Nygard v. City of Orono
| Decision Date | 11 August 2021 |
| Docket Number | 21-CV-884 (NEB/JFD) |
| Parties | JAY NYGARD and KENDALL NYGARD, Plaintiffs, v. CITY OF ORONO, Defendant. |
| Court | U.S. District Court — District of Minnesota |
ORDER ON MOTION TO DISMISS
Without first obtaining a permit, as the City of Orono requires, Jay Nygard replaced the driveway of an investment property that he and his wife, Kendall Nygard, own. After Nygard[1] attempted, but failed, to obtain a permit after the fact, the City prosecuted the Nygards for completing work without a permit. The judge dismissed Kendall Nygard from the case and found Nygard not guilty. The Nygards then brought this suit, challenging both the ordinance under which the City charged them and also the prosecution itself. The City moved to dismiss. For the reasons that follow, the Court grants the motion.
Nygard wanted to replace his driveway, and so he did. But he did not first obtain a permit from the City of Orono, where his land is located. In Orono, as in most cities, it is unlawful to complete work without obtaining a permit if the city ordinances require one. Orono, Minn., Code § 86-37(1). Orono city ordinance section 86-66 requires a permit for constructing a building or structure, altering land, or installing hardcover.[2] Id. § 8666. Under Section 86-66, a landowner must obtain a building permit to “erect, construct, enlarge, alter, repair, move improve, remove, convert, or demolish any building or structure.” Id. § 86-66(a). Even if a building permit is not required, a zoning permit may be. Under Section 86-66(b), a landowner must obtain a zoning permit before “conducting any land alteration or hardcover installations on a property.” Id. § 86-66(b). If a landowner completes work for which a permit is required without obtaining one, he or she must obtain a permit or remedy the violation within thirty days after receiving notice from the City. Id. § 86-36. Failure to follow these rules results not merely in a fine: it is a misdemeanor criminal offense. Id. § 86-42.
The Nygards jointly own an investment property in Orono. When Nygard determined he wanted to replace the driveway, he researched whether he needed a permit to do so and concluded that he did not. (Id. ¶¶ 6, 8-9.) Soon after, Nygard removed the driveway and was ready to begin pouring concrete for the new one. (Id. ¶¶ 10, 13.) Before he started, however, a City inspector arrived at the property and told Nygard that he needed a permit. (Id. ¶ 13.) Nygard told the inspector that he would apply for one and the inspector left without issuing a stop work order. (Id. ¶¶ 16, 18.)
The next day, after completing the driveway work, Nygard applied for a permit. (Id. ¶ 22.) Nygard's application included an aerial photo of the property. (Id. ¶ 24.) On it, he labeled the portion of hardcover that he had removed, outlined the new driveway, and referenced an area unrelated to this dispute but relevant to another: footings for a wind turbine. (Id. ¶¶ 24, 26; see also ECF No. 13-3.) Nygard alleges that he referenced the wind turbine footing for informational purposes and to address the City's possible concerns about the property's total hardcover area.[3] (Compl. ¶ 24.)
The City did not approve the permit. Instead, it sent Nygard a “Builder Acknowledgment Form” (“BAF”) to sign before the permit could be approved (Id. ¶ 28; ECF No. 1-1 ( ), Ex. 1.) The BAF listed several “conditions, ” including that the new driveway “should be” at least one and five-eighths inches above street level, that the former driveway's nonconforming width could remain, that the wind turbine footing was not permitted, and that the hardcover calculations (which the City did not request) should include a sidewalk from the driveway to the front door. Orono also returned Nygard's aerial photo, on which it crossed out the wind turbine footing and wrote, “Turbine Footing not permitted.” (ECF No. 13-4.)
Nygard disputed several of these conditions, as well as the notion that he needed a permit at all. Nygard crossed off the conditions that he disagreed with, initialed the remaining conditions and comments, and sent the BAF back to the City. The City responded, explaining the conditions to Nygard and telling him that it would issue a permit once he had accepted all the conditions in the BAF and the annotated aerial photo.
