] was a statement and, therefore, local concern is a af “local ”). ‘freedom to farm’ meaning fair” within the parties agree The the ordinances enacted amendment. County apply Humboldt struc- land and however, A may, local matter also agricultural tures used purposes. importance. have statewide See 2 Dennis County, Kuehl v. Cass McQuillin Jensen & O’Gradney, Gail A. Mu (Iowa 1996) (holding hog facility confinement 4.85, (3d nicipal Corporations at 203 ed. exempt county zoning was from regulations vol.). Consequently, characterizing 1996 rev. 335.2). fighting under section issue is challenged as a whether of the ordinances constitute an prevent local affair does not adopted [335]”; “ordinance ... chapter under imposing through regulations uniform words, in other zoning are the ordinances state, so, out the should it choose to do nor regulations? prevent does it regulating the state from area in such a manner preempt as to adoption. Procedure B. control. See id. We turn now to an exami asserts ordinances were enacted has, indeed, nation of whether the state pursuant to authority granted the home rule preempted local regulating authorities from pursuant 331 and not zoning to the operations. livestock power granted in chapter 335. The points out it comprehen did consult its Express Preemption
VI. the Ordi- —Do plan prior sive to enactment of the chal *9 County nances Constitute Invalid lenged ordinances nor it did follow the other Zoning Agricultural Land and of procedures chapter outlined 335. See Structures? §§ Iowa Code But chapter 335.6-.17. 331 County zoning authority. A. any Code zoning power mandates that “shall be chapter 335 general establishes au- zoning chapter exercised accordance with 335.” counties, thority for scope § the of provision such author- Id. This makes it
495 county’s goal protecting of its quently, to the county does not have choice clear that a citizens from the un- natural resources and chapter or under 331 an ordinance enact operations is of confinement wanted effects regulation chapter If constitutes the zoning pow- with the exercise of as consistent proce- county must follow the zoning, the of as it is an exercise the er of subject to the limitations and be dures , authority. rule home Thompson v. Hancock chapter 335. See 1995) (Iowa 181, 183 County, 539 N.W.2d zoning chap- D. under What constitutes incorporat- exemption is (holding agricultural placed on these ter 835? If the label ordi- zoning regulations under enacted ed into they purpose for nances the were and 331). authority chapter of Conse- determining us in not assist enacted do agricul- the county may not avoid quently, a prohibited regula- they zoning whether zoning by labeling exemption simply tions, tural what the test? We think we must is of home rule ordinance an exercise necessarily wording the of the start with of procedural requirements ignoring chapter and the interpret scope to the of statute itself Sews., 310, Acquisition Land King, .See 545 335. See Collins N.W.2d Comm’rs, (Iowa 1996) (“In County interpreting Inc. v. Clarion Bd. a statute of necessarily begin 605 A.2d the Pa.Cmwlth. statute’s lan- (“[T]he municipality is not intent of guage.”). stated respect question of controlling with to the zoning power reg of The the ren- the of an ordinance
whether substance by chapter is described the ulated ordinance.”). zoning ders it a statute itself: brings That Purpose C. ordinances. of 335.2, Subject board of to section the argument us another made the supervisors may by regulate and challenged the support position its that structures, height, number of restrict the The zoning regulations. are not structures, buildings and size of and other purpose of ordi- county points out the occupied, percentage may of lot that usage, “to land nances is courts, yards, open size other and protect safeguards integrity create density population, and the spaces, the in Humboldt Coun- environmental resources structures, buildings, use location and from ty potential resulting hazards residence, trade, industry, or and land for health, acts,” protect permitted and to “the restrict, regulate, purposes, other resi- safety and welfare Humboldt pur- prohibit the for residential use contends, it ordi- Accordingly, dents.” tents, trailers, portable poses county’s police are an exercise nances portable potentially structures. Nebergall, power. See Gravert v. added). (emphasis The 335.3 (Iowa 1995) (stating the “may provides that the board statute further pass authority “to laws police power is ... county ... into districts divide health, public safety, and promote that may regulate within such districts welfare”). construction, erection, recon- restrict struction, alteration, repair, or use build- purpose regulations does But (em- or land.” 335.4 ings, structures classifying them as the little to assist us added). any requires phasis statute general police power or the exer- exercise of adopted pursuant regulation Indeed, zoning zoning power. cise of objectives, in- enumerated advance certain is, definition, an exercise of general cluding protect health and “to Montgomery v. county’s police power. See §Id. 335.5. welfare.” Supervisors, 299 County Bd. Bremer (Iowa 1980) statute, (“Zoning plaintiffs argue deci- Based on this police power regulates any county sions are exercise health, safety, buildings protect land to promote morals order and “use” general zoning. welfare society.”); public’s also 335.5 health see challenged responds or- protect objective zoning “to (stating one welfare”). zoning because not constitute dinances do and the Conse- health *10 496 zones,
they regulate usage by part, land do not district. as of “[division land into and zones, points challenged regu- It ordinances out the regulation within those of both the apply uniformly an activity late and physical across usage nature of land and the dimen- county, irrespective of district classifica- including sion of height[,] uses setbacks and county’s understanding area”) tions.9 think the We (emphasis added); minimum 8 J. Jef- zoning power of the distinction between a frey Timothy Bjur, McQuillin Reinholtz & P. police general respect and to (3d 25.07, Municipal Corporations § at 27 regulation activity of an on land is cor- vol.) ed.1991 rev. (“‘Zoning’ has been de- rect.10 legislative fined as division of a communi- ty into only designated areas which certain Historically, regulations zoning took the permitted. uses of land or structures are of separating geographic form areas accord governmental ... regulation term infers ing zoning to specifying districts and the uses of buildings according uses land and to permitted in each district. See 1 Patrick J. areas.”) or (emphasis districts add- Rohan, Zoning and Land Use Controls defined (“A ed); 25.53, § zoning id. 172 at ordinance 1.02[1], (1991) § 