Construction of Hog Confinement Operation Can Go Forward – Owners Entitled To Show That Operation Can Be Conducted Nuisance-Free

March 6, 2008 | Roger McEowen

Livestock agriculture produces odors, and large-scale animal confinement facilities can produce a lot of odors.  That has the tendency to raise concerns by adjacent owners whose use and enjoyment of their property may be impacted by the offensive odors.  As a result, the disaffected neighbors may sue the livestock operation on a nuisance theory.  The claim is that the odors unreasonably interfere with the neighbors use and enjoyment of their property.  Sometimes neighbors sue before the operation is built in an attempt to stave off the construction of the facility.  That’s a request for an injunction – a court order stopping construction.  That’s what was involved in this case. 

Here, the plaintiffs, a group of neighbors, sought an injunction against the construction of a 5,400 sow, farrow-to-wean operation.  The neighbors live at least 1 mile away from the site, with some living more than two miles away. 

They sued under the legal theory of anticipatory nuisance.  But, the rule in Iowa has been that an injunction blocking construction of an operation as an anticipated nuisance will not be granted unless "it clearly appears a nuisance will necessarily result."  The neighbors claimed that the operation would reduce their property values, cause groundwater contamination, produce odor that would be a nuisance, and cause health problems. On the other hand, the hog operation presented evidence and expert testimony which disputed all of those claims.

The trial court ruled that the neighbors did not prove that a nuisance "will clearly and necessarily result from the operation of the facility as presently approved."  Specifically, the trial court judge determined that there was conflicting evidence regarding declining property values.  Thus, the court could not rule that such a decline would “necessarily or certainly” occur. 

The court also found that the plaintiffs’ claims regarding groundwater contamination were “speculative and remote.”  The court noted that while the operation would undoubtedly produce odors, the evidence revealed that, with proper management, the operation “need not necessarily constitute a nuisance.”  In addition, the court determined that the evidence did not support the plaintiffs’ claim that a serious health threat would be posed to persons one or more miles away from the defendant’s operation.  So, stopping construction of the operation wasn’t the correct approach, but the court noted that the defendant could still be successfully sued under a nuisance theory after it began operating and the evidence supported such a claim.       

The plaintiffs petitioned the Iowa Supreme Court to hear the case and the Court agreed to take the case.      

While noting that people don’t want to live near a hog confinement operation and that such operations do smell, the Supreme Court noted that the grant of an injunction based on an anticipatory nuisance is an extraordinary remedy that requires proof that the defendant’s conduct will necessarily result in a nuisance.  The Court agreed that the plaintiffs had failed to prove their case.  Concerning the plaintiffs’ health claims, the Court reasoned that the claims were speculative due to the distance of the plaintiffs from the proposed operation.  On the water quality claims, the Court believed that the evidence revealed that the plans for the hog operation had adequately addressed possible water quality issues.  The distance issue was also relevant to the odor issue.  As such, the Court could not say that a nuisance would inevitably result and that the determination of whether the operation constituted a nuisance could only be determined after the hog facility was operational.  Similarly, on the issue of potential decline in the plaintiffs’ property values, the Court again focused on the distance of the plaintiffs’ homes from the proposed facility.  Accordingly, the Court believed that the plaintiffs lived too far from the proposed hog operation for the Court to find that the plaintiffs’ properties would suffer a definite decline in value.  The Court also held that the trial court did not make a mistake by allowing into evidence the defendant’s compliance with state environmental rules and regulations.  Such evidence, the Court reasoned was relevant on the issue that the defendant might be able to conduct the operation without creating a nuisance.

So, the end result is that it is very difficult to successfully sue for an anticipated nuisance.  There must be fairly conclusive evidence that the challenged activity cannot be conducted nuisance-free.  That’s a pretty tough standard for a plaintiff to satisfy.  Simpson, et al. v. Kollasch,749 N.W.2d 671 (Iowa Sup. Ct. 2008).