author: TERNUS, Justice.

text:
    CARROLL AREA CHILD CARE CENTER, INCORPORATED, Appellee, v. CARROLL COUNTY BOARD OF REVIEW, Appellant.
    No. 98-1047.
    Supreme Court of Iowa.
    July 6, 2000.

      John C. Werden Jr., County Attorney, for appellant.
    A. Eric Neu of Neu, Minnich, Comito & Hall, P.C., Carroll, for appellee.
   TERNUS, Justice.

The appellant, Carroll County Board of Review, allowed a partial property tax exemption to the appellee, Carroll Area Child Care Center, Incorporated. On the Center’s appeal to the district court, the district court granted the Center a full exemption. The Board appeals. Upon our de novo review, we affirm the district court.

I. Background Facts and Proceedings.

The Center is a non-profit corporation, established in 1978 pursuant to Iowa Code chapter 504A (1977). According to its articles of incorporation, the Center is to be operated exclusively for educational and charitable purposes. Its main function has been to provide quality day care services for persons in and about Carroll County. The Center has qualified for exemption from state and federal income taxation.

In 1996, the Center filed a claim for property tax exemption with the Carroll County assessor. See Iowa Code § 427.1(8) (1997) (providing that property of charitable institutions is exempt under certain circumstances). The assessor denied the Center’s claim for exemption and assessed the property at its full value. The Center protested this assessment to the Carroll County Board of Review. See id. § 441.37(l)(c) (allowing dissatisfied property owner to protest an assessment on the basis that the property is exempt from taxation). The Board found that thirty per cent of the value was exempt. See id. § 427.1(14) para. 2 (providing for partial exemptions).

The Center appealed the Board’s decision to the district court. See id. § 441.38(1) (permitting appeals to district court from actions of a board of review). After trial, the district court determined that the Center’s property was fully exempt. See id. § 441.39 (stating that the district court “shall hear the appeal in equity and determine anew all questions arising before the board”). The Board has brought this appeal.

II. Scope of Review.

“Tax exemption appeals are equitable in nature and, therefore, our review of the district court’s decision is de novo.” Partnership for Affordable Housing, Ltd. Partnership Gamma v. Board of Review, 550 N.W.2d 161, 163 (Iowa 1996); see also Iowa R.App. P. 4. Athough this court is not bound by the trial court’s findings of fact, we give them weight, particularly when considering the credibility of witnesses. See Care Initiatives v. Board of Review, 500 N.W.2d 14, 16 (Iowa 1993); Iowa R.App. P. 14(f)(7).

III. Issues on Appeal.

On appeal to this court, the Board argues, as it did in the district court, that the Center is entitled to no exemption, not even a partial one. We do not think the law permits the Board to challenge on appeal its own determination that the Center was entitled to a partial exemption from property taxation. In an early case under a predecessor statute, we held that a board of review could not argue on appeal that the assessment should be raised above the value determined by the board itself. First Nat’l Bank v. City Council, 136 Iowa 203, 208, 112 N.W. 829, 830 (1907); see also Iowa Code § 441.38(1) (providing for appeal from board’s decision by property owner or assessor; no provision made for the board to challenge its own assessment); Aerie 1287, Fraternal Order of Eagles v. Holland, 226 N.W.2d 22, 25 (Iowa 1975) (holding that only issue before the appellate court was whether the partial exemption granted by the district court should be higher; in the absence of a cross-appeal, presumably by the assessor, court would not consider whether exemption should be less than that allowed).

We adhere to this principle in the case before us and hold that the Board may not take the position on appeal, either in the district court or this court, that its decision was wrong and that the assessment should be raised. Because the assessor did not appeal, the only issue to be considered is whether the Center is entitled to the partial exemption granted by the Board or to a full exemption as determined by the district court. We turn first to the governing legal principles.

IV. General Principles Governing Property Tax Exemptions.

The Center’s request for an exemption from property taxation is based on Iowa Code section 427.1(8):

The following classes of property shall not be taxed:
8. Property of religious, literary and charitable societies. All grounds and buildings used or under construction by literary, scientific, charitable, benevolent, agricultural, and religious institutions and societies solely for their appropriate objects, not exceeding three hundred twenty acres in extent and not leased or otherwise used or under construction with a view to pecuniary profit.

Authority for a partial tax exemption is found in section 427.1(14):

The assessor, in arriving at the valuation of any property of the society or organization, shall take into consideration any uses of the property not for the appropriate objects of the organization and shall assess in the same manner as other property, all or any portion of the property involved which is leased or rented and is used regularly for commercial purposes for a profit to a party or individual. If a portion of the property is used regularly for commercial purposes an exemption shall not be allowed upon property so used and the exemption granted shall be in the proportion of the value of the property used solely for the appropriate objects of the organization, to the entire value of the property.

Iowa Code § 427.1(14) para. 2 (emphasis added). We strictly construe these statutes and any doubt about an exemption is resolved in favor of taxation. Care Initiatives, 500 N.W.2d at 16-17.

This court has repeatedly held that an entity must prove the following three factors by a preponderance of the evidence to establish the tax-exempt status of its property:

(1) [the entity] was a charitable institution at the time of the claimed exemption,
(2) [the entity] did not operate [the facility] with a view to pecuniary profit, and
(3) the actual use of [the facility] was solely for the appropriate objects of the charitable institution.

Partnership for Affordable Housing, 550 N.W.2d at 164. See generally Care Initiatives, 500 N.W.2d at 17 (stating that party claiming the exemption has the burden of proof). Because the Board granted a partial exemption to the Center, it necessarily found that the Center was a charitable institution at the time it claimed exempt status. Due to the fact that the assessor filed no appeal from the Board’s decision, we accept for purposes of our review that the Center qualifies as a charitable institution under chapter 427. See Aerie 1287, 226 N.W.2d at 25 (concluding that board’s allowance of a partial exemption obviated need on appeal to determine whether the taxpayer qualified as a charitable organization). With respect to the second factor, the Board concedes in its brief that the Center is not operated with a view towards pecuniary profit.

That brings us to the third factor— whether the actual use of the Center’s day care facility was solely for the appropriate objects of the institution. By virtue of the fact that the Board allowed a partial exemption, it obviously concluded that at least a portion of the facility was employed for appropriate charitable purposes, namely the care of children. Thus, the only issue in contention on this appeal is the extent to which the day care center was actually used for this charitable object.

V. Applicable Legal Principles for Determining Whether Use of Property is Charitable.

This court has referred to the requirement that the property be “used solely for the appropriate objects of the charitable institution” as the “actual use” test. See St. Ambrose Univ. v. Board of Review, 503 N.W.2d 406, 407 (Iowa 1993). Consistent with this characterization, in cases involving partial tax- exemption, our courts have examined the extent to which the property was actually used for the charitable purpose. See Aerie 1287, 226 N.W.2d at 25; Mayflower Homes, Inc. v. Wapello County Bd. of Review, 472 N.W.2d 632, 633-34 (Iowa App.1991). Before we can undertake such an analysis, however, we must identify the nature and scope of the charitable purpose or use at issue. See South Iowa Methodist Homes, Inc. v. Board of Review, 173 N.W.2d 526, 531 (Iowa 1970) (noting that the first step is to determine what objects are charitable). This preliminary step is of particular importance here, because in the Board’s view only child care provided to low-income families qualifies as a charitable endeavor. We turn to our prior cases for guidance on this matter.