1-6 Zoning at [hereinafter is one purpose the nature and is to and Land Use Zoning ]. Controls has ex regulate buildings uses of lands and accord- however, panded, beginnings in since its districts, areas, (em- locations.”) ing to or early century today’s twentieth and land use added); phasis Zoning and Land Con- Use regulations far are more flexible and com 1.02[1], § trols (“Zoning at 1-6 ordinances plex. Zoning See 6 Land and Use Controls adopted divide land into 40.01[1][b], 40-5; § see also Plaza Recre different districts, only permit and to certain uses 246, 249, ational Ctr. v. City, Sioux 253 Iowa district.”) (emphasis within each zoning add- 758, (1961) (upholding city ed); Zoning and Land Use Controls zoning types ordinance that restricted the (“The 40.01[l][a], at 40-03 central thesis bowling alleys allowed in a D-l district to zoning is that is a proper place there permit consumption those “which do not use.”) added). every (emphasis intoxicating premis liquor beer on the es”). regulations Zoning may now take the It is this fundamental attribute that is “performance form of controls” to limit the missing ordinances; challenged they in the occurring particular uses in a district. See 6 regulate activity irrespective of loca Zoning Land Use Controls Thus, tion activity of that within county. 40A.03[1][b], at 40A-21 to 40A-23 (noting although the advance the “traffic, noise, dust, the use of standards for health and the community, welfare of odors, problems” like other they by regulating do not do so usage uses). limit land district. See Batavia v. Despite expansion type Allen, regulation 547, in the 545, 218 Ill.App.3d 161 Ill.Dec. imposed ordinances, by zoning 239, (1991) 597, (holding fundamen- N.E.2d tal attribute of use by district requiring ordinance taverns to close doors See, e.g., Zoning § remains. 83 Am. during Jur.2d and windows business hours awas (1992) (“The very zoning essence of licensing is zoning provi restriction and anot the territorial division land regulates into use dis- sion because “it establishments according tricts conduct, the character of the type land based on the they business buildings, suitability location”); of land Square based their Lake uses, buildings particular uniformity Hills Condominium Ass’n Bloomfield use.”) added); (emphasis Township, Black’s Law Dic- 437 Mich. (6th ed.1990) tionary (defining “zoning,” 326 (holding regulating ordinance boat county's zoning pur- 9. We note the zoning Our discussion of what constitutes ports concept applied regula- agri- restrict location of limited to confinement use Zoning regulation may tion. also take the form validity culture the A-l and A-2 districts. The physical property usage, restrictions on such light of this of section 335.2 restrictions, height and area and architectural before us. Rohan, Zoning controls. See 1 Patrick J. 1.02[1], (1991). Land Use Controls at 1-7
1QT zoning zoning regulation by a of dis- launching was not ordi- characteristic docking and — activity, it an and trict. regulated because nance buildings according land not the use of Hawkeye in applied this distinction We Zalak, districts); Islip v. 165 A.D.2d Town of Advertising, Inc. v. Board Ad Outdoor of 306, (holding 311 566 N.Y.S.2d (Iowa 1984), justment, 356 544 a case recycling regulating stations was ordinance city interpreting chapter zoning the stat regulated zoning not ordinance because it a case, plaintiff ute. In that the wanted to out). activity it was wherever carried billboard, twenty-six-foot-high a the erect but city’s sign ordinance limited billboards contrary note a conclusion would lead We Adven, Hawkeye twenty feet. Outdoor Hagen result. See v. Texaco an absurd plaintiff sought N.W.2d at 546. The a vari Inc., Mktg., Refining & adjustment, of ance from board (Iowa 1995) (stating court seeks a reasonable act no board declined to basis had of a will “avoid ab- construction statute that jurisdiction. jurisdiction question Id. The of results”). plaintiffs argue surd sign whether the was a turned on ordinance substantially restrict the ordinances ordinance, subject zoning variance zoning regulations. are use of land and hence board, city’s exercise of the any regulation of of But that could be said authority. sign We Id. held the activity activity human cus- human because ordinance, zoning in was not a ordinance tomarily land or in a structure cm occurs on part, zoning, because it not “deal did Islip, at 311 land. See Town 566 N.Y.S.2d restrictions of that sort.” Id. character We (noting zoning is not a ordinance “zoning regu “which ized measure” one land”). “merely because it touches use property designated use of in ar lates the activity any regulation of human Because added). (emphasis eas.” regulation as a could be characterized land, the classification of an use of one’s adopted Hum- ordinances Because that zoning on the basis land boldt do use regulation affects the use of land would make district, they not an coun- are exercise city zoning every ordi- chapter ty’s zoning power under 335. There- nance, proce- subject to the restrictions and fore, subject to the the ordinances are chapter dures exemption We agricultural of section 335.2. agree with the court’s conclusion that district legislature did not We confident un- challenged are not invalid to have such a broad intend chapter 335. der example, application. For section 335.5 re- quires any zoning regulation “be made Implied Preemption the State VII. —Has plan”11 comprehensive with a accordance Completely Occupied the Field of regulations farther that shall be “[s]uch Operations? Feeding Livestock consideration, among with reasonable made so plaintiffs assert the things, other as to character area extensively regulated peculiar suitability fully livestock the district and (Emphasis feeding operations regulation particular uses.” such area added.) Additionally, requires regulato- section 335.4 would be inconsistent They argue regulation of any. ry also regulation or restriction must “be framework. operations buildings or kind is a matter uniform for each class district, be uniform throughout regulations each but the statewide concern and should on the nature of the differ from those across the state. Based one district other added.) plaintiffs (Emphasis regulated, to be claim districts.” The statute evaluating preempted. clearly contemplates that land local laws are use begin with a arguments, will these review under have fundamental property." Zoning comprehensive plan potential 11. A "has been defined as uses of 1.02[3][b][iii][A], general plan at 1-19 direct the use and control and Land Use Controls added); (emphasis City Ely, development property municipality accord Wolf v. 1992). (Iowa dividing according present it into districts to the *12 legal principles in guiding quoted opinion, im- have