Barry C. Simpson And Stacy Simpson, Husband And Wife, David Gerber And Kathy Gerber, Husband And Wife, Jeremy Walker And Kayla Walker, Husband And Wife, Jeff Weber And Tracy Weber, Husband And Wife, Leroy F. Weber And Audrey H. Weber, Husband And Wife, Ken Witham And Cindy L. Witham, Husband And Wife, Terry W. Warmbier And Carol Warmbier, Husband And Wife, Howard P. Swanson And H. Aileen Swanson, Husband A ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 97 / 05-1410
Filed March 28, 2008
BARRY C. SIMPSON and STACY
SIMPSON, Husband and Wife, DAVID
GERBER and KATHY GERBER, Husband
and Wife, JEREMY WALKER and KAYLA
WALKER, Husband and Wife, JEFF
WEBER and TRACY WEBER, Husband
and Wife, LEROY F. WEBER and AUDREY
H. WEBER, Husband and Wife, KEN
WITHAM and CINDY L. WITHAM, Husband
and Wife, TERRY W. WARMBIER and
CAROL WARMBIER, Husband and Wife,
HOWARD P. SWANSON and H. AILEEN
SWANSON, Husband and Wife, EUGENE K.
LEMKEE and SHARON LEMKEE, Husband
and Wife, DUANE HEINEN and SHARON K.
HEINEN, Husband and Wife, EARL LOSS
and JUANITA LOSS, Husband and Wife,
THOMAS M. ALTMAN and MARLENE ALTMAN,
Husband and Wife, J.W. GARDNER and KAREN
GARDNER, Husband and Wife, RONALD FRANKL
and PAMELA FRANKL, Husband and Wife,
BOB CASEY and TRISH CASEY, Husband and
Wife, RICHARD N. KOHLHAAS and RICHARD
G. THOMPSON,
Appellants,
vs.
LUKE KOLLASCH, CHARLIE KOLLASCH,
KOLLASCH LAND AND LIVESTOCK, INC., GENERAL
DEVELOPMENT, L.L.C., a/k/a GENERAL
DEVELOPMENT CORP., DONALD R. TIETZ,
JOHN MERTZ, NICHOLAS BERTE, DEAN
BERTE, KEVIN BERTE and CRAIG BERTE,
Appellees.
Appeal from the Iowa District Court for Kossuth County, Patrick M.
Carr, Judge.
2
Neighbors of a proposed hog confinement appeal the district court
decision dismissing their petition for anticipatory nuisance. AFFIRMED.
David J. Stein, Jr. and David J. Stein, Sr. of Stein Law Office L.L.P.,
Milford, for appellants.
Sean P. Moore and Michael R. Blaser of Brown, Winnick, Graves,
Gross, Baskerville & Schoenebaum, P.L.C., Des Moines, for appellees.
3
STREIT, Justice.
No one wants to live near a hog confinement operation. Neighbors of
two proposed hog confinement facilities filed an anticipatory nuisance claim
against the developers of the confinement facilities and the owners of the
land where manure from the operations was to be spread. While the
neighbors raised legitimate concerns, our role in this case is not akin to a
zoning board. An injunction based on an anticipatory nuisance is an
extraordinary remedy and requires proof a nuisance will necessarily result
from the developers’ proposal. Because the neighbors have not met this
high burden, we affirm the district court’s denial of an injunction.
I. Facts and Prior Proceedings.
In early 2003, General Development L.L.C.1 filed two separate
applications with the Iowa Department of Natural Resources (DNR) for
permits to construct confined animal feeding operations (CAFOs) in
Sherman Township, Kossuth County. General Development referred to the
operations, which were to be located approximately two miles apart, as
“Sow 1” and “Sow 2.”2 The facilities were designed to store all manure in
concrete pits under the buildings. According to a manure management
plan for each facility, the manure would be spread once a year on nearby
farmland.