A review of our prior cases demonstrates that this state is committed to a broad definition of “charity.” See Care Initiatives, 500 N.W.2d at 17 (“We give the term ‘charitable’ in the tax exemption statute a broad definition.”); Richards v. Iowa Dep’t of Revenue, 414 N.W.2d 344, 351 (Iowa 1987) .(“Iowa law has long embraced the broad view of charity.”). As we noted in Richards, charity is not limited to providing assistance to the needy. 414 N.W.2d at 351; accord South Iowa Methodist Homes, 173 N.W.2d at 531 (noting that the recipients of charity need not be limited to the financially destitute to qualify for a charitable exemption). It encompasses “all humanitarian activities.” Richards, 414 N.W.2d at 351 (quoting Elizabeth T. Tsai, Annotation, Receipt of Pay From Beneficiaries as Affecting Tax Exemption of Charitable Institutions, 37 A.L.R.3d 1191, 1197 (1971)). Such activities include “ ‘the gratuitous or partly gratuitous improvement of spiritual, mental, social and physical conditions of young people,’ ” as well as of the elderly. Id. (quoting Andrews v. Young Men’s Christian Ass’n, 226 Iowa 374, 383, 284 N.W. 186, 192 (1939)).

In the past our court has considered two requested exemptions for child care facilities. See Camp Foster YMCA v. Dickinson County Bd. of Review, 503 N.W.2d 409, 410 (Iowa 1993); St. Ambrose Univ., 503 N.W.2d at 406. These cases are not particularly helpful, however, because the child care centers under consideration were operated by entities who qualified as exempt institutions independent of their child care activities. See Camp Foster, 503 N.W.2d at 411 (facility was operated by the local YMCA to provide day care for children in the community); St. Ambrose Univ., 503 N.W.2d at 407 (facility was operated by St. Ambrose University primarily for children of its employees and students). Thus, the “actual use” test applied in those cases was less demanding. See Camp Foster, 503 N.W.2d at 411; St. Ambrose Univ., 503 N.W.2d at 407. It was not necessary for the YMCA or St. Ambrose University to establish that their child care facilities were charitable endeavors, so long as the facilities furthered the entities' charitable or educational missions. See Camp Foster, 503 N.W.2d at 411; St. Ambrose Univ., 503 N.W.2d at 407. Accordingly, in the Camp Foster case, the child care center was held exempt because it “promote[d] the general mission of the YMCA through meeting a recognized need of the local community.” 503 N.W.2d at 411. The child care facility in St. Ambrose University was granted exempt status because it facilitated the educational goals of the university’s students and faculty. 503 N.W.2d at 408.

In contrast, here, the sole charitable activity of the Center is the operation of its child care facility. Therefore, this court must determine to what extent that activity is itself charitable. Although we have no cases considering the exempt status of child care operations in this context, we can look for guidance to the numerous cases involving the care of the elderly by entities whose sole charitable endeavor was the facility at issue. See Friendship Haven, Inc. v. Webster County Bd. of Review, 542 N.W.2d 837, 838 (Iowa 1996); Care Initiatives, 500 N.W.2d at 15; Atrium Village, Inc. v. Board of Review, 417 N.W.2d 70, 71 (Iowa 1987); Richards, 414 N.W.2d at 346; Dow City Senior Citizens Hous., Inc. v. Board of Review, 230 N.W.2d 497, 498 (Iowa 1975); Evangelical Lutheran Good Samaritan Soc’y v. Board of Review, 200 N.W.2d 509, 510 (Iowa 1972); South Iowa Methodist Homes, 173 N.W.2d at 526-27; Mayflower Homes, 472 N.W.2d at 633; Friendship Ctr. West, Inc. v. Harman, 464 N.W.2d 455, 456 (Iowa App.1990); Bethesda Found. v. Board of Review, 453 N.W.2d 224, 225 (Iowa App.1990); Twilight Acres, Inc. v. Board of Review, 346 N.W.2d 40, 41 (Iowa App.1984); Hilltop Manor v. County Bd. of Review, 346 N.W.2d 37, 38 (Iowa App.1984); Evangelical Lutheran Good Samaritan Soc’y v. Board of Review, 267 N.W.2d 413, 414 (Iowa App.1978). We now examine these cases for guidance in determining the extent to which providing care to persons is charitable.

In reviewing our cases considering facilities for the elderly, there appear to be two requirements for the facility to qualify as a charitable endeavor. First, the facility must provide some level of care, as opposed to mere housing. Richards, 414 N.W.2d at 351 (“For an institution to be charitable it should provide care in addition to housing.”); see also Dow City, 230 N.W.2d at 499 (noting, in denying exempt status, that taxpayer provided housing, but no care). Second, the care must be made available on a gratuitous or partly gratuitous basis. See Richards, 414 N.W.2d at 353 (stating that “a truly charitable institution will make concessions on fees to residents unable to pay them” and that “the ‘partly gratuitous’ care of certain persons is a charitable purpose”). Accordingly, we have denied an exemption where the facility charged its occupants the full cost of their care and did not provide concessions on fees for those unable to pay. See, e.g., Friendship Haven, 542 N.W.2d at 840-41 (denying exemption in part because occupants of facility paid for their housing and care and so were not the recipients of charity); Care Initiatives, 500 N.W.2d at 18 (rejecting taxpayer’s argument that it provided gratuitous care to Title XIX residents where evidence showed that Title XIX reimbursement rate exceeded the facility’s average cost per patient day); Atrium Village, 417 N.W.2d at 71, 73 (denying exemption where monthly charges to residents were set at a level to recoup taxpayer’s expenses and facility did not admit or retain those persons who were unable to pay); Dow City, 230 N.W.2d at 499 (refusing exemption where charges were set at a level to make facility self-sufficient and no rent concessions were made to residents based on need). On the other hand, where charitable contributions defray the residents’ expenses, or fees are waived for needy residents, a charitable exemption has been granted. See, e.g., Richards, 414 N.W.2d at 353 (upholding exempt status where contributions of money, goods and services supported the establishment of the facility and helped to cover its ongoing operating expenses, and facility had admitted persons who could not pay in full); South Iowa Methodist Homes, 173 N.W.2d at 532-33 (granting exemption where room costs exceeded charges and some residents’ fees were subsidized by the taxpayer); Bethesda Found., 453 N.W.2d at 228 (holding the requirement that care be gratuitous or partly gratuitous was met where admission was nondiscriminatory and Title XIX payments did not cover the daily cost of covered residents); Hilltop Manor, 346 N.W.2d at 39 (holding that home for the elderly was exempt where fees covered only operating costs — facility had been built with donations — and recreational and religious activities were provided gratuitously by a volunteer auxiliary organization).

From these cases, we conclude that charity — gratuitous or partly gratuitous care — can be provided in two different ways. One manner of providing gratuitous or partly gratuitous care is to subsidize the care of those who are unable to pay. Another route of meeting the gratuitous-or-partly-gratuitous requirement is to use charitable contributions to cover the costs of establishing the facility and some portion of the ongoing operating expenses, thereby subsidizing the cost of the facility for all persons who use it, regardless of their ability to pay. We turn now to the facts of this case to determine whether the Center subsidized the costs of child care for those clients who could not otherwise afford to pay for the services, or whether charitable contributions helped to defray the costs of the building and the continuing operation of the day care, resulting in a below-expenses charge for those using the facility.

VI. Application of Actual Use Test to Facts.

The record shows that the Center is a state-licensed day care. It furnishes routine custodial care to children of parents who cannot personally supervise their children during the daytime. Unlike unlicensed, in-home day care providers, the Center is required to meet specific staff-to-child ratios designed to ensure the safety and health of the children, and its employees must have annual training in first aid and CPR. In addition to day care services, the Center has a pre-school program that is licensed by the Iowa Department of Human Services (DHS). Meals are served to all the children.

