Opinion
8:00 CV 548
September 14, 2001
MEMORANDUM AND ORDER
This mailer is before the court on the defendants' motion to dismiss, Filing No. 12. This is an action for deprivation of constitutional rights under color of state law pursuant to 42 U.S.C. § 1983. Jurisdiction is premised on 28 U.S.C. § 1331 (federal question jurisdiction). In its amended complaint, Filing No. 6 ("Amended Complaint"), Furnas County Farms ("Furnas") alleges that it has been deprived of procedural and substantive due process rights and rights to equal protection by the defendants' actions with respect to adoption of zoning regulations that prevent it from constructing a "confined animal feeding operation for the purpose of raising and selling hogs" ("the Farm").
Also pending is a motion, Filing No. 32, to strike an amicus brief. Because consideration of the brief would not have affected the decision here, the court denies the motion as moot.
Claims 1 through 5 of the amended complaint challenged an ordinance which has since been repealed. The parties have stipulated to dismissal of those claims. Filing No. 15. The stipulation mooted the defendants' earlier motion for judgment on those claims. Filing No. 13. The defendants' motion is directed to the remaining claims, which challenge zoning regulations.
I. Introduction
Furnas alleges that it has an equitable interest in 164 acres of land in Hayes County, Nebraska, on which it is constructing its facility. The Farm is designed to utilize anaerobic lagoons to treat wet manure (effluent) produced by the hogs. Furnas further alleges that it has a protected property interest in ownership and operation of the Farm and a legitimate expectation that the Farm could be completed and operated for financial return and that its property interest "is supported by the Nebraska Right to Farm Act, Neb. Rev. Stat. § 2-4401, et seq." Amended Complaint at 3, ¶ 12. Furnas further alleges that Hayes County has enacted certain zoning regulations that regulate land uses defined as "confined animal feeding use, which will be applied to hogs, and "intensive animal feeding use," which will be applied to cattle, and "waste handling facilities." See Id. at 4-6, ¶¶ 22-28. Furnas asserts that its facility will "most likely" be classified as a "confined animal feeding use" and a "waste handling facility," subject to strict setback requirements. Id. at 7, ¶¶ 30-34. The zoning regulations prohibit uncovered anaerobic lagoons for treating liquid effluent and impose an outright ban on land application of treated effluent. Id., ¶¶ 35, 36.Furnas further asserts that there was no competent scientific evidence adduced at the hearings on the regulations to justify the distinctions. Moreover, it asserts that a member of the Planning Commission asked at the hearing how many people who did not speak English would be employed at the Farm. Id. at 7-8, ¶¶ 37, 38, 41.
In its sixth claim for relief, Furnas asserts that the zoning regulations are "not supported by a rational basis and are unduly burdensome," "are not rationally related to . . . any legitimate governmental purpose" and were enacted for the purpose of driving operations such as those of Furnas out of business. It asserts that enforcement of the regulations against the Farm "would deprive [it] of its fundamental right to substantive due process" under the Fourteenth Amendment. Id. at 13, ¶¶ 72-74.
In its seventh claim for relief, it asserts that the definition of "odor" in the regulations is impermissibly vague, fails to give it notice of the requirements of the law, and cannot be applied consistently, which, it contends, deprives it of it "fundamental right to procedural due process" under the Fourteenth Amendment. Id. at 13, ¶ 77.
In its eighth claim for relief, Furnas contends that the distinctions in the regulations between hog farming and cattle farming are not rationally related to a legitimate governmental purpose and deprive it of the equal protection of the laws in violation of the Equal Protection Clause of the Fourteenth Amendment. Id. at 14, ¶¶ 80, 81.
In its ninth claim, Furnas asserts the purpose of the zoning regulations is to discriminate against equal opportunity employers, people who do not speak English and Hispanics, and should thus be subject to strict scrutiny. It alleges that the regulations are not narrowly tailored to achieve a legitimate governmental purpose. Id. at 14-15, ¶¶ 84-87.
In its tenth and eleventh claims, Furnas asserts claims under state law. Id. at 15-16, ¶¶ 90-93, 95, 96.
The defendants move to dismiss the amended complaint for failure to state a claim on which relief can be granted, and also assert that this court has no jurisdiction over the state law claims.
II.Legal Standard
In considering a motion to dismiss a complaint under Rule 12(b)(6), the court must assume all the facts alleged in the complaint are true, and must liberally construe the complaint in the light most favorable to the plaintiff. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). A Rule 12(b)(6) motion to dismiss a complaint should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle him or her to relief Id. Thus, as a practical matter, a dismissal under Rule 12(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint some insuperable bar to relief Id.