In May 2003, General Development published notices in the Algona
Upper Des Moines newspaper stating its intent to build the two CAFOs. A
1There are numerous defendants in this action: General Development L.L.C. a/k/a
General Development Corp. and Kollasch Land and Livestock, Inc. are companies owned by
Luke Kollasch and Charlie Kollasch. John Mertz owns the property where the proposed
facilities are to be located. Donald R. Tietz, Kevin Berte, Dean Berte, Craig Berte, and
Nicholas Berte entered into manure easement agreements with Kollasch Land and
Livestock, Inc. which allow manure from the proposed facilities to be spread on their
respective lands. Throughout our opinion, we will simply refer to the defendants as
“General Development.”
2These proposed facilities were identical in size.
4
public meeting was held. The Kossuth County Board of
Supervisors submitted a list of concerns to the DNR. In August 2003, the
DNR issued permits for the construction of Sow 1 and Sow 2. In its “Notice
of Issuance of Construction Permits” to the Board, the DNR addressed the
concerns raised by the Board and rejected them.
Prior to the issuance of the permits, the plaintiffs, who are all
neighbors of the proposed facilities (hereafter “neighbors”), filed this case
alleging nuisance and anticipatory nuisance. General Development filed
counterclaims, which were eventually dismissed without prejudice. The
district court granted partial summary judgment in favor of General
Development and dismissed the neighbors’ nuisance claim.
At the bench trial for the anticipatory nuisance claim, General
Development presented evidence the permit for Sow 2 had expired. Luke
Kollasch testified he had no current plans to build Sow 2 although he
acknowledged he may later reapply for a permit for Sow 2. Luke testified
his plans for Sow 1 were unchanged. Sow 1 would house 10,900 pigs (5400
sows, 2500 gilts, and 3000 sucking pigs). General Development would
compost approximately 25003 dead pigs a year and store and spread
approximately five million gallons of manure. Several neighbors testified
regarding their concerns about the proposed CAFOs. Both parties provided
expert and lay testimony with respect to potential odors, water
contamination, health effects, and reduction in property values.
Additionally, several individuals testified concerning their negative
experiences living near General Development’s existing CAFOs. The district
court found the neighbors failed to prove an anticipatory nuisance and
dismissed their petition. On appeal, the neighbors allege the district court
3Based on the record, it appears Sow 1 was expected to compost 260 sows and the
rest would be gilts and preweaned pigs.
5
erred (1) by only considering the Sow 1 facility; (2) by considering DNR
standards and regulations; and (3) by concluding Sow 1 would not
necessarily constitute a nuisance. General Development claims the district
court properly found the neighbors failed to meet their burden of proof. It
notes the neighbors are free to bring a nuisance claim if their concerns are
realized once Sow 1 is in operation.
II. Scope of Review.
Cases tried in equity are reviewed de novo. Iowa R. App. P. 6.4. “[W]e
give weight to the findings of fact made by the trial court in this case,
especially with respect to the credibility of witnesses, but are not bound by
those findings.” Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa 2000).
III. Merits.
A. Whether the District Court Erred by Only Considering the
Sow 1 Facility. The district court’s ruling did not make any findings of fact
or conclusions of law with respect to Sow 2, other than the permit had
expired. The neighbors filed a motion requesting the court to enlarge and
amend its ruling to address Sow 2. The neighbors noted “nothing is
preventing the Defendants from reapplying for and being granted the permit
for Sow 2 . . . .” In its ruling on the motion to enlarge, the district court
stated because “Sow Two is not presently threatening the Plaintiffs,” “there
is no anticipated nuisance to be enjoined with respect to Sow Two.” On
appeal, the neighbors contend the district court erred by not considering
Sow 2. We disagree.
It would be entirely speculative to rule on Sow 2. At this juncture,
General Development has no plans to construct Sow 2. When or if it
decides to develop that CAFO, General Development must obtain a new
construction permit from the DNR. We have no way of predicting future
circumstances if that were to occur. For example, General Development
6
may submit a revised plan, the law with respect to CAFOs may change,
or some of the neighbors may move in the meantime. Since General
Development applied for its original permits, the Kossuth County Board of
Supervisors adopted the “master matrix” which requires anyone seeking a
permit today to comply with the master matrix statute. See Iowa Code
§ 459.305. This statute also allows the Board to file a formal appeal with
the DNR regarding the issuance of any new permits. See id. § 459.304.