Nygard continued to contest the permit conditions. (Compl. ¶ 57; see also Compl. Exs. 5-7.) The City reaffirmed that it would only issue the permit if Nygard agreed to sign off on the conditions in the BAF. There is no allegation that the “conditions” required Nygard to complete any additional work on the driveway. To the contrary, the City told Nygard that it would issue the permit that same day if Nygard acknowledged the conditions and paid the fee. (Compl. Ex. 8.) The City threatened “possible legal action” if he did not comply. (Id.) Nygard continued to refuse to acknowledge the conditions, and the City continued to refuse to issue the permit. (Compl. ¶ 62.)
Finally, about eight weeks after Nygard poured the new driveway, a City official told the City prosecutor to charge both Nygards with violating Section 86-66(b) for having completed work without a permit. The City charged the Nygards in state court with misdemeanor violations. At trial, the judge dismissed Kendall Nygard, finding that she could not be liable for violating Section 86-66(b) simply by being an owner of the property, and she was not otherwise involved in the installation of the new driveway. (Compl. ¶¶ 108-09.) The judge found Nygard not guilty, determining that the City had no basis to require a permit. (Id. ¶¶ 110-11.)
The Nygards then brought this suit against the City in federal court. The Nygards allege that Section 86-66 is void for vagueness, that the City retaliated against them for First Amendment activities, and that the City abused process and maliciously prosecuted them. (Id. ¶¶ 152-250.) The Nygards also seek declaratory and injunctive relief requiring the City to issue a permit for the replacement driveway. (Id. ¶¶ 274-75; id. at 41.)
Rule 12(b)(6) of the Federal Rules of Civil Procedure requires the Court to dismiss a complaint if it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v Twombly, 550 U.S. 544, 570 (2007). When reviewing a Rule 12(b)(6) motion, a court must “tak[e] all facts alleged in the complaint as true, and mak[e] reasonable inferences in favor of the nonmoving party.” Smithrud v. City of St. Paul, 746 F.3d 391, 397 (8th Cir. 2014). Although the factual allegations need not be detailed, they “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The facial plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Thus, where a complaint alleges “facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief'” and the Court must dismiss it. Id. (quoting Twombly, 550 U.S. at 557).
The Nygards bring two separate void for vagueness claims-one for each prong of the void for vagueness analysis. (Compl. ¶¶ 152-62 (Counts I and II).) A law is unconstitutionally vague if it (1) “fails to give ordinary people fair notice of the conduct it punishes” or (2) is “so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015) (citation omitted). A law need not define prohibited conduct with “mathematical certainty, ” nor must it provide “perfect clarity and precise guidance.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972); Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). A void for vagueness claim can be facial or as-applied. United States v. Stupka, 418 F.Supp.3d 402, 405-06 (N.D. Iowa 2019); see Gallagher v. Magner, 619 F.3d 823, 840-41 (8th Cir. 2010) (). The Nygards appear to be bringing both forms of challenges, and so the Court will analyze each.
The Nygards' facial challenge is not brought on First Amendment grounds, making it generally disfavored under well-established law. United States v. Turner, 842 F.3d 602, 606 n.1 (8th Cir. 2016). Understanding this hurdle, the Nygards attempt to fit the facial challenge under the plurality opinion of City of Chicago v. Morales, 527 U.S. 41 (1999). In Morales, the Supreme Court allowed a facial void for vagueness challenge to a gang loitering ordinance when (1) the ordinance had no mens rea requirement; (2) it infringed on constitutionally protected rights; and (3) vagueness “permeated the text” of the law. Id. at 55.
But even post-Morales, the Eighth Circuit has been reluctant to allow facial vagueness challenges that do not implicate First Amendment rights. It has repeatedly reaffirmed that non-First-Amendment void for vagueness challenges should be analyzed as applied to the plaintiff's conduct. E.g., Gallagher v. City of Clayton, 699 F.3d 1013, 101516, 1021 (8th Cir. 2012) ( a facial vagueness challenge, even when the ordinance at issue lacked a mens rea requirement) (internal quotations and citation...
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