The Center is nondiscriminatory with respect to the families it serves. No evaluation of need or ability to pay is made and families that receive subsidies from the DHS are accepted. The director testified that forty to fifty per cent of the children who attend the Center qualify under the state’s child and adult food care program for free or reduced-cost meals.

The Center sets its charges to clients below its actual cost of providing care for the children. The director testified that if the Center charged what it actually cost to care for the children, many of its clients could not afford to bring their children to the Center’s day care. (According to the director, most of the parents of the children the Center serves receive minimum wage.) To make up the difference, the Center receives cash and in-kind contributions from local businesses and individuals, the local United Way, and local governmental entities; it also conducts frequent fundraising events.

All families are charged at the same rate, without regard to their financial resources, except those families who qualify for assistance from DHS. Because the Center accepts DHS clients, it must offer its services to such clients at the rate set by DHS. The DHS rates for child care services have ranged between thirteen and seventy cents per hour less than the rates charged other families using the Center’s day care. Approximately, five per cent of the children at the day care participate in the DHS program.

It is not the policy of the Center to provide free day care services. If a family has difficulty in paying the charges, the Center will attempt to work out a payment plan. In one case, for example, it waived payment until the family’s financial situation had improved. In other cases, the Center has allowed a parent to work at the day care to reduce the family’s child care bill. Payment is, however, expected at some point. There were only four cases in 1996 and 1997 where the Center wrote off charges as uncollectable because it knew the families in question could not pay; these charges totaled $372.48. When the Center believes a family has the resources to pay charges that are due, it has sought to collect overdue amounts in court. On the other hand, the Center has never refused to provide care to a family having difficulty paying its bill so long as the parents are employed and attempt to make some payment on their account.

From these facts, we conclude, first of all, that the Center furnishes more than mere housing or a place where children can reside while their parents are at work. It provides care in the form of supervision, recreational activities, and meals. Second, we conclude that all clients of the Center are receiving subsidized child care and, accordingly, all clients are receiving partly gratuitous services. This conclusion is based on two facts: (1) the Center charges less than it costs to provide the care; and (2) it obtains contributions from the community to make up the difference. The charitable nature of the Center’s activities is further established by the additional concessions it makes for low-income families who participate in the DHS program.

As we noted earlier, the Board argues that the Center’s exemption should be limited to that percentage of its clients who qualify for DHS assistance. But as our review of this court’s prior cases shows, charity is not limited to the needy. See, e.g., South Iowa Methodist Homes, 173 N.W.2d at 533 (holding that retirement home did not lose its tax exempt status because some of its residents were financially able to pay for their care); accord Hilltop Manor, 346 N.W.2d at 39 (noting the fact that residents could pay facility’s charges was not a basis to deny a charitable exemption where evidence showed that some services to residents were provided gratuitously and residents made no payment to cover cost of building or equipment, as those had been totally paid by donations). The fact that care for all clients is subsidized by charitable donations from the community entitles the Center to a full exemption, as determined by the trial court. Accordingly, the judgment of the district court is affirmed.

AFFIRMED.

All justices concur except McGIVERIN, C.J., who dissents, and LAVORATO, J. who takes no part.

      . It is difficult to accurately determine from the record the precise hourly cost of providing care in order to be able to compare that cost to the Center’s hourly charges. Nevertheless, we can determine from the record that contributions account for a significant portion of the Center’s income, and yet, with the exception of one year, it has consistently operated at a loss. The Board has not disputed the validity of the Center’s operating expenses, nor has it argued that its operating losses were due to inefficient management or some other factor within the control of the Center. It appears that the Center’s income is simply insufficient to cover the legitimate costs of providing day care for the Center’s clients. We readily conclude, therefore, that the Center's charges are less than its cost of furnishing services.

      . When the Center purchased and remodeled a new facility in 1996, it received almost $200,000 in in-kind and cash contributions and pledges towards the total cost of $771,-000. (The balance of the cost was financed primarily by a low-interest federal loan.) Ongoing expenses are defrayed in part by contributions from the City of Carroll, Carroll County, the Carroll Community Schools, the United Way, and local businesses and individuals.
      The Board discounts these contributions as indicative of a charitable activity because many of those making donations did so with the view that a quality child care center would facilitate economic development in Carroll County. We have found nothing in our prior case law, however, that makes the motivation of those contributing to a facility determinative of whether the facility is a charitable endeavor. See Atrium Village, 417 N.W.2d at 73 ("[A] statutory exemption does not depend alone on lofty or generous motives on the part of the donor.”). No doubt many private businesses and individuals are motivated to donate to worthy causes by the tax deduction given for such contributions. Their contributions are, nonetheless, considered charitable. Thus, it is the fact that voluntary contributions are made by the community that is important, not the personal motivations of the donors.


source: Caselaw Access Project

license: Public Domain

text:
    Lisa A. DETERMAN, Appellant, v. James H. JOHNSON and Diane V. Johnson, Appellees.
    No. 98-2050.
    Supreme Court of Iowa.
    July 6, 2000.

      Randall E. Nielsen of Pappajohn, Shri-ver, Eide & Nicholas, P.C., Mason City, for appellant.
    David L. Riley of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellees.
   TERNUS, Justice.

The appellant/plaintiff, Lisa Determan, discovered significant structural problems in the home she had purchased from the appellees/defendants, James and Diane Johnson. Determan filed a negligence action against the defendants to recover her costs of repair, but the trial court dismissed her claims on the basis that the defendants owed no duty to the plaintiff. The court of appeals affirmed, holding that the plaintiffs damages were not recoverable under tort law. This court granted further review and we now affirm.

I. Background Facts and Proceedings.

In 1990, the defendants decided to build a home for themselves. They did not have any house plans; they simply took pictures from a magazine to the local lumberyard and asked that plans be prepared. These plans were then submitted to the city for a building permit. Defendant James Johnson, a farmer and used-car dealer, listed himself as the contractor on the application for the permit. The defendants hired a local carpenter, however, to do the actual construction. When the house was completed, the defendants and their children moved in.

In 1992, the defendants decided to sell their home and listed it for sale at a price of $190,000. The plaintiff and her then-husband, Jeffrey Determan, were interested in purchasing the home but had concerns about the quality of the workmanship. After receiving some reassurances from their real estate agent,, the Deter-mans bought the house for $120,000. The purchase agreement contained the following language:

BUYERS acknowledge that they have made a satisfactory inspection of the property and are purchasing the property in its existing condition.
The BROKER, its agents, employees, and associates make no representations or warranties as to the physical or mechanical condition of the property, size, value, future value or income potential.

In 1997, after the Determans’ divorce, the plaintiff discovered a sag in the roof of the house. Further investigation, which included consultations with a local home-builder, an architect, and a structural engineer, revealed serious structural problems in the home. Specifically, the beam system supporting the roof was inadequate and did not comply with the applicable building code. In addition, a vapor barrier had not been properly installed, resulting in significant moisture problems. The plaintiffs consultants indicated that the roof could be in danger of collapsing.

