Sanimax USA, LLC v. City of South St. Paul

United States Court of Appeals
For the Eighth Circuit
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No. 23-1579
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Sanimax USA, LLC
Plaintiff - Appellant
v.
City of South St. Paul
Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 18, 2023
Filed: March 1, 2024
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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
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SHPEHERD, Circuit Judge.
Sanimax USA, LLC, sued the City of South Saint Paul, Minnesota, under 42
U.S.C. § 1983, challenging the validity of a zoning ordinance that designated its
business as a nonconforming use. Sanimax later filed a second § 1983 action against
the City challenging the validity of an odor ordinance under which it had been cited
and fined for noncompliance. In its first lawsuit, Sanimax raised a First Amendment
retaliation claim and an Equal Protection class-of-one claim; in its second lawsuit,
Sanimax advanced a void-for-vagueness claim and another First Amendment
retaliation claim. The cases were consolidated, and the district court 1 granted the
City’s motion for summary judgment on all counts. Sanimax renews its claims on
appeal, arguing that summary judgment is premature because a genuine dispute of
material fact exists for each of its alleged constitutional injuries. Having jurisdiction
under 28 U.S.C. § 1291, we affirm.
I.
For more than a century, South Saint Paul was the center of a vibrant livestock
and meatpacking trade. Located in the City’s Industrial zoning district along the
Mississippi River, stockyards and packing facilities served as the backbone of the
community’s workforce, at one time employing more than 10,000 people. As
conditions changed, however, many industry-related businesses closed, and the last
stockyards shut their gates in 2008. Endeavoring to stimulate economic growth, the
City redeveloped a portion of the Industrial district into the BridgePoint Business
Park, which saw various light industrial firms and offices open in the area. But some
businesses associated with the old meatpacking industry remained, including
slaughtering, rendering, and hide-processing facilities.
It was against this backdrop that the City adopted its 2030 Comprehensive
Plan setting forth future land use policies. The Comprehensive Plan aimed to create
a “new image” for South Saint Paul and reaffirmed the City’s commitment to
developing BridgePoint as a “modern commerce” hub. It also identified Interstate
494, which bisects the Industrial district and forms the southern border of
BridgePoint, as a “gateway to the community” and a corridor through which the City
could showcase ongoing redevelopment efforts. To reflect the significant changes
to the area that had already occurred, and to encourage aesthetic uniformity, the
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
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Comprehensive Plan prospectively guided land north and south of Interstate 494
from Industrial to Light Industrial.
The Comprehensive Plan also noted the City’s ongoing battle with foul
odors—a negative externality of the once-prodigious meatpacking industry—now
perpetuated by the remaining establishments that continued to operate among the
new crop of businesses that had opened in recent years. The presence of nuisance
odors had stymied development in the area, the Comprehensive Plan found;
accordingly, it was imperative that the City work with “holdover industries” to
identify and mitigate odor issues moving forward.
Sanimax is one such holdover industry. For decades, it has operated a
rendering plant in South Saint Paul that processes animal carcasses and organic
byproducts for use in other goods. Sanimax’s manufacturing processes emit
pungent, foul odors that often drift beyond the boundaries of its property, drawing
the ire of nearby residents and businesses. Sanimax is aware of its odor problem but
maintains that the processing of organic materials is an inexorably malodorous task.
In recent years, it has invested significant resources in odor-abatement technology
and has, on several occasions, met with the City regarding the issue. Despite its
proactive efforts, however, Sanimax has been the subject of numerous odor
complaints lodged by disgruntled residents. As reflected in the Comprehensive Plan,
addressing the pervasiveness of industrial odors in South Saint Paul, including those
emanating from Sanimax’s facility, was a priority for the City.
