Full Opinion

IN THE COURT OF APPEALS OF IOWA _______________ No. 25-1295 Filed October 21, 2026 _______________ Ruth A. Fuessley, Neal Gilbertson, and Stephanie Gilbertson Plaintiffs–Appellants, v. City of Cedar Rapids, Iowa, Defendant–Appellee. _______________ Appeal from the Iowa District Court for Linn County, The Honorable Michael Harris, Judge. _______________ AFFIRMED _______________ Daniel L. Manning Sr. (argued) of Peddicord Lillis LLP, West Des Moines, attorney for appellants. Patrick T. Burk (argued) and Allison M. Steuterman of Brick Gentry, P.C., West Des Moines, attorneys for appellee. _______________ Heard at oral argument by Tabor, C.J., and Schumacher and Buller, JJ. Opinion by Buller, J. 1 BULLER, Judge. Neighbors Ruth Fuessley and Neal and Stephanie Gilbertson appeal the condemnation of their properties as part of the Cedar River flood control project in Cedar Rapids. Because acquisition of the properties is reasonably necessary to obtain necessary permits and accreditation, and the properties are necessary to achieve the flood control system, we affirm. BACKGROUND FACTS In June 2008, the City of Cedar Rapids (the City) experienced a 1,000- year flood, devastating the City as the Cedar River overflowed its banks, cresting at more than thirty-one feet—nineteen feet above flood level. The flooding river spread to a mile wide through downtown Cedar Rapids, damaging hundreds of businesses and public buildings costing more than $5.4 billion. As recovery efforts were underway, the City began planning a flood control project to prevent similar flooding in the future. The City worked with the U.S. Army Corps of Engineers (the Corps) to create a Flood Control System (FCS) Master Plan, which guides the development of seven and a half miles of flood control along the Cedar River—3.8 miles on the east side to be built by the Corps, and 3.7 miles of levees and flood walls on the west bank of the river under the City’s purview. The FCS “creates an impenetrable area where the water is forced to stay in the river”— constraining its width to two-tenths of a mile through the downtown area. At the northern, upstream edge of the FCS area—which was hit hard by the 2008 flood—Fuessley and the Gilbertsons own neighboring properties backing up to the river. Since the original 2016 Master Plan, both properties had been designated as “Full Acquisition Property” with the levee originally 2 extending onto the Gilbertsons’ property and construction expected on Fuessley’s property. In 2017, the City sent an acquisition option letter to the Gilbertsons; Fuessley was first contacted in 2018. Fuessley and the City (through a contractor) negotiated the City’s offer, but they were unable to reach an agreement; the Gilbertsons generally did not respond to the City’s attempts and refused the appraisal amount in early 2023. In 2021, as the early sections of the project reached completion, the City moved to begin implementation of the FCS in all remaining segments, including acquisition of the properties needed for the remaining construction. In December 2022, the north edge of the FCS was revised, moving the levee edge south and adding a floodwall that turned inland to connect with the east-west levee just south of the properties. The revised FCS plan would reroute their street starting north of their properties, sending the road up a new embankment in front of their homes, over a sixteen-foot-high levee just south and west of the properties, then down another embankment to rejoin the existing road on the other side. This plan leaves the properties in a small triangle of land bound by the embankment to the west, levee and floodwall to the south, and the river to the northeast. The revised FCS continued to designate Fuessley’s and the Gilbertsons’ properties as “Full Acquisition.” The property owners contested the City’s right to condemn their properties, arguing it was not necessary under the revised FCS plan. At a hearing on the matter, the City had the burden “to prove by a preponderance of the evidence” their reason for condemnation met the definition of “public use, public purpose, or public improvement.” Iowa Code § 6A.24(3) (2023). The City presented testimony from the FCS manager and their expert witness, a flood risk and water infrastructure engineering consultant who had 3 facilitated the design and permitting of the FCS. The property owners offered their own experts, including an engineer specializing in floodplain analysis. A new flow frequency study estimated the Fuessley and Gilbertson properties’ 100-year base flood elevations (BFE) were 3.4 feet higher than current expected flood levels. The FCS would separately cause an additional 0.3 foot increase in the properties’ BFE; that increase is a problem under state and federal regulations establishing parameters for construction affecting existing structures in a floodplain for safety and insurability. While the property owners’ expert emphasized the regulations do not require removal of the structures, he did not contest their presence could preclude the Iowa Department of Natural Resources (DNR) permitting the project or the Federal Emergency Management Agency (FEMA) issuing a new Letter of Map Revision (LOMR). The district court found that the properties “are not located within the project area”—i.e., their removal is not necessary for the physical construction of the FCS. But the court observed that fact “does not, by itself, prove that the taking of the properties would not be necessary for the completion of the FCS” and the taking could still be done for a public purpose. The court pinpointed testimony indicating the DNR would not issue the necessary permit to construct that portion of the FCS while structures remain on the properties, and that the community at large benefits from the impact on flood-insurance requirements. The court found the City proved by a preponderance of evidence the taking of the properties was for a public purpose. Fuessley and the Gilbertsons appeal. 