749 N.W.2d 671 (Iowa 2008)
In early 2003, General Development L.L.C. filed two separate applications with the Iowa Department of Natural Resources for permits to construct confined animal feeding operations referred to as Sow 1 and Sow 2 in Sherman Township, Kossuth County.1 The operations were to be located approximately two miles apart, with manure stored in concrete pits under the buildings and spread once a year on nearby farmland according to management plans.2
In May 2003, General Development published notices in the Algona Upper Des Moines newspaper stating its intent to build the two CAFOs.3 A public meeting was held, the Kossuth County Board of Supervisors submitted concerns to the DNR, and in August 2003 the DNR issued permits for construction of Sow 1 and Sow 2.4
Prior to the issuance of the permits, the plaintiffs, neighbors of the proposed facilities, filed this case alleging nuisance and anticipatory nuisance.5 The district court granted partial summary judgment dismissing the nuisance claim, leaving the anticipatory nuisance claim for a bench trial.6
At the bench trial, evidence established that the permit for Sow 2 had expired and Luke Kollasch had no current plans to build it, though he might reapply later.7 For Sow 1, the facility would house 10,900 pigs, compost approximately 2500 dead pigs a year, and store and spread approximately five million gallons of manure.8 Several neighbors testified regarding concerns about odors, water contamination, health effects, and reduction in property values, and both parties presented expert and lay testimony on these topics.9 The district court found the neighbors failed to prove an anticipatory nuisance and dismissed their petition.10
On appeal, the neighbors challenged the district court's ruling by arguing it erred in only considering the Sow 1 facility, in considering DNR standards and regulations, and in concluding that Sow 1 would not necessarily constitute a nuisance.11
Whether the district court erred by only considering the Sow 1 facility?12
Courts do not decide cases when the underlying controversy is moot because it would be entirely speculative to rule on a proposed facility for which the permit has expired, the developer has no current plans to build, and any future construction would require new permits subject to changed circumstances such as revised plans, alterations in the law, or movement of neighbors.13
No. The established facts demonstrate that the permit for Sow 2 had expired and Luke Kollasch had no current plans to build it, although he might reapply later. General Development would need to obtain a new construction permit from the DNR if it later decided to proceed.14 The Kossuth County Board of Supervisors has since adopted the master matrix statute that would govern any new application.15 Therefore, the district court correctly determined that Sow 2 presented no presently threatened nuisance suitable for injunctive relief.16
The district court did not err by limiting its ruling to the Sow 1 facility.17
Whether the district court erred by considering DNR standards and regulations?18
Although compliance with regulations is not a defense to a nuisance claim, evidence of compliance with DNR standards and regulations is relevant because it tends to show whether a nuisance would necessarily result from the proposed operation.19
No. The established facts show that the district court admitted evidence of General Development's compliance with DNR standards and regulations during the bench trial on the anticipatory nuisance claim.20 This evidence was properly considered as one factor bearing on whether the facility would necessarily produce a nuisance, even though such compliance alone would not defeat a proven nuisance claim.21
The district court did not err by considering DNR standards and regulations.22
Whether the district court erred by concluding the neighbors failed to prove an anticipatory nuisance?23
An anticipated nuisance will not be enjoined unless it clearly appears that a nuisance will necessarily result from the act sought to be enjoined.24 This standard is equivalent to clear and convincing evidence.25 Relief is ordinarily denied until a nuisance has actually been committed where the thing sought to be enjoined may or may not become a nuisance depending on its use or other circumstances.26
No. The neighbors presented expert and lay testimony raising concerns about health effects, water contamination, odors, and property values from the proposed Sow 1 facility. However, the neighbors' experts conceded that negative effects would not necessarily result from the facility's operation at the distances involved.27 The district court found the defense experts credible in casting doubt on whether a nuisance would necessarily occur.28 Because the neighbors failed to meet the high burden of proving that a nuisance will necessarily result, the district court correctly denied the injunction.
The district court did not err by concluding the neighbors failed to prove an anticipatory nuisance.29