In 2014, the City enacted its first ordinance regulating odor pollution. Section
110-142 of the Ordinance prohibited odor emissions that: (1) “Create odors or smells
which are offensive or obnoxious to another person within the City”; (2) “Create a
detrimental effect on the property of another person in the City”; or
(3) “Unreasonably interfere with the enjoyment of life, health, safety, peace,
comfort, or property of another person in the City.” The Ordinance also created an
enforcement scheme under which properties identified as potential odor emitters
would be required to submit to independent odor testing. Specifically, the testing
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requirement applied both to properties identified by a previous study as potential
odor emitters and those that were the subject of seven “verifiable odor complaints”
within a six-month period; a complaint was “verified” if the City Engineer confirmed
that a property was the source of the emission that precipitated the complaint. The
Ordinance also empowered the City Engineer, pursuant to the results of the odor
testing, to designate a property as a “Significant Odor Generator” and require it to
develop an odor management plan in consultation with the City detailing proposed
operational changes, technologies, and monitoring efforts intended to mitigate future
emissions.
The City retained Short Elliot Hendrickson, Inc. (SEH) to monitor the fugitive
emissions of properties identified as potential designees under the Ordinance.
Pursuant to SEH’s testing recommendation, the City deemed Sanimax a Significant
Odor Generator in 2015. Sanimax appealed, and the City agreed to rescind the
designation upon securing Sanimax’s commitment to, among other things, meet
regularly with the City to discuss odor-abatement strategies. These collaborative
efforts were apparently unfruitful because the City designated Sanimax as a
Significant Odor Generator once more in 2016. Sanimax responded by filing a
lawsuit challenging the Ordinance as unconstitutionally vague, but it voluntarily
dismissed the action after the City agreed to rescind the second designation.
In 2017, the City enacted another odor ordinance amending the Significant
Odor Generator designation criteria established by the 2014 Odor Ordinance.
Whereas the 2014 Odor Ordinance empowered the City Engineer to designate a
property as a Significant Odor Generator based solely on the results of independent
odor testing, the 2017 Odor Ordinance additionally required that the property
generate seven verifiable odor complaints within a six-month period before such a
designation could be made. Moreover, to verify a complaint, the 2017 Odor
Ordinance required the City Engineer to confirm both that the property was the
source of the emission that precipitated the complaint, and that the property
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generated a dilution-to-threshold ratio of seven or more odor units, as measured
using a Nasal Ranger olfactometer.2
The City also sought to implement zoning changes pursuant to the 2030
Comprehensive Plan. In 2017, it proposed an ordinance that would subdivide the
existing Industrial district into I-1 Light Industrial, which encompassed Sanimax’s
property and most of the land north of Interstate 494, and I-2 Medium Industrial,
which consisted of land south of Interstate 494. To reflect the shift from heavy
industrial to light industrial uses in the BridgePoint area, the I-1 district prohibited
the “processing of grease or organics into by-products” and the “rendering,
reclaiming or processing of animals or meat by-products.” Instead, such activities
were to be permitted as conditional uses in the I-2 district. In a letter to City officials,
Sanimax argued that the City lacked a rational basis on which to “target” its business,
and the proposed 2017 Zoning Ordinance did not advance beyond the Planning
Commission.
The City enacted Ordinance 1350 in 2019 (2019 Zoning Ordinance), which
largely accomplished the objectives of the proposed 2017 Zoning Ordinance by
creating a 115-parcel I-1 Light Industrial district. The I-1 district encompassed
Sanimax’s property, and it prohibited the same uses as those enumerated in the
proposed 2017 Zoning Ordinance, but the geographic scope of the I-1 district was
now narrower. Unlike the proposed 2017 Zoning Ordinance, in which the I-1 district
spanned south of Interstate 494 to Richmond Street, the 2019 Zoning Ordinance
instead used Interstate 494 as the district’s southern boundary, leaving the remaining
land south of the Interstate zoned Industrial. The 2019 Zoning Ordinance rendered
2
A Nasal Ranger is a device utilized in the field of scentometry to measure the
strength of an odor based on the ability to smell the odor after diluting ambient air
with non-odorous, carbon-filtered air. An odor panelist places the Nasal Ranger on
his nose and uses the device’s six carbon-filtered positions (2, 4, 7, 15, 30, 60) to
measure the amount of carbon-filtered air needed to render an odor undetectable.
This measurement produces the dilution-to-threshold ratio; an odor concentration
with a dilution-to-threshold ratio of seven is described as “objectionable.”