4 STANDARD OF REVIEW Fuessley and the Gilbertsons argue our review is of the district court’s statutory construction, so for correction of errors at law. Brendeland v. Iowa Dep’t of Transp., 14 N.W.3d 135, 142 (Iowa 2024). The City counters that the action was tried in equity, so our review would be de novo. Iowa R. App. P. 6.907. To the extent our review hinges on statutory interpretation, we review for errors at law. We review that which is not a legal question de novo. DISCUSSION Fuessley and the Gilbertsons assert the district court erred in denying their challenges to the condemnation. As we understand their argument on appeal, since the 2022 FCS plan revision altered the north end of the western FCS, they believe their properties are no longer in the physical footprint of the FCS, necessary to its construction, or mandatory acquisitions subject to the City’s condemnation powers, so the City could not legally condemn their property. They instead urge the City and FCS should accommodate their existing structures. The City counters that condemning the properties is necessary to obtain permits for that segment of the FCS and to effectuate a reduction in flood insurance rates benefitting the City’s general public under the FEMA Insurance Program. For the reasons that follow, we affirm the district court’s conclusion that the condemnation was proper. I. Case Law Cities have the “right to take private property for public use . . . for public purposes which are reasonable and necessary as an incident to the powers and duties conferred upon cities.” Iowa Code § 6A.4(6); see ACCO Unlimited Corp. v. City of Johnston, 611 N.W.2d 506, 510 (Iowa 2000). The burden is on the City “to prove by a preponderance of the evidence that the 5 finding of public use, public purpose, or public improvement meets the definition of those terms.” Iowa Code § 6A.24(3). “An absolute necessity for taking the particular land need not exist. A reasonable necessity is sufficient.” Vittetoe v. Iowa S. Utils. Co., 123 N.W.2d 878, 881 (Iowa 1963). “[W]ater and its control are obviously of paramount importance to the welfare of the people.” Iowa Nat. Res. Council v. Van Zee, 158 N.W.2d 111, 118 (Iowa 1968). “Proper control of rivers and streams, of course, involves the exercise of control of the use of property adjoining these streams or in the recognized floodway or flood plains. Police power properly regulates use of that property because uncontrolled use would be harmful to the public interest.” Id. When applying to condemn a property, a city must show the minimum amount of land necessary to achieve the public purpose and the amount of land to be acquired by condemnation for the public improvement. Any land to be acquired by condemnation beyond the necessary minimum to complete the project shall be presumed not to be necessary for a public use or public purpose unless the applicant can show that a substantial need exists for the additional property to achieve the public use or public purpose. . . . Iowa Code § 6B.3(1)(g). There is no question the FCS as a whole falls within the chapter-6B definition of “public use, public purpose, or public improvement.” II. The City’s Need We next consider the City’s need, focusing on two obstacles faced by the City if it did not condemn the properties: permitting and accreditation. 6 A. Permitting Fuessley and the Gilbertsons argue the City exceeded its authority to condemn the properties and failed to prove the properties were part of “the minimum amount necessary to accomplish the stated public purpose”—in this case the construction of the FCS. At trial, the City argued it needed to condemn the properties in order to obtain the permits from the State necessary to build that portion of the FCS. The Fuessley and Gilbertson properties were already located within the portion of the floodplain at risk of significant flooding, and the FCS design placed them within the floodway (an area reserved for conveyance of flood flows). See Iowa Admin. Code r. 567-75.4 (2023).1 The City is required by law to obtain appropriate permits from the DNR to construct the FCS. Iowa Code § 455B.277(1); Iowa Admin. Code r. 567–71.4(2). As part of establishing a floodway, to the extent feasible, the encroachment is “to avoid the need to seek removal of a lawful existing structure,” to minimize any increase in BFE where it would affect an existing structure, and to avoid structures in the floodway if it would limit improvements or replacement of the structure. Id. r. 567-75.4(3). Both the FCS manager and the City’s consultant testified that the structures’ presence was affecting the City’s ability to obtain the needed DNR permits. So while the property owners are correct that the DNR has not “mandated” the City condemn the properties, the refusal to issue permits while the structures stand is also binding and a determining factor in the 1 This chapter of administrative regulations was rescinded in 2025 and rewritten into chapter 70. But we consider the regulations in effect at the time this action was brought and use the then-existing numbering. 