been earlier in they plied preemption. repeating: bear may, Applicable analytical county except 1. A expressly A. framework Iowa, Constitution, adoption Since the of home rule in limited and if not in- recognize preemption have to continued consistent the laws may legislature occur when the has “cov- assembly, any power perform exercise and subject by er in such statutes a manner [ed] appropriate pro- function it to deems legislative as to demonstrate a intention that rights, preserve privileges, tect and Cain, preempted by the field is state law.” county property of the its and resi- 812; Gruen, at 342 N.W.2d accord 457 dents, preserve improve to (“A municipal at 342 N.W.2d ordinance also health, welfare, comfort, peace, safety, preempted by state law when the ordi- convenience its residents.... nance invades area law reserved itself.”) Cain, legislature (citing to 342 county gener- 3- A exercise its 812). principle Although N.W.2d at powers subject only al to limitations ex- state, simple to application its is less obvious. pressly imposed by a law. state parties approach Both counsel a broad to An exercise of a is not ascertaining implied preemption. They ward inconsistent with a state law unless it is suggest only that the court consider irreconcilable with the state law. statutory regulatory treatment live operations, feeding stock also but the nature the issues be addressed state and A6. shall not set standards and essence, they in laws this area. ask requirements which are strin- lower less policy the court to make a decision as to law, gent imposed by than those state regulated whether this area should be on a may set requirements standards basis, simply statewide rather than to decide higher stringent which are or more than regulated whether this area has been in such imposed by those unless way legislature’s to evidence the intent provides otherwise. area regulation. reserve the for uniform 331.301; 364.1, §§ accord id. plaintiffs cite several cases from other .2(2)-(3), .3(3) rule). (governing city home jurisdictions have, in which the courts in consistently We have applied endorsed and varying degrees, considered the nature of the principles interpreting these in Iowa’s home being regulated matter and the need E.g., rule County, amendments. Decatur 564 uniformity for statewide as one factor in 397-98; Sheridan, N.W.2d 530 N.W.2d at determining whether there has been an im 691; Ass’n, City Sioux Police 495 Officers’ plied preemption E.g., of the field. Enviro 693-94; Gruen, N.W.2d 457 N.W.2d at Idaho, Servs. Inc. v. Owy- safe hee, 341-42; Cain, 812; Bryan 342 N.W.2d at v. 687, 998, 1000 (1987); 112 Idaho 735 P.2d Moines, 685, Des 261 N.W.2d 687 City of Fernale, 622, Gora v. Mich.App. (Iowa 1978). It would be inconsistent with 840, vacated, (1995), 533 N.W.2d amendment, Iowa’s our 875, (1996); Mangold Mich. prior home rule statutes and this court’s Village Richfield, v. Midwest Co. to imply preemption cases argu- based on an 347, (1966); Minn. 819-20 regulation ment that statewide of an area is
Halpem
County,
v. Sullivan
171 A.D.2d
preferable to local
in
regulation,
the absence
(1991).
574 N.Y.S.2d
expression
legislative
of an
intent
com-
analytical
employed
pletely regulate
framework
in question.
the area
There-
cannot, however,
in
fore,
these states
parties’
trans
we decline the
invitation to
ferred
our state
engage
analysis
because the home
in wide-ranging
of whether
provi
statutes
these states do not
regulation
include
statewide
op-
of livestock
desirable;
sions
similar
those found
Iowa law
merely
erations is
our role is
setting forth the breadth
of home rule au
ascertain whether the
has demon-
thority. Although
provisions
some of these
strated its intention to handle livestock feed-
City Police
exclusively
ba-
cers’ Ass’n case. See Sioux
operations
on a statewide
mg
Offi-
(consider-
Ass’n, 495
at 694-95
sis,
desire that such
cers’
has demonstrated its
anti-nepotism policy).
ing local
subjected to uniform
operations be
state.
across the
helpfully
cases can be
These
contrasted
cases in which we
A
review of the few
brief
this court held a
with an earlier case which
theory
subject-wide
case,
have considered
preempted.
was
This
local ordinance
guidance
analysis
preemption provides
our
Engledow,
258 Iowa
Vinton
*13
of
us in this case. As we
of the issue before
(1966),
the source for
tions
case
statewide.
regulations
we look to
con-
the statutes and
Implied Preemption
VIII.
the Or-
—Are
trolling
operation of
the construction and
dinances Inconsistent With State
livestock feeding facilities to determine
Law?
they
expres-
whether
necessary
contain the
A.
principles.
General
As not
preclude
sion
legislative
intent
above,
ed
exercise
home rule
regulation.
power
cannot
“inconsistent
the laws
B. Application
law to
facts.
Const,
assembly.”
art.
plaintiffs rely generally on the extensiveness
Ill,
39A;
accord Iowa
331.301.
regulations governing
Thus,
grant
constitutional
operations
support
argument
their
“carefully
as to
qualified
withhold
so
*14
fully occupied by
this area has been
grant
power
where it conflicts with [a]
discussed, however,
legislature.
have
As we
Gravert,
state statute.”
501
complaints
to deal with local
of discriminato-
government
“set standards
higher
ry
more
conduct
601A.
requirements
under
Iowa
772;
City,
Rapids
imposed
law.”
264 N.W.2d at
Cedar
Hu-
stringent than those
Comm’n,
398-99;
Any
Rights
222
at
Iowa
be- man
N.W.2d
distinction
(1973) (now
that is inconsistent
see also Iowa Code
601A.12
tween a local ordinance
(1997)).
merely
one that
sets a
codified
216.19
We
state law and
noted, however,
higher
requirement
is at best
both section 601A.12
standard
Nevertheless,
interpret
city
required
that any
we strive to
rule amendment
subtle.
way
as to
it in
local law be consistent with state
statute in such
render
statutes.
constitution,
773;
City,
in conflict
Iowa
264 N.W.2d at
Cedar
harmony with the
Comm’n,
Bd.,
222
it,
Rapids
Rights
v. Iowa
Human
see Patterson
Bonus
N.W.2d
(1955);
1087, 1091-92,
71 N.W.2d
at 398. We
the local
concluded
Hedin,
Guardianship
chapter 601A
in-
see
In re
inconsistent with
also
were
(Iowa 1995),
they
because
not follow the
because where
valid
did
statuto-
exists,
prevail,
ry
chapter. City
scheme
in that
conflict
the constitution must
established
Patterson,
1091-92,
City,
(invalidating
Iowa at
at 773
see
provide
a local
N.W.2d at 4.
ordinance that did
administrative determination
existence
merely
a state
sets a stan
When
discriminatory practice);
of a
Rapids
Cedar
dard,
setting
higher
a local law
standard
Comm’n,
Rights
Human
402-
conflict with the
law and
would not
(holding
invalid
local ordinance
because it
*15
under section
would be authorized
provide
judicial
did not
for
review adminis-
easily
concept
This
is most
our
illustrated
discrimination).
trative determination of
employees.