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Sanimax’s business a legal nonconforming use, pursuant to which Sanimax could
continue to operate—but could not expand—its business.
Meanwhile, the City found that its odor legislation, which created the
Significant Odor Generator designation and concomitant odor management plan
requirement, lacked an adequate enforcement mechanism to address fugitive
emissions from businesses that were “not willing to take a collaborative approach
and work with the City.” Under the 2017 Odor Ordinance, for example, Significant
Odor Generators that failed to comply with the Ordinance’s requirements enjoyed a
12-month grace period before administrative penalties began to accrue. As a result,
odor complaints from frustrated residents persisted—and indeed sharply
increased—as people spent more time outdoors during the COVID-19 pandemic.
To curate an approach with “teeth” sufficient to address uncooperative
businesses, the City enacted Ordinance 1356 in 2020 (2020 Odor Ordinance), which
created a “two-track system” for remedying odor emissions. Pursuant to this new
Ordinance, the City could, in its discretion, place an odor emitter on Track One, a
“friendly” approach intended for businesses “interested in collaborating with the
City . . . to reduce odors,” or the “more punitive” Track Two, designed for businesses
“that decline to work with the City.” Track One was, in effect, the existing odor
management plan procedure established by the 2014 Odor Ordinance requiring a
property designated as a Significant Odor Generator to consult with the City to
develop mitigation strategies. Track Two instead employed the existing
administrative citation process used for standard code enforcement violations.
Accordingly, the 2020 Odor Ordinance empowered the City to place an
odor-emitting business on Track Two and immediately issue administrative
citations.
The City soon received numerous complaints regarding “burnt, dead, rotting”
odors emanating from Sanimax’s property. The City’s odor consultant, SEH,
independently verified the complaints using a Nasal Ranger, and the City
subsequently transmitted a warning letter informing Sanimax that its facility had
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thrice violated § 110-142 of the City Code prohibiting the emission of offensive
odors. The letter stated that “[a] nasal Ranger measurement is not necessary to
establish that an odor is offensive, detrimental to other properties, or unreasonably
interferes with [the] peace, comfort[,] and enjoyment of another’s property,” but it
continued: “You must bring the Sanimax Property into compliance by ceasing and
desisting from emitting offensive odors, specifically, odors that are detectable at a
level of 7 odor units or higher, as measured from a location not on the Sanimax
Property.” Sanimax has since received 20 administrative citations for violating
§ 110-142 and has accrued $35,000 in fines. Before the City issued each citation,
SEH verified that Sanimax’s property was the source of the odor complaint, and that
the strength of the emission was at least seven odor units.
In 2020, Sanimax filed an action under 42 U.S.C. § 1983 challenging the
constitutionality of the 2019 Zoning Ordinance, alleging that the City retaliated
against Sanimax for engaging in conduct protected by the First Amendment; namely,
contesting the 2014 Odor Ordinance and the proposed 2017 Zoning Ordinance. It
also contended that the 2019 Zoning Ordinance violated the Equal Protection Clause
of the Fourteenth Amendment by excluding similarly situated businesses from the
I-1 Light Industrial district and treating Sanimax as a “class of one.” That same year,
Sanimax filed a second § 1983 action against the City alleging that the 2020 Odor
Ordinance was unconstitutionally vague, in violation of the Due Process Clause of
the Fourteenth Amendment. It also alleged a First Amendment retaliation claim
based on the same protected conduct raised in the first lawsuit.
The cases were consolidated, and the district court granted the City’s motion
for summary judgment on all claims. The district court found that Sanimax failed
to establish but-for causation for either of the First Amendment retaliation claims,
stating that “no reasonable jury could conclude that the 2019 [Zoning] Ordinance
and the 2020 Odor [Ordinance] would not have been adopted absent Sanimax’s
protected conduct.” It additionally rejected the Equal Protection class-of-one claim
upon finding that Sanimax’s facility had generated scores of odor complaints and
thus was not similarly situated to its comparators, Twin City Hide and Twin City
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Tanning. The district court concluded that the void-for-vagueness claim failed,
finding that Sanimax received adequate notice of the proscribed conduct and that the
City did not arbitrarily enforce the 2020 Odor Ordinance. Sanimax renews its four
claims on appeal, arguing that the district court misapplied the summary judgment
standard.