Thus, the issue with respect to Sow 2 is moot and the district court
appropriately limited its ruling to Sow 1. See Rhiner v. State, 703 N.W.2d
174, 176 (Iowa 2005) (“[C]ourts do not decide cases when the underlying
controversy is moot.”).
B. Whether the District Court Erred by Considering DNR
Standards and Regulations. The district court allowed General
Development to admit evidence of its compliance with DNR standards and
regulations. The neighbors argue the district court should not have
considered evidence of compliance because “ ‘a lawful business, properly
conducted, may still constitute a nuisance if the business interferes with
another’s use of his own property.’ ” Weinhold v. Wolff, 555 N.W.2d 454,
461 (Iowa 1996) (quoting Valasek v. Baer, 401 N.W.2d 33, 35 (Iowa 1987)).
While compliance with regulations is not a defense to a nuisance claim, we
agree with the district court this evidence was relevant. See Iowa R. Evid.
5.401 (defining relevant evidence as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence”). But see Andrews v. Western Asphalt Paving Corp., 193 Iowa
1047, 1052, 188 N.W. 900, 902 (1922) (holding it was not error to refuse to
permit defendants to show the plant, which caused the nuisance, was
operated and constructed in a usual manner). As the district court stated,
7
“compliance with standards designed to avoid nuisances might in fact be
some evidence that a nuisance would not necessarily result from the
operation.”
C. Whether the District Court Erred by Holding the Neighbors
Failed to Prove an Anticipatory Nuisance. The neighbors claim the
proposed CAFO, if brought into operation, will constitute a nuisance and
should be enjoined in advance. A nuisance is “[w]hatever is injurious to
health, indecent, or unreasonably offensive to the senses, or an obstruction
to the free use of property, so as essentially to interfere unreasonably with
the comfortable enjoyment of life or property.” Iowa Code § 657.1; see id.
§ 657.2(1) (explaining nuisances include “[t]he erecting, continuing, or using
any building or other place for the exercise of any trade, . . . which, by
occasioning noxious exhalations, unreasonably offensive smells, or other
annoyances, becomes injurious and dangerous to the health, comfort, or
property of individuals or the public”). “An ‘anticipated’ nuisance would be
whatever threatens to fulfill the statutory definition, if it were to come to
fruition.” Rutter v. Carroll’s Foods of the Midwest, Inc., 50 F. Supp. 2d 876,
884 (N.D. Iowa 1999). We have previously said,
An anticipated nuisance will not be enjoined unless it clearly
appears a nuisance will necessarily result from the act . . . it is
sought to enjoin. Relief will usually be denied until a nuisance
has been committed where the thing sought to be enjoined may
or may not become such, depending on its use or other
circumstances.
Livingston v. Davis, 243 Iowa 21, 31, 50 N.W.2d 592, 599 (1951) (citing
Amdor v. Cooney, 241 Iowa 777, 784, 43 N.W.2d 136, 141 (1950)). This
standard is akin to our “clear and convincing evidence” standard. See King
v. King, 291 N.W.2d 22, 24 (Iowa 1980) (“Clear and convincing evidence is a
standard that lies somewhere between a preponderance of evidence and
evidence beyond a reasonable doubt.”).
8
In its ruling, the district court stated “[t]he evidence in the record
convinces the Court that with careful and diligent operation, this facility
need not necessarily constitute a nuisance even to the closest neighbors,
the Caseys, at one mile away.” We agree. While the neighbors’ concerns
are understandable, they have failed to meet their burden of proof for an
anticipated nuisance.