dealing with civil service
cases
give
Another
that could
situation
rise to
consistently
This court has
held
inconsistent
where the
local laws is one
state
employees
examinations for civil service
es
activity
pursuit
upon
has
of an
conditioned
chapter
tablished
Iowa Code
400 are
compliance
requirements. Any
with certain
employment
pro
criteria for
or
exclusive
attempt by
to
government
a local
add to
City
motion. See Sioux
Police Officers’
requirements
those
conflict with
would
Ass’n,
694; Bryan,
b. The or production operations effect on negligent operation of the animal re- caused feeding operation. accomplishes veals that the ordinance animal expressly same result as would an ordinance 657.11(2)-(3). presumption § Id. This is a “[r]equir[ing] the of a nuisance.” abatement any defense for action 331.384(l)(a). See Iowa Code arising feeding out of the care of ani- mals; handling transportation or regulates emanating Ordinance 25 odors animals; disposal or of ma- treatment operations by setting from confinement animals; resulting transpor- nure limit on off-site “toxic air emissions.” It manure; application tation and of animal makes an uncorrected violation of the ordi- noise, odor, dust, and the creation of infraction, county thereby nance allowing arising feeding oper- fumes from an animal injunctive county to obtain relief in a civil ation. Consequently, virtue of action. §Id. intent of the The “enjoin can and abate” an placing limitations on nuisance suits feeding operation, animal within meaning against feeding operations clearly animal upon showing a mere forth in the set statute: operator comply has failed with the coun- purpose protect of this section is to ty’s standards. agricultural producers manage animal who In the absence of ordinance operations according their to state and seeking facility to close a that emitted toxic requirements from costs of de- federal have to show a odors would violation of state suits, fending negatively nuisance presumption law overcome the rebuttable impact upon competitive Iowa’s economic of section 657.11 clear and convincing position discourage persons from en- proof facility “unreasonably that the and con- tering agricultural production. into animal tinuously interferes” with the comfortable promote This section is intended to enjoyment property any of life or and that expansion agriculture of animal in this injury proximately negli- “is caused by protecting persons engaged in the gent operation” facility. feeding of animals. The care 657.11(3) added). (emphasis To state the assembly competing all inter- balanced way: pre- situation another section 657.11 protect ests and declares its intent to injunction against an animal vents preserve agricultural production operation produced by based on odors operations. operation certain unless conditions are met. 657.11(1) added). (emphasis §Id. Ordinance 25 allows the same relief without turnWe now to the ordinance. Or requiring county to meet these condi- purport dinance 25 does not abe nuisance Thus, permits tions. ordinance 25 what the ordinance, although county’s statute, 657.11,prohibits. authority clearly regu includes the late activities offensive to the senses. See id. We hold there is a direct and irreconcilable 331.384(l)(a) (allowing to “[r]e- conflict between the ordinance and section nuisance, quire earlier, public any the abatement of a 657.11. As noted local ordinance manner”). private, reasonable legislative must remain faithful to the intent expressly classify underlying failure to a violat a state statute. See Master Iowa, 704; ing facility as a nuisance does not end our Builders inquiry, however. City, We look to the substance 772-73. As one ordinance, label, states, not its to determine “the fact that a local ordi whether it conflicts with a expressly state statute or nance does not conflict with the regulation. legislative Van Baale v. Des statute not save it when will Cf.
purpose in enacting the statute is frustrated general To the extent the authoriza McQuillin by Municipal pollution programs tion of air the ordinance.” 5 conflicts with 15.20, express special protection Corporations gov § If a of animal local feeding operations by 657.11, afforded section ernment could avoid the state’s limitations on prevail. § latter statute must See id. 4.7 injunctive against feeding relief an animal (stating where an irreconcilable conflict ex operation emitting by simply offensive odors ists between a special statute an passing providing for such re statute, special prevails). statute Conse limitations, purpose lief without such quently, county’s general power regu enacting section 657.11 quality late air cannot be used to defeat the seriously Thus, would be undermined. ordi unique state’s production treatment of animal nance 25 does not remain faithful to the facilities. 657.11, legislature’s intent in enacting section legislature’s frbut rather circumvents the re Summary. IX. enjoining operation strictions on of live Zoning A. exemption. The ordinances stock confinement facilities that emit offen by enacted Humboldt are not an By eliminating 'negligence sive odors. county’s power. exercise of the zoning component 657.11(3), of section apply activity to the large live- nuisance allows relief without the showing' stock confinement feeding operations wher- mandated state law. Under these circum ever such operations are located within the stances, impossible credibly it is character Therefore, county. the ordinances lack the merely ize setting á more essential zoning feature of a ordinance —the stringent standard. It constitutes a frontal regulation of use district. Because the and, such, assault on section 657.11 is not zoning regulations, ordinances are not valid exercise of the agricultural exemption chapter 335 does authority.17 apply. chapter Although ®ur J/.55B. Effect of Implied preemption B. ani- field of decision that ordinance 25 conflicts with sec- malfeeding operations. Although legis- unnecessary tion 657.11 makes it to consider extensively regulated lature has livestock plaintiffs’ contention that the ordinance feeding operations, expressed it has not 455B, chapter appro- also conflicts with it is prohibit regulation desire to local that does priate potential to address a conflict between not conflict with state statutes or rules. provisions chapter 657.11 and the Therefore, preemption we find no of local county points 455B. The out that feeding opera- in the area of animal specifically 455B pollution authorizes local air Furthermore, reject parties’ tions.' programs. control Iowa Code suggestion that the court decide whether the 455B.144(1) § (“Any political may subdivision pervasive state has a in the interest area to pollution program conduct air control regulated regulation whether local jurisdic- within the boundaries its would have unreasonable adverse effects on tion_”). pollution”'is The term “air de- as a whole. Consideration of these presence fined to include the of contaminants contrary prin- factors would be to established “unreasonably the air that with Iowa, interfere[ ] ciples preemption as mandated enjoyment property,” of life and id. pre- 331. The court not find 455B.131(3), strikingly definition similar- emption legisla- of an entire area unless the “nuisance,” definition of which also expressed ture has its desire for statewide includes the element of in- uniformity expressed “unreasonabl[e] or has otherwise enjoyment preclude the comfortable intention terfer[ence] of a property,” of life or complete id. 657.1. field. prevent injury person damage property