II.
We review de novo a district court’s grant of summary judgment, “viewing
the record in the light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor.” Richardson v. Omaha Sch. Dist., 957
F.3d 869, 876 (8th Cir. 2020) (citation omitted). Summary judgment is proper when
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling on a summary
judgment motion, a district court must not “weigh evidence or make credibility
determinations.” Danker v. City of Council Bluffs, 53 F.4th 420, 423 (8th Cir.
2022).
A.
We begin with Sanimax’s First Amendment retaliation claims. “‘[A]s a
general matter the First Amendment prohibits government officials from subjecting
an individual to retaliatory actions’ for engaging in protected speech.” Nieves v.
Bartlett, 139 S. Ct. 1715, 1722 (2019) (alteration in original) (citation omitted). To
prevail, Sanimax must show that: “(1) [it] engaged in a protected activity, (2) [the
City] took adverse action against [it] that would chill a person of ordinary firmness
from continuing in the activity, and (3) the adverse action was motivated at least in
part by the exercise of the protected activity.” De Rossitte v. Correct Care Solutions,
LLC, 22 F.4th 796, 804 (8th Cir. 2022) (citation omitted). The parties dispute only
the third element on appeal. “It is not enough to show that an official acted with a
retaliatory motive and that the plaintiff was injured—the motive must cause the
injury.” Nieves, 139 S. Ct. at 1722. Thus, to satisfy the third element of a retaliation
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claim, Sanimax “must show the protected activity was a ‘“but-for cause” of the
adverse action,’” in that it “would not have been taken absent [a] retaliatory motive.”
De Rossitte, 22 F.4th at 804 (alteration in original) (citation omitted).
Sanimax first asserts that the district court erroneously disregarded three
internal City emails demonstrating that Sanimax’s prior administrative and legal
challenges were the but-for cause of the 2020 Odor Ordinance. Cited as the
retaliatory “smoking gun” is an email from the City Planner to employees of SEH in
which the City Planner commented on the futility of designating Sanimax as a
Significant Odor Generator for a third time because the City’s 2017 Odor Ordinance
was “not strong enough to go up against their legal team.” The City Planner then
suggested two alternative strategies to combat Sanimax’s odor problem: The City
could implement an “odor tax” and issue an administrative citation for every verified
odor complaint that SEH attributed to Sanimax’s facility, or it could request that the
Minnesota Pollution Control Agency conduct an enforcement action. As indicated
by the enactment of the 2020 Odor Ordinance, the City pursued the first alternative.
Sanimax argues that this email alone warrants reversal, as it “shows that but
for Sanimax’s challenge to the [Significant Odor Generator] designations, the 2020
Odor [Ordinance] would not exist.” By making this argument, however, Sanimax
paints but-for causation with exceedingly broad strokes and attempts to excise the
retaliatory animus element from the analysis. See Aldridge v. City of St. Louis, 75
F.4th 895, 899 (8th Cir. 2023) (noting the requirement under a retaliation claim that
the defendant “would not have taken the adverse action but for harboring ‘retaliatory
animus’ against the plaintiff[]” (citation omitted). Even if the City adopted the 2020
Odor Ordinance in response to Sanimax’s challenges to the 2017 Odor Ordinance,
to find that it did so to retaliate against Sanimax would require this Court to draw
an unreasonable inference from the record. Rather, the record supports the
conclusion that the City amended its odor-control strategy with the 2020 Odor
Ordinance because the current approach was unlikely to survive a legal challenge.
As the district court opined, “adding clarity to an ordinance out of concern that the
ordinance could be challenged is not retaliation for protected activity.”
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Extrapolating Sanimax’s argument underscores its untenability: A plaintiff
affected by a local regulation could unilaterally hamstring municipal lawmakers in
perpetuity by merely challenging the regulation’s effect, as any attempt by the
municipality to thereafter amend the law would necessarily be in response to—and
thus in “retaliation” for—the initial challenge brought by the plaintiff. Sanimax has
cited no case adopting such a broad conception of but-for causation in the retaliation
context, and we will not be the first to so hold.