III. Discussion
A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Carpenter Outdoor Advertising v. City of Fenton, 251 F.3d 686, 689-90 (8th Cir. 2001). Property interests are created by existing rules or understandings that stem from an independent source, such as state law. Stauch v. City of Columbia Heights, 212 F.3d 425, 429 (8th Cir. 2000). To establish a property interest, a plaintiff must show more than a unilateral expectation of it; he or she must show a legitimate claim of entitlement. Id.
Furnas asserts that it "has a protected interest in its ownership and operation of the Farm and had a legitimate expectation that the Farm could be completed and operated for financial return." Amended Complaint at 3, ¶¶ 10. Furnas bases its alleged legitimate expectation that the Farm could be completed on the Nebraska Right to Farm Act. See Neb. Rev. Stat. Ann. §§ 2-4401 — 2-4402 (Michie 2001). That statute provides that a farm or farm operation cannot be a public or private nuisance so long as it "existed before a change in the land use or occupancy of land in and about the locality of such farm or farm operation and before such change in land use or occupancy of land the farm or farm operation would not have been a nuisance." Neb. Rev. Stat. Ann. § 2-4403.
The statute clearly does not apply to Furnas. There is no allegation in Furnas's complaint that "the farm or farm operation existed before a change in the land use." To the contrary, Furnas alleges that it is presently constructing the farm operation. Moreover, the statute merely insulates a landowner from liability for nuisance; it does not create substantive rights.
Furnas has not alleged any other basis for its "legitimate expectation" that it could develop the property in this manner. Furnas has alleged nothing more than that it owns property and seeks to develop it as a hog facility. Nebraska statutes "grant extensive powers to counties to regulate their lands "as may be necessary or expedient to promote the public health and welfare, including regulations . . . for the construction, location, and keeping in order of all slaughterhouses, stockyards, warehouses, sheds, stables, barns, commercial feedlots, dairies, junk and salvage yards, or other places where offensive matter is kept or is likely to accumulate." Enterprise Partners v. County of Perkins, 619 N.W.2d 464, 468 (Neb. 2000) (quoting Neb. Rev. Stat. § 23-174.10). In light of that statutory restriction on use of property, the court finds Furnas's interest "amounts to nothing more than "an abstract need or desire' which is not sufficient to establish a protected property interest." Bituminous Materials, Inc. v. Rice County, 126 F.3d 1068, 1070 (8th Cir. 1997). Accordingly, the court finds that the complaint does not allege a protected property interest arising from state law, and thus Furnas's due process claim fails. See Barra v. Board of Regents of the Univ. of Neb., 79 F.3d 717, 720 (8th Cir 1996) (holding that for property interest to arise, a plaintiff must have more than "mere subjective expectancy").
Moreover, even if Furnas had properly asserted a protected property interest, the allegations set forth in the complaint do not amount to the sort of "truly irrational" level of conduct necessary to support a substantive due process claim. See Iowa Coal Mining Co. v. Monroe County, 2001 WL 822504 at 7 (8th Cir July 23, 2001). In a zoning or land use context, Furnas must allege something more than that the government decision was arbitrary, capricious, or in violation of state law; substantive due process claims should be limited to "truly irrational" government actions. WAX Tech. v. Gasconade County, 105 F.3d 1195, 1200 (8th Cir. 1997) (using as an example of a "truly irrational" regulation one that applied only to people whose names began with letters in the first half of the alphabet). The court's inquiry is limited to whether a conceivable relationship exists between the challenged regulation and legitimate governmental ends. *Id. at 1201. The court finds as a matter of law that it does. Thus, Furnas fails to state a claim for violation of its substantive due process rights. See id.; Chesterfield Dev. Corp. v City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir. 1992) (expressing a restrictive view of when land use planning decisions can violate substantive due process rights); see also Bituminous Materials, Inc. v. Rice County, 126 F.3d 1068, 1070 ("even allegations of bad faith enforcement of an invalid zoning ordinance do not, without more, state a substantive due process claim."). A violation of procedural due process similarly requires the assertion of a protected interest and must similarly fail. Board of Regents v. Roth, 408 U.S. 564, 569 (1972); Stanch, 212 F.3d at 429 ("possession of a protected life, liberty, or property interest is a condition precedent to invoking the government's obligation to provide due process of law."). Furnas does not challenge the procedures by which the zoning regulation was either enacted or applied; rather, it bases its procedural due process claim on the assertion that the definition of "odor" is impermissibly vague and does not provide adequate notice of the requirements of the law. Under the void-for-vagueness doctrine embodied in the Fifth and Fourteenth Amendments, a vague regulation violates the Constitution if it fails to define the offense with sufficient definiteness that ordinary people can understand prohibited conduct or fails to establish standards to permit police to enforce the law in a nonarbitrary, nondiscriminatory manner. Woodis v. Westark Comm. Coll, 160 F.3d 435, 438 (8th Cir. 1998). An enactment imposing criminal sanctions or implicating constitutionally protected rights demands more definiteness than one which regulates the economic behavior of businesses. Id. Where an enactment does not reach constitutionally protected conduct, a plaintiff may succeed in a vagueness challenge "only if the enactment is impermissibly vague in all of its applications." Id. To withstand such a challenge, an enactment must define the proscribed behavior with sufficient particularity to provide a person of ordinary intelligence with reasonable notice of prohibited conduct and to encourage non-arbitrary enforcement of the provision. Id. at 439. The court finds that the language at issue meets those standards. See, e.g., Woodis, 160 F.3d at 439 (finding the phrases "good taste," "appropriate manner," and "good citizenship" in a school regulation were not impermissibly vague).