The plaintiff then filed this action against the defendants seeking recovery under several different negligence theories. She sought to recover “repair costs, loss of use, inconvenience, emotional distress, and mental pain and suffering.” The case proceeded to trial. At the close of the evidence, the defendants moved for a directed verdict on several grounds, including that they owed no duty to the plaintiff and that her recovery was limited to contract remedies. With one exception, the district court granted the defendants’ motion on all of the plaintiffs claims, holding the defendants owed no duty to the plaintiff. The only claim remaining was the plaintiffs assertion that the defendants had fraudulently failed to disclose that a substantial portion of the wastewater treatment system extended beyond the property line. This claim was submitted to the jury, which returned a verdict in favor of the plaintiff, awarding damages in the amount of $8800. Judgment was entered on the jury’s verdict, and neither party has challenged this judgment on appeal.

The plaintiff appealed the trial court’s ruling on the defendants’ motion for directed verdict, claiming there was sufficient evidence to establish that the defendants owed her a duty. We transferred the appeal to the Iowa Court of Appeals, which affirmed the district court on the basis that the plaintiff had no tort remedy for her damages. See Moyer v. City of Des Moines, 505 N.W.2d 191, 193 (Iowa 1993) (holding that an appellate court may affirm on any ground “urged in the district court but not considered by that court”). Upon the plaintiffs request, we granted further review. Because we agree with the court of appeals that the plaintiff cannot recover under tort law, we do not address the issue of duty.

II. Scope of Review.

Our standard of review for the grant of a motion for directed verdict is well established:

We review the trial court’s decision to direct a verdict for the correction of errors of law. A defendant’s motion for directed verdict should be denied if there is substantial evidence to support the plaintiffs claim. “Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion.”

Hasselman v. Hasselman, 596 N.W.2d 541, 545 (Iowa 1999) (citations omitted) (quoting Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa 1990)). Our role, then, is to determine “whether the trial court correctly determined that there was insufficient evidence to submit the issue ... to the jury.” Id.

III. Governing Law.

This court has on several occasions in the past considered the compensability of economic loss damages in tort. It is helpful to briefly review this line of cases in deciding the appropriate outcome here.

We first addressed this issue in Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124 (Iowa 1984). In that case this court adopted the general rule that a plaintiff “cannot maintain a claim for purely economic damages arising out of [a] defendant’s alleged negligence.” Nebraska Innkeepers, 345 N.W.2d at 128.

In a subsequent decision, we extended this rule to bar claims based on strict liability in tort where a product sold by the defendant to the plaintiff failed to perform as it was expected, but caused no physical injury to person or property. Nelson v. Todd’s Ltd., 426 N.W.2d 120, 123 (Iowa 1988). We refined the Nebraska Innkeepers rule by stating:

We agree that the line to be drawn is one between tort and contract rather than between physical harm and economic loss.... When, as here, the loss relates to a consumer or user’s disappointed expectations due to deterioration, internal breakdown or non-accidental cause, the remedy lies in contract.
Tort theory, on the other hand, is generally appropriate when the harm is a sudden or dangerous occurrence, frequently involving some violence or collision with external objects, resulting from a genuine hazard in the nature of the product defect.

Id. at 125 (citation omitted). In deciding whether a particular claim is cognizable in tort or contract, we quoted with approval the following analysis suggested by a federal court of appeals:

“[T]he line between tort and contract must be drawn by analyzing interrelated factors such as the nature of the defect, the type of risk, and the manner in which the injury arose. These factors bear directly on whether the safety-insurance policy of tort law or the expectation-bargain protection policy of warranty law is most applicable to a particular claim.”

Id. at 124-25 (quoting Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1173 (3rd Cir.1981)). Notwithstanding our adherence to this multi-factor test, we have required at a minimum that the damage for which recovery is sought must extend beyond the product itself. Compare Flom v. Stahly, 569 N.W.2d 135, 141 (Iowa 1997) (holding plaintiffs claim was contractual in nature because harm caused by defect was limited to product), with American Fire & Cas. Co. v. Ford Motor Co., 588 N.W.2d 437, 438-39 (Iowa 1999) (permitting tort recovery where defect caused a sudden and dangerous occurrence causing damage not only to the product but to other property as well).

The distinction drawn in Nelson between tort claims and contract claims based on a defective product is illustrated by two of our cases in which we have applied the legal principles set forth in Nelson, but have reached differing results. Compare Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103 (Iowa 1995), with American Fire, 588 N.W.2d at 437. We will briefly discuss these cases now.

In Tomka, the plaintiff operated a custom feeding operation. 528 N.W.2d at 105. He sued the manufacturer of a growth hormone given to cattle that the plaintiff had contracted to feed to market weight. Id. The plaintiff claimed that the cattle did not gain weight as quickly as they should have and, as a result, it took the plaintiff longer to raise the cattle to a saleable weight. Id. As a consequence of the extended feeding period, the plaintiffs expenses were greater and he lost money on his custom feeding contracts. Id. Applying the rule set forth in Nelson, we held that the plaintiff could not recover under tort theories of liability because the product simply failed to do what it was supposed to do — promote the cattle’s growth. Id. at 107. We noted that “contract law protects a purchaser’s expectation interest that the product received will be fit for its intended use.” Id.

In contrast, in American Fire, we permitted a tort recovery when the defect in the product — a truck — caused a fire that damaged the truck and its contents. 588 N.W.2d at 438. We observed that “tort theory is generally available when the harm results from ‘a sudden or dangerous occurrence, frequently involving some violence or collision with external objects, resulting from a genuine hazard in the nature of the product defect.’ ” Id. at 439 (emphasis omitted) (quoting Nelson, 426 N.W.2d at 125).

With this framework to guide our analysis, we now consider the facts of the case before us.

IV. Application of Law to Facts.

In the present case the evidence introduced at trial showed that the house purchased by the plaintiff from the defendants suffered from significant structural defects. Specifically, the structural support for the roof was woefully inadequate and the moisture barrier in the walls had been improperly installed. These defects manifested themselves in the form of sagging areas in the roof, cracks in the walls, and moisture spots on the walls and ceilings. Although the plaintiffs experts testified that the roof could eventually collapse, that occurrence had not yet materialized at the time of trial. Thus, the plaintiffs damages consist of the expenses she has and will incur to repair the defects in the home’s construction.

In deciding the proper remedy for the plaintiffs loss, we look to “ ‘the nature of the defect, the type of risk, and the manner in which the injury arose.’ ” Nelson, 426 N.W.2d at 125 (quoting Pennsylvania Glass Sand Corp., 652 F.2d at 1173). In addition, the type of damages that the plaintiff seeks to recover is necessarily relevant to our consideration of these factors. See Flom, 569 N.W.2d at 141. Here, the defects at issue involve the quality of the home purchased by the plaintiff. Although these defects present a genuine safety hazard to persons and property, that risk has not come to pass. Thus, the injury at present, and the one for which recovery is sought, is limited to repair of the defective construction. The plaintiff is not seeking to recover damages from any “sudden or dangerous occurrence.” See Nelson, 426 N.W.2d at 125. Rather, the plaintiffs damages result from the deterioration of the house due to its poor construction.

The plaintiff argues that because the house presents a danger to its occupants, a tort recovery should be allowed. But this argument ignores the fact that our decision rests on a consideration of not only the type of risk, but also the nature of the defect, the manner in which the injury occurred, and the specific injury for which compensation is sought. Based on a weighing of all of these factors, we conclude that the plaintiffs claim is based on her unfulfilled expectations with respect to the quality of the home she purchased. Accordingly, her remedy lies in contract law, not tort law. See American Fire, 588 N.W.2d at 439 (“ ‘defects of suitability and quality are redressed through contract actions’ ” (quoting Northridge Co. v. W.R. Grace & Co., 162 Wis.2d 918, 471 N.W.2d 179, 185 (1991))).

