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IN THE COURT OF APPEALS OF IOWA No. 0-636 / 10-0058 Filed November 24, 2010

CAROL J. KRAMER, as Trustee of the Carol J. Kramer Revocable Trust dated December 12, 2001, ALLAN KRAMER, Individually, and SIOUX PHARM, INC., an Iowa Corporation, Plaintiffs-Appellants, vs. BOARD OF ADJUSTMENT FOR SIOUX COUNTY, IOWA, BOARD OF SUPERVISORS FOR SIOUX COUNTY, IOWA, and SHANE A. WALTER, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Sioux County, James D. Scott, Judge.

Plaintiffs appeal from the district courts entry of summary judgment on plaintiffs certiorari action. AFFIRMED.

James E. Nervig of Brick Gentry P.C., West Des Moines, and Daniel J. Mouw of Oostra, Bierma & Van Engen, P.L.C., Sioux Center, for appellants. Jeff W. Wright of Heidman Law Firm, L.L.P., Sioux City, and Coleman J. McAllister, Sioux County Attorney, Orange City, for appellees.

Heard by Mansfield, P.J., and Danilson and Tabor, JJ.

2 DANILSON, J. Plaintiffs Carol J. Kramer, as trustee of her revocable trust, Allan Kramer, and Sioux Pharm, Inc. (collectively Sioux Pharm), sought to establish that Sioux Pharms wastewater storage lagoon in Sioux County was exempt from county zoning regulations. The Sioux County Board of Adjustment disagreed, and the district court granted summary judgment in favor of the defendants. On appeal, Sioux Pharm argues that these decisions represent an erroneous interpretation of Iowa Code section 335.2 (2007). The defendants, who are the county board of adjustment, the county zoning administrator, and the county board of supervisors (collectively "the Board"), disagree and urge that the district courts interpretation of section 335.2 was correct. We agree with the district court that there is no genuine issue of material fact and that the wastewater storage lagoon is subject to Sioux County zoning regulation because it is not primarily adapted for use for agricultural purposes. The judgment of the district court is affirmed. I. Background Facts and Proceedings. Plaintiff Sioux Pharm, Inc.1 is an Iowa corporation that manufactures chondroitin sulfate through an extraction process using cow tracheas, pig and chicken parts, and corn. This process produces 15,000 to 18,000 gallons of industrial wastewater daily at Sioux Pharms manufacturing facility located in Sioux Center.2 The wastewater is described as a "filtered food -grade bovine

Plaintiff Dr. Allan Kramer is the president and authorized agent of Sioux Pharm, Inc. For purposes of simplicity, we will use "Sioux Pharm" to reference the plaintiffs collectively, unless specifically stated otherwise. 2 Iowa Code section 455B.171(9) defines "industrial waste" as "any liquid, gaseous, radioactive, or solid waste substance resulting from any process of industry, manufacturing, trade, or business or from the development of any natural resource."

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3 protein solution." Sioux Center will not accept the wastewater into its municipal treatment facility. In 2003, Sioux Pharm began construction, without prior

approval from Sioux County or the Iowa Department of Natural Resources (DNR), of an earthen wastewater storage lagoon located on farmland in rural Sioux County owned by plaintiff Carol J. Kramer, as trustee of her revocable trust. In April 2004, the DNR approved the wastewater storage lagoon as built, and issued Sioux Pharm an operation permit, but stated that "any product going to the proposed lagoon is truly waste." The lagoon is an uncovered earthen pit that holds a total of 859,000 gallons of the "high-strength organic" wastewater that plaintiff Dr. Allan Kramer purchases from Sioux Pharm. Since 2004, Sioux Pharm has trucked its wastewater to the storage lagoon. The wastewater

