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 Pharm's wastewater storage lagoon in Sioux County was exempt from county
Plaintiff Sioux Pharm, Inc.
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.
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:
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 Board's finding that Sioux Pharm's 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.
This case comes to us from the district court's summary judgment ruling on Sioux Pharm's 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).
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 §§ 335.1, 335.3; Goodell v. Humboldt County, 575 N.W.2d 486, 494 (Iowa 1998). One limitation on the county's zoning power is the express preemption of county zoning of agricultural land and structures under section 335.2:
Iowa Code § 335.2 (emphasis added). Section 335.2 was "intended as a protection for the farmer and his investment in his land." Goodell, 575 N.W.2d at 494 (citing H.F. 426, 1947 H.J. 587 (comments and explanation); Note, County Zoning in Iowa, 45 Iowa L.Rev. 743, 754 (1960); Neil D. Hamilton, Freedom to Farm! Understanding the Agricultural Exemption to County Zoning in Iowa, 31 Drake L.Rev. 565, 574 (1981-82) ("the exemption of section 358A.2 [now section 335.2] was a significant statement of the `freedom to farm'")).
In this case, the district court determined that the wastewater lagoon was built by Sioux Pharm, Inc., a pharmaceutical manufacturer, and not the landowner, Carol J. Kramer, as trustee of her revocable trust, or Dr. Allan Kramer, who farms the land. The court further noted that Sioux Pharm, Inc. is not in the business of storing or selling fertilizers or soil containers, or of raising crops or livestock. As the court stated:
The court therefore concluded the storage lagoon was subject to Sioux County zoning regulations.
On appeal, Sioux Pharm contends the district court erred in determining its wastewater storage lagoon was not primarily adapted for use for agricultural purposes, because the lagoon's "only use is for storage of wastewater that is used as fertilizer for the cultivation of crops as part of the farming operation" conducted by Dr. Allan Kramer on the farm on which the lagoon is located.
In determining what constitutes "agricultural purposes" within the scope of the section 335.2 exemption, our supreme court has relied upon a definitional test
Kuehl v. Cass County, 555 N.W.2d 686, 688 (Iowa 1996). Qualification for the exemption must be based on a factual analysis of the use of the land or structure. See Hamilton, Freedom to Farm!, 31 Drake L.Rev. at 567.
We agree with Sioux Pharm that the facts in the instant case have similarities to the facts in DeCoster, 497 N.W.2d at 849-51. In DeCoster, the plaintiff sought to construct a livestock waste storage basin in conjunction with the construction of a multi-structure hog confinement facility in Franklin County. Id. at 849. The plaintiff planned to custom farm the remaining portion of the farm on which the waste storage basin was located. Id. The plaintiff proposed that all the waste would be removed from the basin and applied to the farmland in accordance with DNR guidelines. Id.
The supreme court determined "the storage and disposal of hog waste from a holding basin is . . . clearly a part of the agricultural function." Id. at 853. The court reasoned, "It would be somewhat incongruous to exempt hog confinement buildings from county regulation and at
In DeCoster, the storage basin was constructed to store the waste that was the by-product of the livestock raised in hog confinement facilities located on the plaintiff's farm. In this case, the lagoon was constructed to store the wastewater that is the by-product of Sioux Pharm's industrial manufacturing facility located in Sioux Center. Sioux Pharm manufactures chondroitin sulfate for pharmaceutical purposes, a process that produces 15,000 to 18,000 gallons of wastewater daily. Because the City of Sioux Center will not accept the wastewater at its treatment facility, Sioux Pharm transports the wastewater to the lagoon. Although the wastewater is eventually used to fertilize the land farmed by Dr. Kramer, the fact remains that the primary purpose and functional aspect of the lagoon is to store Sioux Pharm's industrial wastewater. Further, as observed by the district court:
We acknowledge Sioux Pharm's efforts to find a beneficial reuse for its industrial wastewater. In this regard, one commentator has noted:
Ginette Chapman, From Toilet to Tap: The Growing Use of Reclaimed Water and the Legal System's Response, 47 Ariz. L.Rev. 773, 773 (2005). However, unless the legislature amends Iowa Code section 335.2 to expand the limitation on county zoning to include wastewater reuse facilities, we decline such a broad interpretation.
In sum, the lagoon does not serve to store a product of agriculture (such as a grain facility), or a by-product of agriculture (such as a livestock waste lagoon). The wastewater transported by Sioux
Sioux Pharm also alleges the district court erred in failing to find that Sioux Pharm's use of the storage lagoon was a grandfathered nonconforming use pursuant to Article XXII, Section 22.2 of the 2008 zoning ordinance (providing for the grandfathering of lawful uses of land under the 1979 zoning ordinance that do not conform to the new regulations of the 2008 zoning ordinance). The Board argues that this issue has not been preserved for our review on appeal.
"It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal." Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling on that issue in order to preserve error for appeal. Id. at 537; Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995); State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206 (Iowa 1984). "It is not a sensible exercise of appellate review to analyze facts of an issue without the benefit of a full record or lower court determination." Meier, 641 N.W.2d at 537. Here, the court did not address or rule on the grandfathered nonconforming use issue raised by Sioux Pharm, and Sioux Pharm did not request a ruling on this unresolved issue by a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) or otherwise. Accordingly, the district court was not given an opportunity to address its failure to rule on the issue either by making a ruling or refusing to do so. See id. at 539. We find Sioux Pharm has failed to preserve error on this issue.
Upon our review, we agree with the district court that no genuine issue of material fact exists and there is substantial support in the record that Sioux Pharm's wastewater storage lagoon is subject to the Sioux County zoning regulations. Sioux Pharm's argument for an agricultural exemption on the basis that the lagoon's sole purpose is for the storage of wastewater until it can be used as fertilizer ignores the lagoon's actual and, more importantly, primary purpose. Even assuming the wastewater does have some benefit to crops upon the farmland where the lagoon is located, this does not negate the fact that the primary purpose for the lagoon is for the storage of the wastewater created by Sioux Pharm's manufacturing facility. Because it does not qualify for an agricultural