DES MOINES — Can the power of eminent domain be transferred from the county board of supervisors to a regional airport authority on an irrevocable basis?
That was largely the question before the Iowa Supreme Court Thursday as parties of the South Central Regional Airport Authority case made their arguments.
As well, the cities argued that if the Iowa Supreme Court would rule in favor of the county and landowners, it would pave way to the "busting" of intergovernmental 28E agreements across the state to the detriment of many public projects.
Arguments carried on for about 40 minutes on Thursday. The court will issue a decision at a later date.
The case was brought to the Iowa Supreme Court through an appeal by Mahaska County and landowners after district court judges previously upheld the 28E agreement which formed the SCRAA was valid, and found the county in breach of contract.
Attorneys for the Mahaska County Board of Supervisors and the Site A Landowners group said while the county's power of eminent domain can be delegated, in the case of the SCRAA it wasn't done properly.
"The fatal failing ... is that the next elected representatives could not withdraw," said Michael Reck, an attorney representing Mahaska County.
"We have multiple cases that ... stand for the proposition that power of condemnation is a legislative power, and its subject to voter accountability," said Tyler Smith, an attorney for the landowners of the proposed airport site.
The county also took issue with the delegation of zoning and road relocation powers to the SCRAA board. They argued the SCRAA was set up the way it was — with one county vote against five others from the two cities — so the authority would "outlast any elections."
The SCRAA was formed in 2012, with the Mahaska County Board of Supervisors at the time approving it unanimously. Opposition began almost immediately thereafter and has persisted over the years with new supervisors being elected that have since undertaken multiple attempts for the county to leave the agreement.
Mark Weinhardt, the attorney arguing on behalf of Pella and Oskaloosa, said the court should uphold prior rulings to avoid unpractical impacts for not just the South Central Regional Airport project, but any other project undertaken by entities formed by 28E agreements in Iowa.
Weinhardt posed a hypothetical to the justices. What if the project was further along — runways graded and paving began, electrical cabling started, and concrete pads for hangars poured?
"And at that point, there's an election in Mahaska County and the Mahaska County Board of Supervisors changes its mind and says, 'Stop, we're out, no more construction,'" he posed. "And oh, by the way, if there was any land acquired by condemnation and those people are now litigating the compensation to which they're entitled, they get the land back instead; rebar, gravel, and all.
"That, legally speaking, is the exact same case as this case. In order to avoid that kind of ridiculous collision between the law and practicality, this court should affirm the judgments of the district courts."
Attorneys for the county and landowners argued that under Iowa Code 6A.22, SCRAA could not exercise the power of eminent domain for the land of the proposed airport, which sits near Leighton in an unincorporated area of the county.
Weinhardt disagreed, saying SCRAA has the ability to acquire land as an entity itself within the limits of Mahaska County, and Oskaloosa also could do so under Iowa Code 364.4, which allows cities to condemn unincorporated land for a municipal airport.
Justice Brent Appel said he took issue with removing eminent domain from the political process.
"We all know that eminent domain is often very controversial," Appel said. "I guess the power of eminent domain, which is ordinarily subject to this political process, is now kind of buried in this 28E entity and a past majority is capable of binding a future majority of political actors."
Weinhardt said those impacted by the condemnation of land would be able to voice their opposition at a hearing with the SCRAA as part of the process. "It has never been a requirement that it be in front of elected officials — it often happens that way, but the law does not require that."
To close, Weinhardt said 28E agreements aren't like social media, where a participant can just decide to "unfriend" the other government agencies.
"There are public projects all across the state watching this one because no public project is without opponents," Weinhardt said. "No public project has universal support, and if the door is open to busting up 28E agreements like this one, they're either not going to happen or they're going to wind up with half-built public projects."
Reck had a different take on the scenario.
"The fact that the electorate can intervene and decide it no longer wants to pursue a project is the great glory of our democracy," he said. "We're being asked to treat it as if its a bad thing. It is not."
Reck asked the justices that if the voters don't want the airport, and thus the project doesn't go forward, is that horrible? "... or is that our system of government acting exactly as it should?" he asked.