               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.
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      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.
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       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.
