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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
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 1There

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
on the record, it appears Sow 1 was expected to compost 260 sows and the rest would be gilts and preweaned pigs.
3Based

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. A. Merits. 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

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