Des Moines Register
07-26-06
What about property rights for hog lots' neighbors?
IOWA VIEW
By JEFF VONK
SPECIAL TO THE REGISTER
As director of the Department of Natural Resources and a property owner in
Iowa, I took great interest in the recent debate on eminent domain. The Iowa
General Assembly voted overwhelmingly to override our governor's veto of a bill
restricting the use of eminent domain to take private property. Property owners
can now feel better protected from government when it comes to taking their
private property for the "public good."
What bothered me during the debate is that every year, hundreds of Iowans have
their property rights violated by private entities — and have virtually no voice in
the process. Many of these same legislators voted for laws that prevent Iowans
from having a say in decisions made hundreds of times a year by neighbors and
corporations to build large-scale confined animal feeding operations (CAFOs)
near their properties. These Iowans lose value in their property, lose the
constitutional right to freely enjoy the use of their property and potentially suffer
adverse health impacts from emissions.
And they, and the rest of us, are left to deal with the catastrophic environmental
impacts when something goes awry and a manure spill pollutes our public waters
and kills aquatic life.
A study released by Iowa's Center for Agricultural and Rural Development in
2003 provides credible evidence documenting the loss of residential property
values when a new CAFO is constructed in the vicinity — especially when the
existing home is downwind. This study demonstrated that economic damages to
neighbors in Iowa are similar to that in other states, citing a study done in North
Carolina. This is an uncompensated taking of private property.
Yet neighbors — those losing money — are specifically prevented by Iowa law
from having a voice in where or even whether a CAFO should be built, in part to
protect the property rights of those who want to build confinements. Almost no
one wants to be subjected to the odor and other byproducts of such operations.
So to protect the economic interests of a few, we abridge the rights of others —
starting with rights provided under Article 1, Section 1 in the Iowa Bill of Rights:
"All men and women are, by nature, free and equal, and have certain inalienable
rights — among which are those of enjoying and defending life and liberty,
acquiring, possessing and protecting property and pursuing and obtaining safety
and happiness."
In a 1942 decision, the Iowa Supreme Court held that property consists not only
of land, but also the rights of "use and enjoyment." (Liddick v. City of Council
Bluffs). In more recent cases, the Iowa Supreme Court has limited nuisance
immunity provided to livestock producers in state law — allowing some neighbors
to successfully sue confinement operators for damages. But is it a reasonable
burden for aggrieved rural Iowans to have to sue to defend rights that are so
clearly protected in our state constitution?
Finally, there are the public-health considerations. In 2001, a joint Iowa
State/University of Iowa panel of experts, after an exhaustive review,
recommended that critical CAFO emission elements (hydrogen sulfide, ammonia
and odor) be regulated. They also told us what the emission standards should be
to protect human health. The DNR and Environmental Protection Commission,
with support from Iowa Public Health, acted on these recommendations. Rule
making was undertaken, and standards were adopted. Yet legislators voted to
nullify the new rules within a few days of their adoption — citing the economic
burden on the offending industry among their reasons.
Recently, we have seen unprecedented growth in the numbers of large CAFOs
across Iowa. The U.S. Ag Census documents more than 1 million additional hogs
being produced in Iowa compared to four years ago. Emotional confrontations
between producers and neighbors are growing in frequency and bitterness.
There are answers. Our legislative leaders need to allow the DNR's pending
environmental-evaluation rule to take effect next month. We need to give a
meaningful voice to citizens who are having their property rights taken by
developers of new CAFO sites. This can be done with a simple law change
authorizing counties to zone where these facilities can be built — or cannot.
Finally, we need to require developers to compensate adjacent landowners for
loss of property values when a new facility is built.
Iowans deserve to have their private property and its enjoyment protected from
takings — not just from government, but from corporate neighbors as well.
JEFF VONK is director of the Iowa Department of Natural Resources.