17. We note that 657.11 would not to a enforcing governing proximately comply state from its own laws con- caused failure to operations. applies finement Enforcement ... of state laws a state statute or rule which to the presumption operation.” is unaffected because the rebuttable animal § 657.11(2) added). §by apply (emphasis created 657.11 does not where "the *21 problem interpretation that arises in The with state laws. Ordinance C. Conflict present dispute is how to determine conflicts with section (permit requirement) provides “state law otherwise” as whether laws and rules establish- 455B.110 and state county regulation. of a substance for animal ing permit requirements (financial operations. assur- Ordinance applicable state law As ance) permit- with the state’s also conflicts imposes express regula- limitation on local operation 22, 23, ting requirements for the live- in this area. As to ordinances tion express regulation confinement facilities. Ordinance limitation on local stock law, but, in protection) conflicts with sec- is not contained state as the (groundwater 455B.172(5), jur- opinion suggests, of the court such limita- grants exclusive tion which clearly implied from tions are the nature and disposal to the DNR to isdiction scope regulatory It of the state scheme. from confinement facilities. of animal wastes necessary (toxic emissions) becomes to decide whether thus air Finally, authority may implied on local limitations 657.11, places conflicts section which regulation. preclude suffice local limitations on nui- comprehensive strict and feeding opera- against sance suits in appellees urge that order to stem The County’s or- Consequently, tions. Humboldt regulation any county pow- limitation on local dinances are invalid and unenforceable. in expressly er be stated a state stat- must Bryan in ute. Our decision Des Disposition. the district D. We reverse Moines, (Iowa 1978), ruling remand these consolidated court’s cities, involving suggested home rule for entry for the cases to the district court authority limitations on local must be ex- plaintiffs. summary judgment in favor of the pressly imposed. That conclusion was based AND REMANDED. REVERSED 364.2(2), on Iowa Code section which states city may general grant
that a exercise its “subject power only home rule to limitations justices except All concur CARTER expressly imposed by city A state law.” NEUMAN, JJ., specially; who concur provision, relating similar home HARRIS, J., SNELL, part; who dissents (“coun- 331.301(3) rule, is contained section C.J., J., McGIVERIN, dissents; who ty may powers subject general exercise its LARSON, J., part. take no who only expressly imposed by limitations CARTER, (specially concurring). Justice law”). are, however, state There other stat- bearing utes on this issue that were not opinion I concur in the of the court. I Bryan considered in the case. These stat- my separately write order to state views suggest expressed that the views in that utes why correctly rejected toas the court has egress concerning case the need for limita- arguments appellees on Iowa based authority of local were incorrect. tion 331.301(6)(1995). section “ex- requirement The limitations be 331.301(6) provides: Section imposed” gen- pressly to limitations on refers A not set shall standards and statutory grant powers. eral home rule requirements which are lower or strin- less general powers home rule for counties is law, gent imposed by than those in section From the- contained may outset, requirements provi- set standards and powers these are to the higher stringent pursuant may or more than those thereto so that local action imposed by general unless a state law be “inconsistent with the laws of the SSl.SORl).1 provides assembly.” otherwise. As a Const, general powers There is an identical limitation on the rule to cities and counties. Iowa powers granted Ill, 8A, home Although may argued to cities in Iowa Code §§ art. 39A. phrase section 364.1. The “not inconsistent with approve grant that the a broader assembly” the laws of the used in both given to cities and counties than that 331.301(1) and section 364.1 is the same constitution, directly adoption language employed in the 1968 and 1978 amend- scope language defining constitutional granting ments to the Iowa Constitution result, they there is no to enact a think were authorized under the home regulation with state that is inconsistent rule amendment. right impose stringent “more law. good Whether statewide is a *22 331.301(6) envisioned in section is standards” is, majority recognizes, bad idea a necessarily subject to this restriction. political by issue resolution the General paramount “inconsistency” Assembly. long role of the The as it does so So constitution- rule, limiting entirely home as contrast- up standard it is legislature ally1 “express general on government, ed with limitation determine local state whether 331.301(3) both, powers” language neither, in section government, supe- should stringent language in regulation hog the “more standards” ques- rintend the lots. Our 331.301(6), do, is legislature section made clear inclu- tion is not what the should but a definition “inconsistent sion of of the term rather to determine what has done. a with law.” See Iowa Code applicable All plain statutes stand in view 331.301(4). grant If limitations on the rights granted rule the home to counties express rule home were limited III, article 39A of the Con- by legislative rather limitation enactment majority stitution. The is on in ground solid inconsistency than mere with state there stating grant that home rule is purpose including in definition. is no that the fact govern- unlimited. But that local equated inconsistency The yield ments must to state law should irreconcilability.2 exalting To with avoid change vast wrought by obscure the form over substance the term “irreconcil- home rule amendment was intended interpreted must be to mean disharmo- able” relationship revolutionalize between ny depending compre- in result on whether and local governments. Claims such as the state law or a local is hensive present should light one be tested in the Otherwise, particular applied situation. philosophy way home found its inconsistency be mere standard would practicable, into our constitution: where local paper. light, Viewed in words this problems gov- should addressed 22, 23, regulations contained in pursue ordinances goal To ernment. we should are, opinion aptly thwart, and 25 of the court uphold, strive to rather than to ef- demonstrates, irreconcilable law govern with state In forts of counties to local affairs. beyond power enact. (city) twin interpreting the home rule amend- rto ment, way: approach our we described NEUMAN, J., joins special in this power cityA has the to enact an ordi- concurrence. nance on a matter which is also the if the ordinance can of statute and statute
