A very short opinion we've been meaning to post for a while.
In Hickman v. Ringgold County, No. 19-0123 (Nov. 6, 2019), the Iowa Court of Appeals considered property owners' claim that the taking of their land to create a access road for the neighboring concrete plant was not a valid public use. Seemed like a pretty good claim. After all, Iowa prohibits economic development takings:
“public use” or “public purpose” or “public improvement” does not mean economic development activities resulting in increased tax revenues, increased employment opportunities, privately owned or privately funded housing and residential development, privately owned or privately funded commercial or industrial development, or the lease of publicly owned property to a private party.
Iowa Code § 6A.22(2)(b).
And, in the type of testimony that would make every municipal lawyer cringe, a county supervisor admitted the taking was "to further develop the economics of the county" -
As a supervisor, and I’ll speak for all three of us, we think it’s critical for this county to further develop the economics of the county. We are a shrinking county. We have lost businesses. We are losing people all the time, so it is—we have talked about it just about every meeting, about county development.Slip op. at 3.
As a consequence, the court of appeals concluded that "[d]espite this express prohibition, the County cited the need for economic development of the area as a basis for exercising its power of eminent domain," and therefore, "[t]he County’s reliance on an economic development rationale to support its taking of the Hickmans’ property violated section 6A.22(2)(b)." Slip op. at 3. Plus the Iowa Supreme Court recently concluded that the dissent in Kelo was more persuasive. Things were looking up for the owners.
But (and there's always a "but," isn't there?), the court affirmed the taking: "That said, the County was statutorily authorized to upgrade the road." Slip op. at 5. The road needed upgrading, and that was good enough to supply the public use needed to support the taking, despite the economic development rationale. "In short, the County’s need to upgrade the road was a public purpose that supported its exercise of eminent domain over the Hickmans’ land." Id.
So here's your lesson, Iowa condemnors. If you want to take property for economic development but can't because that pesky statute bars you from doing so, make sure you also say the taking is needed for some other reason, and that should be enough. Unless you have what Justice Scalia called a "stupid staff," you shouldn't worry too much about how the court of appeals is going to treat it.
Hickman v. Ringgold County, No. 19-0123 (Iowa App. Nov. 6, 2019)