7 City’s actions. Given the magnitude of the project, the backwater effect2 on the properties, the presence of the road embankment, and the impossibility of extending the flood protections beyond the properties without destroying the structures during the construction process,3 it is not feasible to leave the current structures intact. See Iowa Admin. Code r. 567-72.1, -72.11, -75.4. So properties necessary to obtain the permit would fall within “the minimum amount of land necessary” or those substantially needed to achieve the public purpose of the FCS. See Iowa Code § 6B.3(1)(g). B. FEMA Accreditation To qualify for a LOMR from FEMA, the community must “[c]ertif[y] that no structures are located in areas which would be impacted by the increased [BFE].” 44 C.F.R. § 65.12(a)(5). As the City’s expert explained, “Without that certification, FEMA will not accredit the levee system.” Without certification, the area protected by the FCS would still be considered a floodplain and subject to higher flood insurance premiums (particularly in light of the new flow study projecting higher flood waters); but if the levee system is accredited, all the protected property would no longer be (or require insurance as) a floodplain. Additionally, if the FCS is built to FEMA standards and can get accepted into the federal levee system, it will be eligible for federal funds to repair damage to the FCS in the future. Fuessley and the Gilbertsons argue the DNR and FEMA regulations do not themselves authorize the use of eminent domain on their property. 2 The Master Plan defined backwater as “the higher water upstream of the FCS caused by constricting the flow between the floodwalls and levees of the FCS.” 3 The City’s expert noted a levee would be fifty feet wide, and the excavation to construct a footing for a floodwall would likely be thirty feet wide. But the houses were only fifteen and twenty feet from the riverbank. 8 But the regulations outline what is necessary for the project to move forward with the permits and accreditation. Taking the two properties via condemnation is reasonably necessary for the City to obtain the permits and accreditation; and the permits and accreditation are necessary for the City to achieve its public purpose of constructing the FCS. “In the absence of a showing by a complaining property owner that the restraint imposed upon him outweighs the collective benefit to the people of the state, it cannot be said there is an illegal taking.” Van Zee, 158 N.W.2d at 117 (cleaned up). Here, the collective benefit to the City, and its population is vast in comparison to the restraint imposed on Fuessley and the Gilbertsons. III. Remaining Arguments Last, we briefly address the property owners’ specific argument on the mandatory acquisition policy. The FCS plan identified four categories of properties determined to be “Mandatory Acquisitions”: (1) properties required to build the FCS, (2) properties upstream of the FCS that will experience a backwater effect, (3) properties with buildings or improvements on the unprotected side of the FCS, and (4) vacant lots on the unprotected side of the FCS. The second and third categories provide for the City to purchase a flowage easement 4 rather than acquiring the property if the easement’s value is less than half of the property’s assessed value. The master plan went on to clarify, “The decision to acquire/protect versus buying a Flowage Easement shall be made solely by the City, based upon the certified appraisal value for the Flowage Easement relative to the assessed property value.” The FCS manager had contacted an appraisal service in 4 A flowage easement is “The right, power, privilege, and easement to overflow, submerge, or flood the property resulting from the impact of the FCS on the water level in the Cedar River.” 9 2015 and was told a flowage easement for the full increase in BFE (3.8 feet) would be the same value as purchasing the properties. The owners argue the 2022 revision removed their properties from the “required to build” mandatory acquisitions, and at most, both properties would now fall within the second or third categories, so the City’s appropriate action should be to purchase a flowage easement instead of condemnation. But since the City did not obtain a “certified appraisal value” of the flowage easement, they argue the City did not prove the easement would be valued at “50% or greater than the total assessed value,” and so the properties were not subject to acquisition. While the master plan called for the City to complete a certified appraisal if they were asserting mandatory acquisition under the second or third categories, the City considered the property to fall within the first “required to build” category. We have previously recognized the City has some flexibility in implementing the FCS plan “to avoid negating other objectives of the overall plan,” and “we cannot substitute our views for those of [the] City and its planning arm.” Hogg v. City Council of Cedar Rapids, No. 23-1350, 2024 WL 5153920, at *6 (Iowa Ct. App. Dec. 18, 2024). Here, the district court found credible evidence at trial established the amount of flooding that the properties now face places the easement cost at the “same value” as the property—well over the 50% requirement to classify as mandatory acquisitions. So even under the owners’ preferred category, their claim fails. We reject the property owners’ remaining arguments, whether stated expressly or not, and affirm the district court’s ruling. AFFIRMED. 10