HARRIS, part). (dissenting Justice A be harmonized and reconciled. munici- scholarship pal as I is Much admire the “inconsistent” with a therefore, and, analysis majority Assembly careful reflected General it, join pro- I opinion, preempted cannot in it dissent in when the ordinance statute, part. majority permitted by The act entirely is hibits an correct plaintiffs’ prohibited by act rejecting challenges permits under a statute. agree considering city 335. I a claim that a that ordinance powers, interpret disapproved, respectfully violates “home rule” must be dissent majority law in holding the state such manner as statutory law. I ordinance. and 25 conflict with it harmonious render powers radicates intent not that. to do challenge implicated 1. No constitutional provides: statute present appeal. county power exercise of a not inconsis- An with a state law tent unless it is irreconcilable that state law. grant govern of local to accommodate the cannot be and ordinance If the statute stringent more stan mental to set reconciled, prevails. the statute consistency. requirement dards with Ass’n v. Sioux City Police Sioux Officers’ majority concludes the ordi In the end the (cita (Iowa 1993) 687, 694 City, 495 N.W.2d inconsistent, merely rather than nances added). omitted) (emphasis The same tions disagree. I imposing higher standard. challenges under approach governs at issue set forth standards The ordinances Supers. Bd. rule. Polk operations. livestock confinement for various Comm’n, 522 Charter Polk Commw. Many requirements of these standards (Iowa 1994). implications imposed by stringent than those are more beyond far important case extend *23 factor not render But this does law. of livestock immediate issue invalid. See Sioux Police them Officers’ sinking facilities. I have a feel confinement 695; Ass'n, Bryan v. 495 N.W.2d concept rule for local ing of home that (Iowa Moines, Des constitution, guaranteed in our governments, 1978). n willsuffer under majority holding. strong leg- is another indication the There control, I regard ground water I. With not intend to bar the islature did 24 cannot withstand agree that ordinance Iowa section challenged here. Code although I rest plaintiffs’ challenge, would provides for local control of air 455B.144 holding finding express preemp- on a pollution: 455B.172(5) re- tion. Iowa Code section Any political may subdivision con- through department to the serves state — pollution program an air control with- duct jurisdiction resources —exclusive of natural jurisdiction.... in the boundaries of its ground regarding water as to set standards programs, political conducting such sub- disposal it relates to of waste from livestock may adopt and enforce rules divisions agree I with the confinement structures. adequate maintain standards to secure and majority general authorization to that jurisdic- respective within the quality air governments granted under Iowa Code 455E.10(2) tions. yield specific section must to the 455B.172(5). supervisors any in This in
authorization section If the board of provision important pollution is also for what it reveals an air control establishes provides. beyond preemption it It also a certificate of program and has obtained that well acceptance, agency implementing demonstrates knows express may pollution to claim within program how to itself when intends air jurisdiction any incorporated a sub- ar- including exclusive statewide over ject incorporated matter. eas therein until such areas joint acceptance as a obtain a certificate of disagree majority’s holding II. I with the separate agency. 22, 23, that ordinances and 25 conflict with done, majority reject after state law and would affirm the trial court’s What preemption challenge, is to then em ruling upholding ing them. 331.301(1) guise version of it in the general grant is a brace a rewired here, where, Surely powers protect inconsistency. counties to exercise correctly rejected, a preserve property preemption of its This claim of residents. statutory grant right granted govern to local is a in addition to the consti- constitutional ground frail that provision previously men- not fail on so tutional home rule ment should provision unfriendly to a state tioned. Local ordinances of course must be the local require a sterner confronta plan. reconcilable and not with the It should inconsistent gone this. At least one state has so legislative intent scheme of state than law. tion provi interpreting a similar home rule Local ordinances however “set stan- far showing the two requirements higher require as to dards and sion E.B. Elliott stringent imposed by provisions and more than those “cannot coexist.” County, Metropolitan Dade state law.” Iowa Code The Adv. Co. (5th Cir.1970). 1141, 1150 majority length attempt We need goes great F.2d
5H ment, accept strong interpretation so in order to except they shall pow- not have here, course, ample levy affirm because there is er to expressly tax unless autho- general room for accommodation between the Iowa rized assembly. challenged Code and the ordinances. proposition or rule of 24,1 law that a
Except as to ordinance think the trial joint county-municipal corpora- rejecting challenges, court was correct government possesses tion 22, 23, 25,1 and can exer- and as to ordinances would only powers granted express cise those affirm. part words is not a of the law of this state. SNELL, (dissenting). Justice Const, Ill, § art. 39A. majority opinion displays fine scholar- principle This constitutional is also found ship approach and a careful to the issues in statutory in our law. Iowa Code section I agree
this case.
with much of its content
331.301
states:
agree
but do not
with the ultimate result
county may, except
1. A
expressly
reached.
Constitution,
limited
and if not in-
consistent with the
laws of the
finding
I
affirm the trial
would
court’s
assembly,
any power
perform
exercise
*24
County
the Humboldt
ordinances are not an
any function
appropriate
pro-
it deems
to
zoning power. They
exercise
preserve
tect
rights, privileges,
and
not, therefore,
do
conflict with the state law
property
county
and
or of its resi-
establishing
zoning exemption
agricul-
a
dents,
preserve
improve
and to
and
tural land and structures
under
Code
health,
peace, safety,
welfare, comfort, and
chapter 335.
convenience of its residents.
agree
majority’s analysis
I
with the
express preemption
that the
and find
state
county may
... A
gener-
exercise its
provisions
has
right
not exercised this
in the
powers subject only
al
to limitations ex-
join
majority
of House File 519. I also
pressly imposed by a state law.
finding that
there is no
statement
4. An
county power
exercise of a
is not
legislation indicating
uniformity
that
or state-
inconsistent with a state law unless it is
apply
wide
was
to
intended
irreconcilable with the state law.
feeding operations.
agree,
I do not
however,
added.)
that
the Humboldt
ordi-
(Emphasis
subparagraphs
These
are, nevertheless,
nances
invalid as in conflict
clearly
legislative
show the
intent that home
with state law.
powers
protected
rule
be stiffened and
overriding,
permitted
state
which is to be
analysis
In its
of Iowa’s “home rule” laws
only as a last resort.
reached,
supportive
of the result
the ma-
Subparagraph
recognizes
part
six
that as a
jority
away
has veered
from the course set
powers granted by
of the home
our
by
rule
many years. Although
our court for
ac-
constitution,
may
existence,
not set lower stan-
knowledging
majority
their
has
imposed by
state
dards
law than those
responded
not
to the thrust of our decisions
may
higher
but
set
standards.
It states:
promote
solidify
concept
gave
home rule. Those decisions
structure
A
shall not set
standards
to the home rule constitutional amendment
requirements which are lower or less strin-
degree
law,
a 180
turn from our
announced
gent
imposed by
than
state
those
previous law.
requirements
set standards and
higher
stringent
are
or more
than those
The Iowa Constitution’s
home rule
law,
imposed by state
unless a
law
state
part:
amendment of 1978 states in
provides otherwise.
joint county-municipal
Counties or
cor-
§Id.
poration governments
granted
are
power
authority,
phrasing
not inconsistent
The antithetical
in this statute
general assembly,
legislature’s
with the laws of the
shows that the
concern was that
by
govern-
determine their local affairs and
state standards not be undercut
a coun-
analyzing
prohibited
In
state
Higher
whether
ty’s adoption of
standards.
weaker
ordinances,
by
these
we said:
requirements
counties
standards
apparently
of concern.
were
not
We first consider defendant’s contention
that farm animal control cannot be
recipients of like treatment
are the
Cities
subject
municipal
of a
ordinance. Defen-
municipal
the Iowa
under
Constitution’s
city lacks
dant thinks the
provision
state law. See Iowa
subject
regulate farm animals because the
III,
38A;
art.