This conclusion is consistent with our analysis of a strikingly similar issue considered in a different context in Flom v. Stahly. In Flom, the plaintiffs had purchased a home from the defendants, which had been constructed in large part by one of the defendants, a medical doctor by profession. 569 N.W.2d at 137. After buying the house, the plaintiffs discovered several defects in the construction of the home. .Id. at 138. Specifically, the walls of the house had been improperly constructed, resulting in rotting wood and moisture spots in the stucco plaster, and the heating system had been improperly installed, causing the ductwork to disintegrate. Id. The plaintiffs sued the defendants and recovered a judgment for their costs of repair under a theory of breach of express warranty. Id. at 139.

The pertinent issue on appeal was whether the plaintiffs’ recovery should be reduced by their own fault under our comparative fault statute, Iowa Code chapter 668 (1991). Id. at 140. We held that the comparative fault statute was limited to liability in tort. Id. at 141. Therefore, we examined whether the plaintiffs’ claim was contractual in nature or cognizable in tort. Id. We held that it was contractual in nature, and therefore not subject to the comparative fault statute, because “[t]he harm alleged was to the object of the contract (the house) and not to [the plaintiffs’] persons or other property.” Id.

Similarly, here, any harm caused by the defects in the house was to the house itself, and not to any persons or other property. In addition, as noted above, there has been no “sudden or accidental occurrence”; rather the harm for which the plaintiff seeks to recover “relates to [the plaintiffs] disappointed expectations due to deterioration, internal breakdown or non-accidental cause.” Nelson, 426 N.W.2d at 125. As we noted in Nelson, “ ‘When a buyer loses the benefit of his bargain because the goods are defective ... he has his contract to look to for remedies. Tort law need not, and should not, enter the picture.’ ” Id. at 124 (quoting Fireman’s Fund Am. Ins. Cos. v. BuRNs Elec. Sec. Serv. Inc., 93 Ill.App.3d 298, 48 Ill.DeC. 729, 417 N.E.2d 131, 134 (1980)). Accordingly, “ ‘the expectation-bargain protection policy of warranty law’ ” is implicated here, not “ ‘the safety-insurance policy of tort law.’ ” Id. at 124-25 (quoting Pennsylvania Glass Sand Corp., 652 F.2d at 1173).

V. Conclusion and Disposition..

Viewing the facts in a light most favorable to the plaintiff, we conclude that the evidence is not sufficient to support a recovery under the tort theories upon which she relies. Therefore, the trial court correctly granted a directed verdict for the defendants on these claims.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except LAVORATO, J., who takes no part.

      . The plaintiff’s petition also included a breach-of-implied-warranty claim, but it was dismissed on the defendants’ motion for directed verdict. The dismissal of the warranty claim is not challenged on appeal. In addition, the plaintiff claimed that the defendants had fraudulently concealed the home's structural problems from her. The trial court also dismissed this claim, and this dismissal was affirmed by the court of appeals. The plaintiff has not asked this court to review that ruling.

      . In deciding whether a plaintiff may rely on a theory of strict liability, the Superior Court of Pennsylvania has rejected the test set out in Pennsylvania Glass in favor of a stricter test that focuses solely on whether "the damage alleged is to the product itself, whether or not the defect posed a risk of other damage or injury or manifested itself in a sudden or calamitous occurrence.” REM Coal Co. v. Clark Equip. Co., 386 Pa.Super. 401, 563 A.2d 128, 132 (1989).


text:
    Debra L. PERKINS, Richard L. Wise, Linda R. Wise, Donald Haines, Paul R. Blythe, and Lori R. Blythe, Appellees, v. MADISON COUNTY LIVESTOCK & FAIR ASSOCIATION, Appellant.
    No. 98-939.
    Supreme Court of Iowa.
    July 6, 2000.

      James L. Sayre of James L. Sayre, P.C., Des Moines, and Thomas G. Crabb, Des Moines, for appellant.
    G. Stephen Walters of Jordan, Oliver & Walters, P.C., Winterset, for appellees.
   TERNUS, Justice.

The appellees, Debra Perkins, Richard Wise, Linda Wise, Donald Haines, Paul Blythe and Lori Blythe, own property near the fairgrounds in Madison County. The appellant, Madison County Livestock and Fair Association (“the Association”), owns and manages the fairgrounds property. In 1996, the Association constructed a racetrack at the fairgrounds and began holding figure-eight races there. The ap-pellees, whom we shall refer to collectively as the plaintiffs, brought this suit seeking to have the racetrack removed or to permanently enjoin figure-eight racing at the fairgrounds. The district court held that the races were not a nuisance, but concluded that the Association had violated the Madison County Zoning Ordinance by not obtaining the necessary permit and vari-anee for construction of the racetrack. Accordingly, the court denied an award of damages to the plaintiffs, but enjoined the Association from holding figure-eight races at the fairgrounds until it had obtained a special use permit and variance from the local zoning board.

The Association appealed the trial court’s issuance of an injunction. The plaintiffs filed a cross-appeal, contending that the court erred in holding that the races did not constitute a nuisance. On our de novo review, we agree with the district court that the Association violated the county zoning ordinance when it constructed the racetrack in violation of the requirements of that ordinance. We also find, however, that the figure-eight races constitute a nuisance as to plaintiff Perkins, whose home lies in closest proximity to the track. We agree with the district court that the races are not a nuisance as to the other plaintiffs.

In view of our findings and conclusions, we affirm the trial court’s judgment insofar as it enjoins the Association from holding any figure-eight races until it has obtained the necessary permits and variances and has otherwise complied with the county zoning ordinance. We also affirm the trial court’s dismissal of the nuisance claims of plaintiffs Wise, Haines, and Blythe. We reverse the trial court’s dismissal of plaintiff Perkins’ nuisance claim and remand for a determination of the appropriate remedy.

I. Scope of Review.

This case was brought and tried as an equity action. Therefore, on appeal, this court will review the case de novo. See Iowa R.App. P. 4 (“Review in equity cases shall be de novo.”); Weinhold v. Wolff, 555 N.W.2d 454, 458 (Iowa 1996). We give weight to the district court’s findings of fact, but we are not bound by these findings. See Weinhold, 555 N.W.2d at 458. “[W]e are especially deferential to the district court’s assessment of witness credibility.” Id.

II. Factual and Procedural Background.

The Madison County fairgrounds are located just outside the city limits of Winter-set. The fairgrounds were established in 1948 and occupy thirty-two acres of land. At all times, the fairgrounds have been under the control of the Madison County Livestock and Fair Association, an agricultural society formed pursuant to Iowa Code chapters 174 and 504A (1995).

A. Zoning requests and construction of track. Prior to the events giving rise to the present lawsuit, the fairgrounds had an arena that was used primarily for rodeo events. In addition, at times between 1962 and 1993, the arena had been the site for various motorized events, including tractor pulling contests, demolition derbies, an auto thrill show, pickup pulls, garden tractor pulls, three and four wheeler races, and motorcycle moto-cross races. Most of these events took place during the week of the county fair.

In 1993, the Association filed an application with the Madison County Zoning Board of Adjustment requesting a special use permit and variance to allow the Association to construct a multi-purpose track and arena on the fairgrounds property. The proposed new track and arena would expand the old arena to a quarter-mile track for stock car racing.