The challenged language is not a definition of "odor," but rather sets out a method by which an odor will be found.
In its eighth claim for relief Furnas premises its equal protection claim on differing treatment of cattle operations and hog operations. The Equal Protection Clause prohibits government officials from selectively applying the law in a discriminatory way. Brandt v. Davis, 191 F.3d 887, 893 (8th Cir. 1999). An unlawful administration by state officers of a state statute that is fair on its face, resulting in unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. Brandt, 191 F.3d at 893. A plaintiff must allege unlawful, purposeful discrimination. Id. To establish the necessary purposeful discrimination, the plaintiff "must allege that similarly situated people have been treated differently." Id. Although Furnas alleges that the zoning regulations treat cattle operations differently than hog operations, it does not allege that these two entities are similarly situated. Indeed, the amended complaint shows on its face that they are not: an "intensive animal feeding use" (cattle) is qualitatively different from a "confined animal feeding use" (hogs), both in construction (one is covered, one is not) and in their methods of waste disposal. The two differing uses necessarily involve different public health, welfare and safety concerns. See, e.g., Bituminous Materials, Inc., 126 F.3d at 1071-72 (finding no equal protection claim involving differing treatment of asphalt plants and gravel pits). Furnas has not alleged the cattle and hog operations are similarly situated in these respects.
Moreover, plaintiff does not allege that the hog/cattle distinctions involve either interference with a fundamental right or a suspect classification that would require strict scrutiny. Thus, the court applies a rational relationship test. See Weider v. Parched, 137 F.3d 1047, 1051 (8th Cir. 1998). To establish a violation of equal protection under that test, a plaintiff must show that the zoning regulations are not rationally related to any conceivable legitimate legislative purpose. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). The regulation is afforded a strong presumption of validity and must be upheld as long as "there is a rational relationship between the disparity of treatment and some legitimate government purpose." Heller v. Doe, 509 U.S. 312, 320 (1993). The complaint shows a rational basis for the zoning regulations; the ordinance and zoning regulations were passed after findings that large-scale livestock confinement facilities "p?esent a threat of contamination and destruction" related to "livestock waste," and relied on "credible, widespread and troublesome reports of insect infestations . . . as a result of the use of lagoons to store and treat animal waste." Amended Complaint, Ex. A. Because the amended complaint reveals a rational basis for passing the challenged zoning regulations, the court finds Furnas's eighth claim for relief fails to state a claim. See Scoff v. City of Sioux City, 736 F.2d 1207, 1216 (8th Cir. 1984).
In its ninth claim for relief, Furnas alleges a discriminatory animus toward Hispanics and those who employ them. This allegation is sufficient to withstand defendant's motion for summary judgment. Under the Equal Protection Clause, governmental action directed against a racially defined class is subject to strict scrutiny to prevent invidious discrimination. Britton v. Rogers, 631 F.2d 572, 576 (8th Cir. 1980). Under strict scrutiny, the governmental action must fall absent a compelling state interest. Id. Where a plaintiff "alleges that [it] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment, " it has alleged a viable equal protection claim. Village of Willowbrook v. Olech, 120 S.Ct. 1073, 1074 (2000) (per curiam).
Because the court has jurisdiction over Furnas's race-based equal protection claim, it can exercise supplemental jurisdiction over Furnas's state-law claims. 28 U.S.C. § 1367(c). The defendants' motion to dismiss those claims is premised upon dismissal of the federal claims and will be denied.
Accordingly,
IT IS HEREBY ORDERED:
1. The defendants' motion to dismiss, Filing No. 12, is granted in part and denied in part;
2. The plaintiffs sixth, seventh, and eighth claims for relief are hereby dismissed;
3. The defendants' motion to dismiss is denied with respect to plaintiffs ninth, tenth, and eleventh claims for relief;
4. The defendants' motion to strike the amicus brief, Filing No. 32, is denied as moot, as is the defendants' motion for summary judgment, Filing No. 13.