Iowa Code ch. 364.
Const.
It is a
preempted
has been
state law.
immediately
In
after the ratification
principle
municipal
well
established
amendment,
said,
county home rule
governments may
legis-
undertake
empowers
city to set
“Home rule
standards
legislative
late
matters which
those
imposed by
stringent
‘more
than those
state
government
preserved
branch
”
of state
provides
unless a state law
otherwise.’
ways
for a
to itself. There
alternative
Moines,
Bryan v.
Des
preserva-
to show such a
(Iowa 1978)
(quoting Iowa
expres-
specific
tion.
is of course
One
364.3(3)).
is,
sion in a
Another
statute.
defendant
Bryan,
express
we noted that
limita-
suggests, by covering
statutes
authority to
city’s
statute on
tions
estab-
such a manner as
demonstrate
employment
were
in-
qualifications
lish
legislative intention that
the field is
limitations,
implied
if
volved. No mention of
preempted by
law.
Vin-
exists,
principle
was made. Fur-
any such
861, 867,
Engledow,
ton
ther, we said:
(1966); 56
Mu-
Am.Jur.2d
(1971).
service
nicipal
We hold
civil
commission’s
Corporations
prerogative
give promotional
sole
exami-
necessarily precluded
Cities are not
*25
nations does not constitute exclusive au-
enacting
ordinances on matters which
thority
promotional qualifica-
to establish
subject of
have been the
state statute.
tions.
an
The
test
been whether
traditional
permitted
prohibits
by
an act
a
ordinance
Thus,
city’s
Id.
we concluded the
education
statute,
prohibited by
act
permits an
a
requirement
simply
was
an additional qualifi-
City
City,
statute.
v.
See Towns
Sioux
validly impose
of
city
cation that the
could
be-
(1932).
84,
76,
658,
214
241 N.W.
662
Iowa
it was not
cause
inconsistent
state law.
passed
In
if- an
past,
even
ordinance
Cain,
City
v.
In
Council
342
of
Bluffs
mu
this test it could be
if the
invalidated
(Iowa 1983),
N.W.2d 810
we breathed more
nicipality
expressly empowered
not
was
meaning
life and
into what
“in-
constitutes
City
to enact it. See
v.
Dotson
of
consistency” with
statutes. This
case
Ames,
467, 470-72,
251 Iowa
101 N.W.2d
remarkably similar to the case at bar.
(1960);
711,
Moody’s
713-14
Merriam v.
farm,
forty-acre
a
defendant owned
163, 170(1868).
Executors, 25 Iowa
family
seventy-five
his
years,
owned
for
Id. at 812.
city
and located within the
limits of Council
Regarding
meaning
home rule and the
of
Cain,
year,
Bluffs.
513
(Iowa 1977);
ton,
Engledow,
864-65, 140
Air-
driving.”
N.W.2d
258 Iowa
Rapids
port
at 860.
city
Commission
Cedar
N.W.2d
The case held the
could
(Iowa
Schade,
v.
such
N.W.2d
not enact
an ordinance because the
Cascade,
1977);
v.
purview
Green
state statute came within the
of a
(Iowa 1975).
882, 890
providing
provisions
statute
that the
applicable
shall be
and uniform
challenged
We think the ordinance
here
865,140
throughout the state.
Id. at
easily
can be harmonized with state law.
case was
in 1966
decided
as an
regu-
To be
sure there
extensive state
interpretation of state statutes in- effect
licensing
be
provisions
lations and
for farmers
adoption
municipal
fore
keep or breed livestock. See Iowa
who
such,
animals);
constitutional amendment in 1968. As
(registration
Code ch. 162
chs.
driving
lacked
force of the constitution
(prevention
among
an-
163-166C
disease
And,
imprimatur
al
imals);
163.26,
home rule.
even tak
seq. (feeding gar-
section
et
value,
163.40,
Engledow
en
animals);
at face
case was able
bage
seq.
et
(use
only
bulls);
majority.
marshal
five to four
It
(breeding
disposal
ch. 167
precedential
deciding
has no
animals);
(estrays
value
the case
eh.
dead
animals).
at bar.
trespassing
See also
Ad-
(regulation
poultry
min.
ch. 11
majority
Cases cited
as illustrating
(dead
egg production);
ch. 12
city ordinances inconsistent with state law do
disposal);
(prevention
ch.
of livestock
support
majori-
the result reached
diseases);
dairy
(regulation
chs. 30-31
ty.
Rapids
Rights
In Cedar
Human
Com-
production).
Rapids Community
mission Cedar
School
regu-
Nevertheless we find no
statute
District,
(Iowa 1974),
trary is merit. without however, statute, provide did because it *26 Id. at 812-13. judicial provided review as under the Thus, Id. at statute. ordi-
This case held the ordinances were not
nance was inconsistent and invalid because it
preempted by state law and were not incon-
a lower
authorized
standard than did the
keeping
sistent' with state
where the
Moreover,
Rapids
state.
the Cedar
Human
locally
farm
was
regulated.
animals
The
process
Rights
a due
Commission case is
ease is not
a
recognizing
doc-
case,
question
a
not
the ease at
involved
implied preemption
trine of
in home rule
illustrating
than
bar. Other
“lower stan-
fact,
phrase
In
“implied,preemp-
cases.
dards,” the ease has little relevance to the
opinion.
opin-
tion” is
never used
ease at bar.
merely recognizes,
dictum,
by
pres-
ion
by
legislature
ervation of an area of law the
by
majori-
The second Iowa case cited
may
expressed in
single
by
be
a
statute or
support
ty
concerning
of its distinction
covering
subject by statutes,
an alternate
“inconsistency” City
City
v.