The portion of the fairgrounds on which the proposed racetrack was to be located was zoned agricultural, a designation that did not allow a racetrack as a permitted use. Go-cart tracks were, however, permitted as a special use in an agricultural district, subject to certain requirements. Of particular importance to this case, the ordinance required a 200-foot setback from any property line and a 600-foot setback from existing dwellings. It also required that any track have an asphalt or oiled surface. The Association requested a variance that would permit it (1) to build the track 100 feet from the back property line and 245 feet from an existing dwelling, and (2) to build a dirt track that would not be treated with oil or paved.

The zoning board voted to grant a special use permit to allow construction of the proposed racetrack, but denied a variance from the special requirements imposed by the ordinance until the Association provided additional information. The Association then filed an amended request for a special use permit and a variance, stating that it was not possible to comply with the setback requirements. The request also stated that an oiled or asphalt surface on the track would not permit the multiple-uses envisioned by the Association. The board held a public hearing at which the plaintiffs appeared and voiced their strong opposition to the proposed racetrack. The zoning board again declined to allow any variance from the requirements of the zoning ordinance. The Association then asked that its request for a special use permit and variance be “continued”; the board granted the requested continuance.

Despite its lack of success before the zoning board, the Association, claiming that it was not subject to the county zoning ordinances, proceeded to construct a new arena and track for the purpose of conducting figure-eight auto races. The new racetrack, completed in 1996, expanded the arena 91 feet further south, 105 feet further east, and 62 feet further north than the old arena. What was a flat arena became an oval track with banked sides. Spectator seating, lighting and the announcer’s booth were also updated and enlarged. The track is within 243 feet of the Perkins residence and it has never been treated with oil or paved with asphalt to reduce dust.

B. Commencement of racing. The Association began holding figure-eight racing in 1996 at the new track. Two events were held that year, both at night: one during the county fair and one in September. During 1997, seven figure-eight races were held: two during fair week and the rest between April and September. The races normally began at 6:30 p.m. and lasted until 11:00 p.m., although the racers themselves started to arrive at 3:00 p.m. and were not all gone until midnight. Attendance ranged from 750 to 1500 people. The Association does not dispute that “on a day when the races are held, the activity before, during and after the races generates noise, principally the roar of engines, some dust and exhaust fumes.”

C. This lawsuit. The plaintiffs are property owners who reside adjacent to or in relatively close proximity to the fairgrounds. They brought this action claiming that the Association violated the Madison County Zoning Ordinance in constructing the racetrack, and created a nuisance by conducting figure-eight races. The plaintiffs asked the court to issue a mandatory injunction requiring the Association to remove the racetrack, enter a permanent injunction prohibiting figure-eight races at the track, and award a judgment for damages and costs. The Association, in response, contended that the county zoning ordinance did not apply, that the Association had priority of use, that the plaintiffs had notice of the use, and that the granting of an injunction would be contrary to public policy.

The case proceeded to a bench trial, which included an extensive stipulation of facts by the parties. The trial court ruled that the county zoning ordinance applied to the Association, and that the ordinance did not allow a racetrack in an agricultural district. The court found that the Association had not obtained any special permit or variance that would allow construction of the track or the sponsoring of auto races. The court rejected the Association’s argument that the racetrack constituted the continuation of a prior nonconforming use.

The trial court also considered whether the Association’s use of the racetrack qualified as a nuisance, considering (1) priority of location, (2) the nature of the neighborhood, and (3) the wrong complained of. The court held that the first two factors weighed in favor of the plaintiffs. The court concluded, however, that the plaintiffs had failed to establish that the wrong of which they complained was unreasonable. More specifically, the trial court held that the racetrack’s interference with the plaintiffs’ use and enjoyment of their property was not sufficiently continuous to qualify as a nuisance.

The court entered its judgment, enjoining the Association from conducting any figure-eight races until it had complied with the zoning ordinance, and denying any damages to the plaintiffs. The case is now before this court on the Association’s appeal and the plaintiffs’ cross-appeal.

III. Issues on Appeal.

The Association raises two issues in its appeal: (1) does the county zoning ordinance apply to the fairgrounds; and (2) did the Association violate the zoning ordinance? The errors claimed by the plaintiffs in their cross-appeal are that (1) the trial court erred in failing to find a nuisance, (2) the trial court erred in failing to order removal of the track, or alternatively in failing to enjoin any racing at the track, and (3) the trial court erred in failing to award damages.

IV. Zoning Ordinance.

A. Does the zoning ordinance apply? The Association claims that Iowa Code section 174.3 exempts it from the county zoning ordinances. This statute provides:

During the time a fair is being held, no ordinance or resolution of any city shall in any way impair the authority of the society, but it shall have sole and exclusive control over and management of such fair.

The parties agree that the Association is a “society” as that word is defined in chapter 174. See Iowa Code § 174.1 (defining “society,” in part, as “a county or district fair or agricultural society”). The disputed question is whether the statutory exemption set forth in section 174.3 encompasses the county zoning ordinances that plaintiffs seek to apply to the Association’s racetrack and figure-eight races.

Well-settled principles of statutory construction guide our analysis. The ultimate goal of statutory construction is to give effect to the legislature’s intent. See State v. Casey’s Gen. Stores, Inc., 587 N.W.2d 599, 601 (Iowa 1998). “To ascertain legislative intent, we look to what the legislature said. We do not speculate as to the probable legislative intent apart from the words used in the statute.” State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996) (citation omitted).

When we focus on the words used by the legislature, we readily conclude that section 174.3 does not apply. The legislature provided in that statute that “no ordinance or resolution of any city ” could impair the Association’s authority over the fair. Iowa Code § 174.3 (emphasis added). The ordinance at issue here is a county zoning ordinance. The word “city” has been defined by the legislature to mean “a municipal corporation, but not including a county, township, school district, or any special-district or authority.” Id. § 362.2 (emphasis added). Thus, a county ordinance is not the same as a city ordinance and, accordingly, section 174.3 does not apply.

B. Did the Association violate the Madison County Zoning Ordinance? Having determined that the county’s zoning ordinance applies to the Association’s use of the fairgrounds, we now turn to the question of whether the Association’s construction of the racetrack violated the ordinance. It cannot be disputed that the location of the racetrack in an agricultural district less than 100 feet from the back property line and within 243 feet of the nearest dwelling violates the Madison County Zoning Ordinance. The Association argues, however, that the arena constituted a prior nonconforming use and the 1996 expansion was, therefore, also exempt from the requirements of the zoning ordinance as a prior nonconforming use. The trial court rejected this contention and so do we.

A non-conforming use is one “ ‘that existed and was lawful when the [zoning] restriction became effective and which has continued to exist since that time.’ ” Board of Supervisors v. Miller, 170 N.W.2d 358, 360 (Iowa 1969) (quoting 8A Eugene McQuillen, Municipal Corporations § 25.185, at 21 (rev.vol.1965)). The Madison County Zoning Ordinance defines a nonconforming use as:

Any building or land lawfully occupied by a use at the time of passage of this Zoning Ordinance (or any amendment thereto) which does not conform after the passage of the Zoning Ordinance (or amendment thereto) with the use regulations of the district in which it is situated.

Madison County Zoning Ordinance § 4(45).

There does not appear to be a serious dispute that the old arena constituted a permitted nonconforming use. The original rodeo arena located on the fairgrounds was built in the early 1960’s. In 1966, the county adopted a zoning ordinance that designated the area in question as agricultural. An agricultural district did not include arenas or racetracks as permitted uses. The ordinance did, however, as previously noted, permit existing nonconforming uses. Because the arena was in existence when the zoning ordinance was passed the original arena qualified as a nonconforming use. The real issue of contention is whether the current racetrack and its use is the same as the prior, permissible nonconforming use.