contains nutrients that have some benefit to crops. Dr. Kramer farms the land owned by the Carol J. Kramer trust, and he periodically applies wastewater to nine application sites at the rate the DNR authorizes. Although Sioux Pharm has a commercial fertilizer manufacturer/dealer license, it is not authorized to sell wastewater after it has been stored in the lagoon, as once the wastewater is placed into the lagoon it becomes contaminated with bacteria. The unincorporated areas of Sioux County are subject to a county zoning ordinance that was adopted in 1979.3 The lagoon is located in an unincorporated area zoned for agricultural use. According to Article 5, Section (4.16) of the zoning ordinance, "treatment facilities in an Agricultural District require a Special
On August 19, 2008, the 1979 zoning ordinance was superseded by the 2008 zoning ordinance. Any differences between the ordinances are not relevant for purposes of our review.
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4 Exception Use permit." Although the DNR approved both Sioux Pharms

construction (after the fact) and use of the lagoon, Sioux Pharm had not obtained a special exception use permit from Sioux County Board of Adjustment. Upon receipt of multiple complaints about the lagoon and the odor emitting from it, Sioux County Zoning Administrator Shane Walter determined that the lagoon was being operated without a special use permit. In January and March 2008, Walter provided Sioux Pharm with written notices that its construction and use of the lagoon was in violation of the zoning ordinance. Sioux Pharm met with the Sioux County Planning and Zoning Commission at its April 17, 2008 meeting. Sioux Pharm stated the wastewater stored in the lagoon was a "filtered food grade bovine protein solution." After the meeting, Sioux Pharm applied for a permit for a "non-farm" use involving "industrial wastewater." In August 2008, the Board granted Sioux Pharm a temporary special exception use permit "for construction of an earthen wastewater lagoon used for storage of industrial wastewater from the Sioux Pharm plant in Sioux Center, Iowa." The temporary permit was subject to the following conditions: 1. Sioux Pharm will be required to place a no-access chainlink fence on the South, East, and West side of the lagoon, in addition to a steel barrier rail on the North side of the lagoon. The fence and the barrier are to be completed by September 15, 2008. 2. The odor must be reduced by 50% or more by June 1, 2009. 3. Full compliance with DNR is required. Failure to maintain full compliance will render the Special Exception Use Permit null and void. 4. This temporary Special Exception Use Permit expires June 1, 2009 at which time the application will be reviewed for extension or expiration by the Board of Adjustment.

5 The Board reviewed the recommendations of the Planning and Zoning Commission in regard to the status of the temporary permit at its May 27, 2009 meeting. The Board determined Sioux Pharm had failed to meet the conditions imposed by the temporary permit and declined to extend the permit. The

temporary permit expired on June 1, 2009. Sioux Pharm continued to transport wastewater to the lagoon daily, despite the expiration of the temporary permit. On June 1, 2009, Sioux Pharm filed a multi-count petition seeking a writ of certiorari, declaratory relief, and injunctive relief. All counts were premised upon establishing that the use of the wastewater storage lagoon served an agricultural purpose and was exempt from Sioux County zoning regulations. Both parties filed motions for summary judgment. The parties agreed the issue should be resolved as a matter of law. On December 1, 2009, after a hearing on the

motions, the district court entered judgment in favor of the Board, concluding substantial evidence supported the Boards finding that Sioux Pharms storage lagoon was not primarily adapted for use for agricultural purposes and was therefore subject to Sioux County zoning regulations. Sioux Pharm filed a motion to amend or enlarge the ruling, but the court reaffirmed its prior ruling. Sioux Pharm now appeals. II. Standard of Review. This case comes to us from the district courts summary judgment ruling on Sioux Pharms petition for writ of certiorari, declaratory relief, and injunctive relief. We review a ruling on a motion for summary judgment for correction of errors at law. City of Johnston v. Christenson, 718 N.W.2d 290, 296 (Iowa

2006). Summary judgment is properly granted "if the pleadings, depositions,

6 answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 1.981(3). III. Agricultural Use. The question before us is a matter of statutory interpretation. Iowa Code chapter 335 establishes general zoning authority for counties, the scope of such authority, and the procedures for exercising that authority. See Iowa Code

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