West-
express preemption.
means of
inghouse Learning Corp.,
515 transfer, employment, promotion, ployment for again expressly does not lim- discharge which are not authorized public employer’s ability it the to establish specified sections prohibited additional criteria not else- regarding employment. civil service where. chapter 400 While includes some criteria City Officers’ Ass’n, Sioux Police which must be considered and some crite- at 694-95. ria which must not be em- considered City Sioux Police highlights action, ployment the Iowa did Officers’Ass’n adoption of higher regula- standards and provide not intend the ex- city’s tions that we held valid under the home employment clusive basis for decisions. authority rule “inconsistent” with employer may A civil impose service addi- state statutes. qualifications tional and criteria. (court
Hollinrake, 452
N.W.2d at
rec-
spirit
The law and
of home
was
rule
em
ognized authority to determine minimum phasized
in Polk
Supervi
Board of
deputy
position through
fitness for
sheriff
v.
sors
Polk Commonwealth Charter Com
vision, standards);
the establishment
mission,
(Iowa 1994).
held Des Moines could following adoption of the constitu- police require its to' officers have some tional amendment and college eligible pro- education to be for a Iowa. We concluded the intention Bryan motion. We believe that controls in framers of the constitutional amendment *28 case; the civil service commission’s power grant to to rule was cities their local power promotional to conduct exams does government subject affairs to the su- and expressly prohibit City the of Sioux authority perior general assembly. City adopting additional criteria for (citations Sheridan, at 692-93 promotion. omitted). amendment, provides Applying Section 400.17 additional mini- the constitutional we qualifications for mum civil em- service said: fact, have granted clothing. established ent amendment
The constitutional local affairs holding to determine that the mandating home rule City of Clinton is government and are County ordinances valid under Humboldt charter form a home rule organized under City law. The of Council case by the amend- permitted government validating city so in Cain did v. Bluffs under specifically and allowed ment keeping of regulating the farm City of Clinton’s Iowa. City Code of is city. in the The case not different animals and initiative expressly authorizes charter issue legal and controls the principle, in repeal of ordi- adoption and referendum in production farm regulating grant- The home rule amendment nances. operations greater county. hog and Size local city power to determine its ed change the law in this mat- numbers do city longer depen- government. The is no Bryan, cases of In accord are the ter. power. it upon legislature grant dent Gruen, Sioux Police and Officers’Ass’n. city’s power by “Any limitation imposed.” Bryan v. expressly must be applying import of these cases The clear Moines, City Des statutory law is home rule constitutional and (Iowa 1978). find irreconcilable We no inconsistency only high degree will that provisions conflict between the Moreover, be- invalidate a local ordinance. and initiative and refer- Code of Iowa be deemed be fore area the Clinton rule provisions of home endum legislature expressly must preempted, charter. unambiguous preempted by declare it to Id at 694. I statutory language. legis- believe that the argument the charter Rejecting the enacting File did not lature in House provisions inconsistent state elec- were subject- Unambiguous language of include rule, rejecting the Dillon again tion laws and preemption that the Hum- wide invalidates we said: All of these ordi- boldt ordinances. Here, in attorney general suggests, sphere of rule as nances fit within the express statutory authority, the absence by our constitution and statutes. authorized of an initiative or referen- the submission suggestion dum invalid. This would be conspicuously preemption ab- Words carry-over the Dillon under which File language of House sent from municipal possessed corporation and ex- void, reg- regarding fill that To by the only powers granted ercised those ulating application groundwater manure express in words. plaintiffs preemption protection, claim require specific statutory To section language is found Iowa Code permit vote is initiative or referendum 455B.172(5). language use of the That is the contrary the intent of the amendment “exclusively” regarding responsibil- word rejected the Dillon rule. Cities no Department of Resources ity of the Natural only powers granted by longer have those issuing licenses standards adopting legislature. Bryan, N.W.2d at 687. cleaning confine- commercial of livestock We find no irreconcilable conflict between disposal structures of waste. How- ment election laws and the initiative and 455E.10(2) ever, states: provisions referendum of the Clinton home general assembly If in- rule charter. Political are authorized subdivisions municipal preempt initiative and tended implement encouraged groundwater powers, referendum have done so could respective protection policies within their by express unambiguous statutory lan- implementation jurisdictions, provided that Corp. City guage. See Theater Chelsea stringent but consistent with least (Iowa Burlington, 258 department. the rules 1977). problem. preemption We find no other statutes are conflict each These regulations indicating what show, thoroughly As these eases we have *29 before, protection are sane- groundwater in though studied these issues differ- area ambiguity An exists that not given only tioned. is re- These are passing recogni- laws by resorting ignored by solved Code section 4.7 tion and majority are fact special prevails analysis which directs that a statute its that embraces the idea that by I “any attempt over a statute. do not reach the government local add application requirements [state] of section 4.7 because the consti- would conflict with state provisions prevail In deciding through tutional of home rule law.” over this case statutory analysis, majority other rules. The home rule consti- has failed to follow the precedents has, authorizing by tutional amendment set our ordi- cases and as decries, paramount nances is unless the local Justice Harris ordi- returned to the Dillon rejected nance is “inconsistent with the laws of rule that was by the home rule Here, general assembly.” constitutional amendment. Whether Dil- gen- not inconsistent because the laws of lon rule been grave has excavated from the assembly ambiguous. preemption eral are It or has re-emerged cannot be under new “prohibits per- inconsistency, said that an act inconsistency name statute, permits prohibit- permitting mitted act swallowed the law higher and standards, stringent ed statute” the face statutes that more the majority has ambiguous. are in vitality conflict and therefore drained the from home rule. Little is otherwise, exclusivity government Stated is not estab- left to local that could withstand unambiguously, inconsistency lished and there no ex- the avarice meaning so press preemption pervasive. subject area. contours, types, drainage Land soil effi- County The Humboldt ordinances include ciencies, centers, levels, population rain even higher stringent regulations more but currents, vary air from locale to locale. prohibits large none of them con- livestock subject Characterizing a having statewide feeding operations in county.
finement importance impact does not lessen the operator If an complies regulations, with the problems locally. encountered That is the large feeding opera- livestock confinement message embraced the citizens of Iowa in permitted. tions are adopting rule amendment. rule, considering questions of home If the legislature believes the mat- consistently applied have quoted and ter of the Humboldt statutory component of home rule that em- preempted by statutes, should be powers counties follows: provides express clear means. An preemption unambiguous A statement lan- shall not set standards and issue, guage would determine the if that is requirements are lower less strin- law, legislature. the will of gent than Contentious is- imposed by those but policy left sues should to travel the may set requirements standards and circuitous, linguistic paths of the courts. higher or stringent are more than those imposed by state unless a state law properly district court followed the provides otherwise. upholding course we have charted This section estab- advancing purpose of the home rule con- ceiling lishes a floor rather than a for what supporting their stitutional amendments and regulations a county standards and is autho- statutes. I would affirm the district court on It rized to enact. is the essence of home rule all issues. permitted “higher counties are to have stringent” and more and thus stricter laws
than imposed by those the state. Those local
laws are initio conceptually ab “inconsis- they
tent” “higher because and more
stringent.” But this difference is constitu- statutorily
tionally only permitted encouraged.