A property owner may lose the protection of a nonconforming-use status when the property owner exceeds the established nonconforming use. See City of Jewell Junction v. Cunningham,, 439 N.W.2d 183, 186 (Iowa 1989). Thus, “[e]nlargements or extensions of non-conforming uses are not allowed.” Stan Moore Motors, Inc. v. Polk County Bd. of Adjustment, 209 N.W.2d 50, 52 (Iowa 1973). This court has explained the rationale underlying this principle as follows:

The prohibition against expanding or enlarging a non-conforming use defends against the growth of a pre-existing aggravation. That pre-existing aggravation, the non-conforming use, survives as a matter of grace. The public is not required to expand upon that grace to its increasing aggravation.

Id. at 53. Landowners are given some latitude, however, and may change the original nonconforming use “if the changes are not substantial and do not impact adversely on the neighborhood.” City of Jewell Junction, 439 N.W.2d at 186. Thus, we must examine the nature and extent of the changes to the rodeo arena and their effect on the surrounding area.

We agree with the trial court that the enlarged racetrack and the figure-eight racing for which it is used are substantially different from the rodeo-type arena and the events held in it. Several facts support this conclusion. The current racetrack is significantly larger than and different in character and form from the rodeo arena. In addition, the evidence at trial showed that the figure-eight races have had a much different effect on the neighborhood than did the rodeos, tractor pulls and demolition derbies conducted in the old arena. The prior events did not cause the same degree of noise, dust, and fumes as have the auto races. Additionally, the figure-eight races have occurred more frequently and have lasted longer than the prior events. Moreover, because the new track is much larger than the rodeo arena, resulting in the track’s closer proximity to neighboring properties, these adverse effects have been intensified.

In summary, the rodeo arena was substantially changed when it was enlarged and reconstructed to its current figure-eight racetrack configuration. In addition, the impact of the auto races on the surrounding neighborhood has been significantly different from the uses to which the prior arena was put. We conclude, therefore, as did the trial court, that the construction of the racetrack and its use for figure-eight racing has caused the Association to lose the protection of the nonconforming use provisions of the ordinance. As a result, it was necessary for the Association to comply with the restrictions imposed on agriculturally-zoned property, which it did not do. Accordingly, we agree with the trial court’s ruling that the Association is in violation of the Madison County Zoning Ordinance.

V. Are the Figure-Eight Races a Nuisance?

A. Applicable legal principles. ' The legislature has defined a “nuisance” in Iowa Code chapter 657:

Whatever is injurious to health, indecent, or unreasonably offensive to the senses, or an obstruction to the free use of property, so as essentially to unreasonably interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof.

Iowa Code § 657.1. This statute is supplemented by common law principles governing private nuisances:

A private nuisance is “an actionable interference with a person’s interest in the private use and enjoyment of the person’s land.” Parties must use their own property in such a manner that they will not unreasonably interfere with or disturb their neighbor’s reasonable use and enjoyment of the neighbor’s property.
Whether a lawful business is a nuisance depends on the reasonableness of conducting the business in the manner, at the place, and under the circumstances in question. Thus the existence of a nuisance does not depend on the intention of the party who created it. Rather, it depends on the following three factors: priority of location, the nature of the neighborhood, and the wrong complained of.

Weinhold, 555 N.W.2d at 459 (quoting Bates v. Quality Ready-Mix Co., 261 Iowa 696, 703, 154 N.W.2d 852, 857 (1967)) (citations omitted).

In determining whether a property owner’s use of his land is a nuisance, we use an objective, normal-person standard. See id.; Patz v. Farmegg Prods., Inc., 196 N.W.2d 557, 561 (Iowa 1972). Thus, if “ ‘normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable,’ ” then the invasion is significant enough to constitute a nuisance. Weinhold, 555 N.W.2d at 459 (quoting Restatement (Second) of Torts § 821F, cmt. d, at 106 (1977)).

B. Priority of location. The Association argues that the trial court was wrong in concluding that the plaintiffs had priority of location, because the fairgrounds was established prior to any of the plaintiffs purchasing their property. This contention gives rise to the following question: Does priority of location refer only to actual presence on the property, or does it specifically refer to priority with respect to the alleged nuisance? We think this factor envisions an examination of whether the complaining party moved to the nuisance. In those circumstances, a plaintiff has little basis to complain about conditions he elected to encounter by moving to a location where the nuisance already existed. See Schlotfelt v. Vinton Farmers’ Supply Co., 252 Iowa 1102, 1109, 109 N.W.2d 695, 699 (1961) (“one has a considerably greater right to protest against the conduct of a business in a residential area where the objector has established his home with no knowledge that such an invasion is contemplated or may be attempted in the future”); Higgins v. Decorah Produce Co., 214 Iowa 276, 282, 242 N.W. 109, 112 (1932) (holding that complainant, who acquired property adjacent to a poultry plant that was subsequently enlarged to an extent that increased the offensive odors and noise, was not estopped from maintaining a nuisance action). But see 58 Am.Jur.2d Nuisances § 440, at 1013-15 (1989) (stating that even a plaintiff who purchased his property after establishment of the nuisance is not automatically barred from recovering damages, although that fact is “a circumstance of considerable weight”). Thus, we examine who had priority of location in reference to the challenged activity.

When viewed from this perspective, we think the trial court was clearly correct. Although not all of the plaintiffs had purchased their land prior to establishment of the fairgrounds in 1948, all the plaintiffs had moved onto their land prior to construction of the racetrack and commencement of the figure-eight races. It is this use that gives rise to the plaintiffs’ nuisance claim, not the operation of a fair or related fairgrounds activity. While the Association argues that its current use of the racetrack is not significantly different from its prior usage of the rodeo arena, we have already rejected this contention.

In summary, the use of the fairgrounds that is claimed to constitute a nuisance did not begin until after the plaintiffs were already on their properties. Therefore, the plaintiffs have priority of location, a fact that “weights] heavily” in favor of the plaintiffs on the nuisance issue. Weinhold, 555 N.W.2d at 460; accord Bates, 261 Iowa at 704, 154 N.W.2d at 858 (“Priority of occupation is a circumstance of considerable weight....”).

C. Nature of the neighborhood. The trial court also held that this factor— the nature of the neighborhood — supported the plaintiffs’ claim that the racetrack and figure-eight races are a nuisance. The Association challenges this finding with an argument similar to those made in connection with the nonconforming-use issue and priority-of-location issue. The Association claims that the “neighborhood” is the Madison County fairgrounds, and there were motorized racing events at the fairgrounds for many years prior to construction of the new racetrack.

The fairgrounds and the area surrounding it are zoned residential and agricultural. There was no evidence that business, commercial, or industrial uses are present in this general locale. The record does show that many residences are located in close proximity to the fairgrounds. It is also noteworthy that, with the exception of go-cart tracks, no form of racing is authorized by the local zoning ordinance in either residential or agricultural districts.

We think that the plaintiffs could legitimately expect that their residences would be subject to the normal uses permitted in residential and agricultural areas, but not to uses that are not authorized in those districts, even by special permit. Thus, the character of the neighborhood is not one in which figure-eight racetracks would typically be found. Consequently, this factor weighs in favor of the plaintiffs.