The remaining emails fare no better in the analysis. In the second
communication, the City Planning Division Manager wrote to other employees that
the City was seeking to enact the 2020 Odor Ordinance to allow it to fine Sanimax
as an alternative to requiring the development of an odor management plan pursuant
to a third Significant Odor Generator designation. And in the third communication,
the City Planner informed a representative of SEH that the City had adopted the 2020
Odor Ordinance implementing the two-track system, remarking that “[f]or a
noncooperative business like Sanimax, our intent is to use ‘Track 2’ . . . to punish
them to the maximum extent that our Code allows for all violations.”
Sanimax again urges this Court to draw an unreasonable inference from these
emails by concluding that the City intended to punish Sanimax for challenging its
previous Significant Odor Generator designations rather than for its failure to curb
bothersome odor emissions. It is undisputed that the City has identified odor
abatement as a priority since at least 2008 when it adopted the 2030 Comprehensive
Plan. In the years that followed, the City approved Sanimax’s request for a Planned
Unit Development (PUD) and a related amendment allowing for a facility expansion
of over 60,000 square feet, but it conditioned the approvals on Sanimax’s agreement
to submit information regarding odor impacts, to engage an independent odor-testing
agency, and to meet with the City on a quarterly basis regarding its odor problem.
In response to another requested PUD amendment, the City noted a “growing public
sentiment” that odor abatement “should be the sole focus” of any future construction
projects on Sanimax’s property.
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To this end, Sanimax took a proactive approach to the issue by purportedly
investing $1 million in odor-mitigation technology and meeting consistently with
the City to discuss strategies for improvement. Moreover, Sanimax’s plant manager
regularly apprised the City Planning Division Manager of any processing failures
that had occurred at the facility and the efforts that were made to contain the resulting
odors. By its own admission, however, Sanimax’s proactive communications with
the City waned as the years progressed. Around the same time, the number of odor
complaints attributed to Sanimax’s facility increased, on one occasion prompting its
environmental specialist to compile an odor complaint report recommending
remedial measures. 2018 marked the last time that Sanimax approached the City
with a request for a PUD amendment to install additional odor-abatement equipment,
but it later abandoned the proposal and offered no substitute. That same year,
Sanimax’s odor emissions were the subject of a class action, which it settled after
agreeing to invest in new mitigation technology.
The multitude of odor complaints lodged with the City regarding Sanimax’s
facility, in which residents vividly described “eye-watering,” “putrid” odors that
reeked of “death” and smelled like “manure” and “burning flesh,” further reflected
the public’s discontent. Some residents complained of headaches and remarked that
the presence of odors prevented them from relaxing in their yards or opening the
windows to their homes. Others pleaded with the City to “stop the madness,” with
some questioning their continued residence in South Saint Paul. Moreover, a nearby
business remarked that Sanimax’s odors were “impacting the ability of several
employees to perform their job functions.”
City leaders were thus faced with an acute odor problem and an increasingly
frustrated constituency. And as evidenced by the quantity of complaints received in
2019 and 2020, the City’s existing odor legislation—the 2017 Odor Ordinance—did
little to quell residents’ concerns. In response, the City altered its approach with the
2020 Odor Ordinance to create an additional avenue through which it could enforce
odor violations. The remaining two emails which Sanimax references above merely
reflect the City’s reasoning for doing so. Although Sanimax contends that the only
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evidence of its “non-cooperation,” as referenced in the third email from the City
Planner to an SEH employee, consisted of its earlier challenges to the Significant
Odor Generator designations, the record reveals that Sanimax’s unremitting odor
problem, rather than its protected conduct, served as the impetus for the 2020 Odor
Ordinance.
B.
We also reject Sanimax’s attempt to establish but-for causation on its second
retaliation claim challenging the 2019 Zoning Ordinance. To support its theory,
Sanimax cites additional emails authored in 2016 and 2017 by City employees.
