Opinion
8:00CV548
August 5, 2002
MEMORANDUM AND ORDER
This matter is before the court on the defendants' motion to dismiss, Filing No. 57, plaintiff's Second Amended Complaint, Filing No. 54. This is an action for deprivation of constitutional rights under color of state law pursuant to 42 U.S.C. § 1983. In its Second Amended Complaint, Filing No. 54 ("Second Amended Complaint"), plaintiff 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"). This court earlier granted a motion to dismiss the substantive and procedural due process claims in plaintiff's First Amended Complaint. Filing No. 47. Pursuant to stipulation by the parties, plaintiff was allowed to file a second amended complaint. Filing No. 53. Defendants reassert the arguments they made in their first motion to dismiss. Thus, the issue for the court is whether the allegations in the second amended complaint cure the deficiencies that were present in the amended complaint.
Also pending is plaintiff's motion to strike a citation of additional authority to the court (Filing No. 66). That motion will be denied as moot. Although defendants did not obtain leave to submit the citation, the court is authorized, if not obliged, to consider relevant caselaw. Moreover, plaintiff has responded to the citation in its motion to strike. In any event, the court has considered the case, Premium Farms v. County of Holt, 640 N.W.2d 633 (Neb. 2002), and finds it does not affect the discussion of whether the Nebraska Department of Environmental Quality has exclusive jurisdiction to regulate regulations covering waste handling facilities. See discussion infra at 4-5.
I. BACKGROUND
In the Second Amended Complaint, plaintiff has added allegations that its investments, including acquisition, legal, planning and engineering costs, and substantial construction costs prior to enactment of the zoning regulations by Hayes County, create a vested property right to operate the farm under Nebraska state law. Second Amended Complaint at ¶¶ 9-10. It further alleges that it has obtained a permit from the Nebraska Department of Environmental Quality ("NDEQ") to construct the facility and had a legitimate expectation that the farm could be completed and operated for financial return in accordance with the terms of the permit. Id. at ¶¶ 11-20. Plaintiff also alleges that the zoning regulations at issue, including an outright ban on uncovered anaerobic lagoons, are "unscientific, irrational, and would not further any actual or theoretical legitimate purpose for their enactment." Id. at ¶ 34.
In its first claim, characterized as a facial substantive due process challenge to the zoning regulation, Furnas alleges that the zoning regulations are not rationally related to any legitimate governmental purpose and that they are arbitrary and capricious. In its second claim, a substantive due process challenge to the regulation as applied, Furnas alleges that the purpose of the regulation is "specifically to drive the Farm out of business in furtherance of Defendants' own personal motivations, self-interest, and malice towards the Plaintiff, and for reasons unrelated to zoning, land use planning, or any legitimate purpose." Id. at ¶ 66. In its third claim, Furnas raises a procedural due process challenge alleging that the definition of "odor" in the regulations is impermissibly vague. Id. at ¶ 71. Furnas also reasserts its equal protection claim based on race in its fourth claim and its state law claims in its fifth and sixth claims. Id. at ¶¶ 74-87. 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. DISCUSSION
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.
A. Substantive Due Process
As noted in the court's earlier order, to assert a substantive due process violation, a plaintiff must establish a constitutionally protected property interest and must allege that state officials used their power in such an arbitrary and oppressive way that it shocks the conscience. Entergy, Arkansas, Inc. v. Nebraska, 241 F.3d 979, 991 (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's allegation that the permit issued by the NDEQ gives it a "legitimate expectation" that it could develop the property as a hog confinement facility fails because the issuance of such a permit does not negate the duty to comply with local governmental zoning regulations. Omaha Fish Wildlife v. Community Refuse, 302 N.W.2d 379, 381 (Neb. 1981) (Nebraska's Environmental Protection Act held not to preclude local zoning regulation of solid waste disposal facilities). The NDEQ, whose powers are derived from the Environmental Protection Act, Neb. Rev. Stat. §§ 81-1501, et seq., is constrained by the power of local entities to enact regulations to promote public health and welfare. See Neb. Rev. Stat. § 23-174.10 ("[i]n any county which has adopted county zoning regulations, the county board, by resolution, may make regulations as may be necessary or expedient to promote the public health, safety, and welfare"); Neb. Rev. Stat. § 81-1529 ("[n]othing in the Environmental Protection Act shall be construed to: . . . (3) supercede or limit the applicability of any law or ordinance relating to sanitation, industrial health, or safety"); Neb. Rev. Stat. § 81-1516 ("[n]othing in the [Environmental Protection Act or the Integrated Solid Waste Management Act] and no act of the director shall usurp the legal right of a local governing body to develop and enforce local ordinances, codes, or rules and regulations on solid waste disposal equal to or more stringent than the provisions of the acts as necessary to protect the public health and welfare and the environment, and the provisions of the acts shall not relieve the applicant from obtaining a permit from a local governing body when required or relieve the person owning or operating a disposal area from responsibility for securing proper zoning permits or complying with all applicable local ordinances, codes, or rules and regulations not in conflict with the provisions of the acts") (emphasis added); Neb. Rev. Stat. § 54-2404.01 ("[n]othing in [Livestock Waste Management Act permit provisions] shall be construed to change the zoning authority of a county. . . ."). Accordingly, because plaintiff has not alleged a legitimate entitlement to develop its property as a hog confinement facility, plaintiff has not alleged a protected property interest arising from state law, and thus its substantive 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 Second Amended Complaint still 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, 257 F.3d 846, 853 (8th Cir. 2001). In a zoning or land use context, mere allegations that a government decision was arbitrary, capricious, or in violation of state law are not sufficient. WAX Tech. v. Gasconade County, 105 F.3d 1195, 1200 (8th Cir. 1997). The allegations in the Second Amended Complaint do not approach this level; controlling land use in the manner alleged in the Second Amended Complaint is rationally related to the legitimate end of protection of health and welfare. See, e.g., Bituminous Materials, Inc. v. Rice County, 126 F.3d 1068, 1070 (8th Cir. 1997) (including road damage, traffic, safety, and noise as examples of legitimate concerns). Moreover, Furnas's allegations of personal animus against it are far too insubstantial to support a substantive due process claim. See, e.g., Bituminous Materials v. Rice Co., 126 F.3d 1068, 1071 (8th Cir. 1997) (noting that a substantive due process claimant must allege more than that a land use planning decision-maker does not like the plaintiff). Thus, Furnas fails to state a claim for violation of its substantive due process rights. 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).
B. Procedural Due Process
For the reasons set forth in the court's earlier order granting defendants' motion to dismiss, 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). Also, the processes outlined in Furnas's complaint would satisfy the requirements of procedural due process. Sykes v. City of Gentry, 114 F.3d 829, 830 (8th Cir. 1997) (noting "the legislative process itself provides citizens with the process they are due").
C. Equal Protection
In its fourth claim for relief, Furnas again alleges that defendants harbor a discriminatory animus toward Hispanics and those who employ them. Those allegations are sufficient to withstand dismissal. See Memorandum and Order, Filing No. 47 at 9.
D. State Law Claims
Defendants challenge plaintiff's state law claims only on jurisdictional grounds. 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). Defendants' motion to dismiss plaintiff's fifth and sixth claims will accordingly be denied.
Accordingly,
IT IS HEREBY ORDERED:
1. The defendants' motion to dismiss, Filing No. 57, is granted in part and denied in part;
2. The plaintiff's first, second, and third claims for relief are hereby dismissed;
3. The defendants' motion to dismiss is denied with respect to plaintiff's fourth, fifth, and sixth claims for relief;
4. The defendants' motion to strike, Filing No. 66, is denied as moot.