The neighbors are all long-time residents of the area where Sow 1 is
proposed to be located. Robert and Patricia Casey live one mile northwest
of Sow 1. Ken and Cynthia Witham live about 1.1 mile north/northwest of
Sow 1. Jeff Weber lives a little over two miles northwest of Sow 1. Except
for the Caseys and Withams, none of the neighbors live within two miles of
the proposed location for Sow 1. All of the neighbors who testified either in
person or by deposition expressed concerns about health issues, water
quality issues, odor issues, and a perception property values would decline.
We address each of these issues in turn.
1. Health issues. Some of the neighbors testified they had health
concerns if General Development was allowed to go forward with this
facility. None of them claimed present adverse effects from other CAFOs
presently in the vicinity. Some of the neighbors have existing health
conditions they fear will worsen with the presence of Sow 1. Jeff Weber has
had a kidney transplant and is required to take immunosuppressant drugs.
He is concerned biologic agents from the proposed facility may cause him
infection in light of his compromised immune system. Eugene Lemke lives
three miles east/northeast of the proposed facility and suffers from
emphysema and asthma. Pam Klein has had a liver transplant and Marlene
Altman suffers from a lung problem. However, when determining whether a
nuisance exists, the fact finder uses a “normal person standard” to
determine whether a nuisance involving personal discomfort or annoyance
9
is significant enough to constitute a nuisance. Weinhold, 555 N.W.2d at
459.
We agree with the district court the evidence concerning health issues
is speculative due to the distance the neighbors live from the site of the
proposed facility. Dr. Stephanie Seemuth, an osteopathic physician,
testified on behalf of the neighbors. She testified Sow 1 will cause “negative
health risk to people around it.” On cross-examination, Dr. Seemuth
conceded these effects will not “necessarily result” from the location and
operation of the proposed facility. The studies upon which she relied dealt
with children living on farms with CAFOs and workers exposed daily to the
fumes and dusts of CAFOs. The neighbors presented no credible evidence a
serious health threat is posed to normal individuals living one or more miles
from a CAFO.
2. Water quality issues. The neighbors expressed concerns about
the potential for groundwater contamination. The neighbors obtain their
drinking water from wells, some of which are shallow. For example, the
Caseys rely on a forty-foot well. The site of Sow 1 is low and in wet years
has standing water. Mel Berryhill, who was the operator of the Milford,
Iowa, water plant for eighteen years, testified on behalf of the neighbors. He
explained the water table in the vicinity is three to six feet underground and
the proposed facility will be ten to eleven feet deep. He testified there is an
alluvial aquifer in the area. According to Berryhill, there is a “high to
moderate” potential for well and aquifer contamination. He noted there is
an agricultural drainage well located a mile to a mile-and-a-half away from
the proposed facility.
Dennis Johnson, an engineer from Windom, Minnesota, who often
works for developers of hog confinement facilities, testified for General
Development. According to Johnson, all of the concerns expressed by the
10
neighbors have been addressed. The manure pit will be made of
heavily reinforced concrete cement. The ground elevation has been raised
so the top of the pit will be four-and-a-half feet above the 100-year flood
level. The agricultural drainage well is scheduled to be closed. An
intermittent stream near the proposed facility will be relocated. Tile will be
installed around the footing of the concrete pits to artificially lower the
ground water. Moreover, the DNR concluded the engineer had adequately
addressed concerns about groundwater contamination. We agree with the
district court the neighbors failed to prove groundwater contamination will
necessarily result from Sow 1.
3. Odor issues. It is undisputed hog manure stinks. Dr. James
Moore, a retired professor from Oregon State University with a Ph.D. in
livestock waste systems, testified on behalf of the neighbors. He opined the
neighbors will be “negatively influenced,” the use of their property will be
“impacted,” and they will regard the proposed facility as a nuisance. He
said a deep pit system is one of the most odor-producing systems that can
be used to raise hogs because it stores the waste in pits for up to twelve
months and gives the waste an opportunity to anaerobically break down.