Three of these communications reflect the City’s prior efforts to remedy Sanimax’s
odor problem by designating its property as a Significant Odor Generator and
requiring the development of an odor management plan. These exchanges merely
show the City’s then-existing odor abatement approach under the 2014 and 2017
Odor Ordinances, under which the Significant Odor Generator designation was the
primary tool of enforcement. Sanimax also points to an additional email in which
SEH stated that it could streamline its odor monitoring efforts by “just targeting
Sanimax.” The comment was made in response to the City Planner’s request that
SEH reallocate resources from proactive odor monitoring to odor complaint
response; to satisfy this request, SEH suggested that it could conduct observations
near only Sanimax’s property, “with a contingency for” observing other odor
emitters if those properties also become “complacent with odor control.” Again, this
email does nothing to establish that the City retaliated against Sanimax for engaging
in protected conduct. Rather, the City had expended significant funds retaining SEH
as its odor consultant and had identified odor complaint response as a priority for its
residents. Moreover, the City did not adopt the suggestion, as SEH continued to
monitor other odor emitters during that timeframe.
Additionally, Sanimax asserts that the 2019 Zoning Ordinance conflicts with
the 2030 Comprehensive Plan and that the district court consequently erred by
finding that the City’s zoning actions predated Sanimax’s protected conduct, thus
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vitiating but-for causation. As adopted in 2008, the Comprehensive Plan identified
the Interstate 494 Corridor, which bisected the Industrial zoning district and
extended north to Armour Avenue and south to Richmond Street, as an “important
gateway” to South Saint Paul and an area in which the City could “showcase” its
transition away from heavy industrial uses. To this end, the Comprehensive Plan
prospectively guided much of the Industrial zoning district, including Sanimax’s
property, as I-1 Light Industrial. The boundaries of the proposed I-1 district
identified in the Comprehensive Plan expanded north beyond Armour Avenue and
south to Richmond Street. But the City instead selected Interstate 494, rather than
Richmond Street, as the I-1 district’s southern border in the 2019 Zoning Ordinance.
Sanimax contends that this geographic deviation from the Comprehensive
Plan evidences the City’s retaliatory intent, as it leaves other odor-emitting
businesses between Interstate 494 and Richmond Street zoned Industrial. We
disagree, as the change merely reflects the realities of pluralistic governmental
decision-making. The City previously attempted to carry out the Comprehensive
Plan’s objectives with the proposed 2017 Zoning Ordinance, which devised two
alternative proposals: the first proposal adhered to the I-1 boundary lines set forth in
the Comprehensive Plan and rezoned properties south of Richmond Street as I-2
Medium Industrial; the second proposal selected Interstate 494 as the I-1 district’s
southern boundary, which also served as the I-2 district’s northern boundary.
Neither option garnered a consensus in the City Council, and the Ordinance failed
to advance beyond the early planning stage. The City therefore revised its approach
with the 2019 Zoning Ordinance, finding it optimal to proceed by rezoning the
section of the Industrial district north of Interstate 494 on which a consensus existed,
since the rezoning of properties to the south was a “work in progress.” In this vein,
the area north of Interstate 494, including the BridgePoint Business Park where
Sanimax was located,3 had experienced significant redevelopment to light industrial
3
Although Sanimax asserts that its property is not located within BridgePoint,
the 2030 Comprehensive Plan states that the business park is bordered by Concord
Street, the Mississippi River, and Interstate 494. Sanimax’s property falls squarely
within these boundaries.
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uses, while the area south of the Interstate had yet to experience a comparable
transition.