D. Significance of interference. In reference to this factor, the trial court noted that, although the races cause annoyance and inconvenience to the plaintiffs, the races only occur seven times a year. Under these circumstances, the court found that “the [pjlaintiffs [had] not been prevented from normal use and enjoyment of their property for any significant percentage of the time.” The court concluded, therefore, that “the seven time invasion” did not rise to the level of a nuisance. Upon our de novo review of the record, we agree with the trial court’s findings and conclusions as they relate to the Wise, Haines, and Blythe plaintiffs. We disagree, however, with the court’s conclusion that the races are not a nuisance as to plaintiff Perkins.

It is helpful at this stage of our analysis to briefly refer to the factual claims of each plaintiff with respect to the interference and annoyance caused to them by the figure-eight races. We examine each plaintiffs claim independently of the other plaintiffs’ claims so that a plaintiffs claim will succeed or fail on the basis of that plaintiffs particular circumstances.

1. Richard and Linda Wise. The Wises’ land adjoins the fairgrounds on the northeast border of the fairgrounds property. (The racetrack is located on the southwest corner of the fairgrounds.) The Wises’ home is approximately 975 feet from the track.

The Wises testified that during the races they cannot use their backyard or the family room (which is in the back of their house closest to the racetrack) due to the noise coming from the track. Fumes from the races also find their way into the house and stay for two to three hours. The windows in an old building located on their property rattle from the noise. The Wises also complain of the traffic going by on Summit Street in front of their property as vehicles enter and exit the fairgrounds. (The fairgrounds main, and generally only, entrance and exit are located on Summit Street.)

In considering this evidence, we attach little significance to the windows rattling in the outbuilding because that disturbance does not appreciably interfere with the Wises’ use and enjoyment of their property. We also give little weight to the annoyance caused by the traffic on the adjoining street. Heavy traffic is to be expected when an event is held at the fairgrounds, and there is nothing significantly different, in our view, of the traffic during the races from the traffic present during the fair. As for the Wises’ remaining complaints, we think that the short-term inconvenience experienced by the Wises caused by the noise and fumes from the races is not “definitely offensive, seriously annoying, or intolerable,” when it occurs only seven times a year. Accordingly, we agree with the trial court that they have not established that the racetrack and races are a nuisance with respect to the use and enjoyment of their property.

2. Donald Haines. The Haines property is adjacent to the Wise property. Haines’ home is 1050 feet from the track. Haines testified that the noise from the track rattles the windows in his house, shifts the ceiling tiles, and requires that the television volume be turned up a “very little.” Dust from the track accumulates on the deck furniture and on one occasion Haines smelled fumes from the raceears. We find that these temporary disturbances are not significant enough to constitute a nuisance, given the fact that they occur only seven times a year.

8. Paul and Lori Blythe. The Blythes live across Summit Street from the fairgrounds, near the northwest corner of the Association’s property. Their home is approximately 1150 feet from the edge of the track, the longest distance of any of the plaintiffs’ homes from the racetrack. The Blythes testified that they cannot carry on a normal conversation in their home during the races and must turn up the volume on the television. Their young children cannot play outside during the races and cannot get to sleep at their normal bedtime. Because the Blythes’ home is not air conditioned, they have dust and fumes inside their house. Many of their complaints center on the disruption caused by the noise and lights from traffic leaving the races.

As noted previously, we give little weight to any interference caused by the traffic on Summit Street, but rather focus on the disturbance caused by the races themselves. Although the Blythes experience more annoyance in their home — due to keeping their windows open during the races for cooling and ventilation — we do not think their situation is appreciably different from the Wises’ and Haines’ positions. We agree with the trial court that, although the races cause personal discomfort, the short and temporary annoyances experienced by the Blythes during the races only seven times a year are not significant enough to constitute a nuisance.

4. . Debra Perkins. Debra Perkins’ property adjoins the fairgrounds property on the south. Her home is a mere 243 feet from the track and the edge of her yard is only 77 feet from the track. The pit area of the track is adjacent to her property.

Unlike the other plaintiffs whose complaints are primarily caused by the noise and fumes generated during the races, Perkins and her children experience annoyance and interference from the time the racers begin to arrive at 3:00 p.m. until the last racer leaves about an hour after the end of the last race, which can be as late as midnight. Perkins testified the pit area, located on the property line, is “extremely noisy.” Lights, noise, dust, smoke and exhaust fumes emanate from the track and pit area directly onto Perkins’ property, including the house. During the races clods of dirt are catapulted from the track onto her property, although the Association has taken steps to minimize this occurrence by erecting a screen at the track. Even between the individual races, there is noise coming from the pit area as racers rev up their motors and prepare for the next race, making the disturbance on the Perkins property constant.

The noise inside the house is so loud that the Perkins family has to turn the volume up considerably on the television to watch a program and then they cannot hear the phone ring. They cannot talk in a normal tone of voice and find themselves literally yelling to communicate. Fumes enter the house and are irritating to breathe and generally unpleasant. Perkins’ children cannot play in the yard and cannot go to sleep at their regular bedtime.

The trial court concluded that these circumstances did not constitute a nuisance because they only occurred seven times a year. While it is certainly important to consider the frequency and duration of the harmful conditions when determining whether they are “definitely offensive,” “seriously annoying,” or “intolerable,” these factors are not dispositive:

The fact that an injury from an alleged nuisance is only occasional, or that the annoyance exists during part of the time only, does not prevent the act or thing causing it from being a nuisance, although such fact is to be considered with all the evidence in the ease.

58 Am.Jur.2d Nuisances § 96, at 746 (1989).

Here, the interference caused by the figure-eight races with Perkins’ use and enjoyment of her property and home is intense and severe. The races are almost literally located in her backyard. We think a normal person would find the situation to be definitely offensive at the least. Under these circumstances, we find that the races are a nuisance, despite the fact that they take place only seven times a year. Accordingly, we reverse the district court’s adverse ruling on plaintiff Perkins’ nuisance claim.

VI. Summary and Disposition.

We agree with the district court’s determination that the Association violated the Madison County Zoning Ordinance by constructing the racetrack and holding figure-eight races. Therefore, we affirm the court’s issuance of an injunction, enjoining the Association from conducting any further races until it has completely complied with the zoning ordinance.

We also agree with the district court’s ruling that plaintiffs Wise, Haines, and Blythe failed to establish that the races unreasonably interfered with the use and enjoyment of their property so as to constitute a nuisance. Accordingly, we affirm the district court’s dismissal of their claims.

We disagree with the district court’s finding that plaintiff Perkins failed to prove that the races were a nuisance, and hold that she has established that the figure-eight races unreasonably interfered with the use and enjoyment of her property. Therefore, we reverse the court’s dismissal of her nuisance claim and remand this case to the district court for a determination, on the record already made, of the proper remedy to which Perkins is entitled.

AFFIRMED ON APPEAL; AFFIRMED ON CROSS-APPEAL OF PLAINTIFFS WISE, HAINES, AND BLYTHE; REVERSED ON CROSS-APPEAL OF PLAINTIFF PERKINS AND REMANDED FOR FURTHER PROCEEDINGS.

All justices concur except LAVO RATO and LARSON, JJ., who take no part.

      . An agricultural society is incorporated "for the purpose of holding [a] fair, and ... owns or leases at least ten acres of ground and owns buildings and improvements situated on said ground....” Iowa Code § 174.1(3). The society, in addition to being authorized to hold a fair, may also exercise any powers enumerated in its articles of incorporation both before and after holding the fair. See id. § 174.2.

      . We note that the legislature' amended section 174.3 in 1999 to make it applicable to county ordinances and resolutions as well as city ordinances and resolutions. See 1999 Iowa Acts ch. 204, § 29 (codified at Iowa Code § 174.3 (Supp.1999)).