However, he conceded deep pit storage such as the one planned for Sow 1 is
by far the most predominant type of manure storage used in Iowa and the
upper Midwest. Dr. Moore noted fans will withdraw the gases generated by
the manure and place them in the atmosphere, which can impact the
neighbors. He acknowledged with “very attentive” operators, the process of
“knifing” or “injecting” manure into the soil will “significantly” reduce odor.
He also acknowledged tree lines have been shown to reduce odor.
In response, General Development called Dr. Dwaine Bundy.
Dr. Bundy is retired from Iowa State University and currently is a
consultant for hog confinement operators. He testified management
11
practices have a significant impact on odor, such as including additives
in the deep pit, cleaning, and type of feed. He testified one advantage of the
deep pit system is that less surface area of the manure is exposed, which
causes a reduction in odor. Dr. Bundy stated he would not expect a
nuisance to occur at a half to one mile away or more. He claimed spreading
manure by injection can cause a thirty to ninety percent reduction in odor
at the time of application and no appreciable odor should remain after
twenty-four hours. Eric Wiklund from the DNR testified most complaints
about odor come from people living less than a mile from a CAFO.
We agree with the district court it is “debatable” whether the odors
produced by Sow 1 will rise to the level of an actionable nuisance.
Dr. Moore and Dr. Bundy agree the level of odor will depend on the type of
manure management system (here a deep pit system), distance between the
facility and the neighbors, direction of the prevailing winds, the method and
means of handling manure, location of trees, and the skills of the operators
applying the manure to the fields. Until the facility is in operation, we
cannot say it inevitably will produce odors which qualify as a nuisance.
4. Property value concerns. Finally, the neighbors also expressed
concerns their property values will decrease as a result of Sow 1. James
Kesterson, an appraiser and realtor from Fort Dodge, Iowa, testified on
behalf of the neighbors. He opined some properties in the vicinity would
suffer a loss in value because people do not want to live near a hog
confinement facility. Kesterson did not specify which properties would
decrease in value nor did he quantify the expected loss in value. On cross-
examination, he was asked, given the number of existing CAFOs already in
the area, whether one more would cause a reduction in value. Kesterson
said it would “depend.”
12
Two experts testified for General Development with respect to
Sow 1’s impact on property values. Dr. Bruce Babcock, an economics
professor at Iowa State University, testified about a study he conducted on
behalf of the Center for Agriculture and Rural Development. The study
found a new CAFO within a quarter of a mile of a residence may reduce the
value of the property by ten percent. The perceived loss in value falls
steeply when the new facility is a half mile away and at one-and-a-half miles
away, the impact is negligible. Fred Greder, an independent fee appraiser,
also testified. He acknowledged a reduction in property values may occur,
but it was not probable. In his opinion, there are several factors bearing on
whether a decline in the value of any particular property will occur: (1) the
highest and best use of the property; (2) distance; (3) direction from unit to
account for prevailing wind; (4) whether the CAFO is within view of the
property in question; (5) the size of the CAFO; (6) whether manure is stored
indoors or outdoors; (7) whether the property in question is modest or
expensive; and (8) whether the pigs are locally owned or non-locally owned.
The district court found all of the experts credible. We agree with the
district court that we cannot conclude based on the conflicting evidence
that property values will necessarily or certainly decline should the CAFO
be built.
IV. Conclusion.
The neighbors’ experts raised legitimate concerns regarding the
operation of Sow 1. However, those experts conceded they could not be
certain a nuisance will necessarily result if General Development is allowed
to develop and operate Sow 1. Moreover, while the neighbors’ attorney
argued the defense experts were biased toward the hog industry, the district
court found those experts credible, at least to the extent their testimony
cast doubt on whether Sow 1 would cause a nuisance.
13
In recent years, hog confinement operations have
become more controversial as they grow in number and size. Our task here
is a narrow one—we are asked to determine whether the neighbors have
proven an anticipatory nuisance. We agree with the district court they have
not.
AFFIRMED.
All justices concur except Larson, J., who takes no part.