Accordingly, nowhere does the record indicate, or allow this Court to
reasonably infer, that the City enacted the 2019 Zoning Ordinance to retaliate against
Sanimax for its protected conduct. Sanimax’s argument insinuates that the City was
required to implement the entirety of the Comprehensive Plan’s zoning objectives at
once, lest it run afoul of the Constitution. In the Equal Protection context, the
Supreme Court has stated that “legislature[s] must be allowed leeway to approach a
perceived problem incrementally.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307,
316 (1993). We find this admonition instructive here given that Sanimax essentially
challenges the decision of a legislative body to incrementally rezone a large swath
of land encompassing 115 parcels. Indeed, a draft of the 2040 Comprehensive Plan,
published in 2019, expresses the City’s desire to eventually transition the area south
of Interstate 494 to mixed use and articulates a timeframe for doing so. That the
City deferred the rezoning of this area does not render the 2019 Zoning Ordinance
inconsistent with the 2030 Comprehensive Plan. See Mendota Golf, LLP v. City of
Mendota Heights, 708 N.W.2d 162, 174 (Minn. 2006) (“Because land use planning
and regulation are within a city’s legislative prerogative, the city has broad discretion
when it makes decisions in that arena.”). Likewise, we find unpersuasive Sanimax’s
argument that the City “abandon[ed]” the 2030 Comprehensive Plan by updating the
2040 Comprehensive Plan’s land use map to reflect the I-1 zoning change. See Minn
Stat. 462.353 (enumerating the power of a municipality to amend its comprehensive
plan).
Thus, Sanimax’s property has been guided for light industrial uses since the
City adopted the 2030 Comprehensive Plan, years before Sanimax engaged in
protected activity. The 2019 Zoning Ordinance implemented the Comprehensive
Plan’s prospective zoning guidance by creating the I-1 Light Industrial district,
which in turn furthered the City’s goal of transitioning away from the heavy
industrial uses that once dominated the area. See Musco Propane, LLP v. Town of
Wolcott Plan. & Zoning Comm’n, 536 F. App’x 35, 39-40 & n.2 (2d. Cir. 2013)
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(finding no retaliatory causation where each adverse action taken by a municipal
zoning commission against the plaintiff “was logically connected” to and a “natural
outgrowth of” an event that occurred before the plaintiff engaged in protected
conduct); cf. Burkhart v. Am. Railcar Indus., 603 F.3d 472, 477 (8th Cir. 2010)
(“Evidence of an employer’s concerns about an employee’s performance before the
employee’s protected activity undercuts a finding of causation.” (citation omitted)).
Sanimax finally directs us to two statements made by City officials that
purportedly establish retaliatory causation. First, Sanimax asserts that the City
Attorney remarked during a phone call to Sanimax’s counsel that the intent of the
2019 Zoning Ordinance was to “‘sunset’ Sanimax and put it out of business.” In his
deposition, the City Attorney admitted to using the term “sunset” but contested
Sanimax’s characterization of the call, stating that “sunsetting” under Minnesota law
is a term of art describing that a nonconforming use may continue until the property
owner voluntarily ceases the use. Second, Sanimax’s plant manager testified that he
overheard a conversation at City Hall between the City Planner and a business owner
as they were waiting for a zoning meeting to begin. The business owner expressed
his concern over the 2019 Zoning Ordinance, to which the City Planner responded
that the City had no intention of closing existing businesses. The business owner
then quipped, “I wish you could use it to . . . get rid of those stinky neighbors next
to me here,” referring to Sanimax. The City Planner replied to the effect of: “[I]f
there’s a legal means to do so, we will.”
Even when construing all reasonable inferences in favor of Sanimax, as we
must on summary judgment, these two statements are insufficient to create a genuine
dispute of material fact regarding retaliatory causation. We note that Sanimax’s
retaliation claim challenges a legislative action taken by the City Council, of which
there is no indication that the City Attorney or City Planner were members. Sanimax
thus bears the burden of showing that the City Council—as a collective body—acted
with retaliatory intent, not individuals within the municipal bureaucracy who did not
vote to enact the 2019 Zoning Ordinance. See Guth v. Tazewell Cnty., 698 F.3d
580, 586 (7th Cir. 2012) (“[I]n arguing retaliation [the plaintiff] encounters an
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unsuspected obstacle: it is more difficult to prove the bad intent of a legislative body,
which is a collective, than of an individual.”).
With this in mind, and considering that we have found Sanimax’s other
evidence on this issue insufficient to create a genuine factual dispute, no reasonable
jury could find that these two statements standing alone establish a causal nexus
between Sanimax’s protected conduct and the 2019 Zoning Ordinance. In so
finding, we do not discount that the City Planner and City Attorney may have
counseled, advised, or otherwise influenced the City Council regarding the 2019
Zoning Ordinance, nor do we disregard Sanimax’s contention that these men
harbored a retaliatory animus. But “an official’s ‘action colored by some degree of
bad motive does not’” lessen the rigorous but-for causation standard. Nieves, 139
S. Ct. at 1722. And the extant evidence, which consists only of isolated, ambiguous
statements made by non-councilmembers, is insufficient to survive summary
judgment.
III.
Sanimax next claims that the 2019 Zoning Ordinance violates the Equal
Protection Clause of the Fourteenth Amendment. Sanimax does not allege that it is
a member of a discrete group but asserts instead that the City singled it out as a “class
of one” by excluding like businesses from the I-1 Light Industrial district. The Equal
Protection Clause “commands that no State shall ‘deny to any person within its
jurisdiction the equal protection of the laws,’ which is essentially a direction that all
persons similarly situated should be treated alike.” City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439 (1985). As we have noted:
Where a plaintiff has not shown discrimination based on membership
in a class or group, the Supreme Court’s ‘cases have recognized
successful equal protection claims brought by a “class of one,” where
the plaintiff alleges that she has been intentionally treated differently
from others similarly situated and that there is no rational basis for the
difference in treatment.’
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Mensie v. City of Little Rock, 917 F.3d 685, 692 (8th Cir. 2019) (quoting Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). The “threshold
inquiry,” therefore, is whether the class-of-one plaintiff is “similarly situated to
others who allegedly received preferential treatment.” Robbins v. Becker, 794 F.3d
988, 996 (8th Cir. 2015). This presents a significant hurdle: “the persons alleged to
have been treated more favorably must be identical or directly comparable to the
plaintiff in all material respects.” Id. (emphasis added) (citation omitted). Absent
such a showing, a class-of-one claim must fail. Id.Regarding local zoning decisions in the Equal Protection context, this Court’s
task is only “to ascertain whether there has been a transgression upon the property
owner’s constitutional rights”; it is not to “assume the role of a ‘super zoning board’”
and “reverse the commission merely because a contrary result may be permissible.”
Mensie, 917 F.3d at 692 (citations omitted). Accordingly, the plaintiff must
“provide a specific and detailed account of the nature of the preferred treatment of
the favored class, especially when the state actors exercise broad discretion to
balance a number of legitimate considerations.” Id. (citation omitted).
Sanimax identifies Twin City Hide and Twin City Tanning as its comparators.
These businesses operate south of Interstate 494 and were not included in the 2019
Zoning Ordinance’s I-1 Light Industrial district. Sanimax contends that it is
similarly situated to its comparators because the three businesses: engage in
agricultural-industrial operations, including the rendering of animal carcasses; are
located in the historic Industrial zoning district; were identified by the 2030
Comprehensive Plan as properties within the Interstate 494 corridor; were guided as
Light Industrial in the 2030 Comprehensive Plan; were granted facility-expansion
approvals after the City adopted the 2030 Comprehensive Plan; were included in the
proposed 2017 Zoning Ordinance’s I-1 district; and requested that the City exclude
them from the I-1 district and continue to zone their properties as Industrial. A
striking dissimilarity, however, lies in the disproportionate number of verified odor
complaints attributed to Sanimax as compared to Twin City Hide and Twin City
Tanning. Specifically, SEH’s data reveals that between 2015 and 2021, Sanimax
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generated 79 such complaints, while Twin City Hide and Twin City Tanning
together generated seven—more than a tenfold difference. This led the district court
to find that “[b]ecause Sanimax generates a disproportionately high number of
verified odor complaints in comparison to the other two businesses, no reasonable
jury could conclude that Sanimax is similarly situated to those businesses in all
relevant respects.” We agree.
Sanimax attacks the district court’s holding on several fronts, first arguing that
the quantity of odor complaints is irrelevant to the similarly situated analysis.
Specifically, Sanimax argues that the district court, by relying on the quantity of
odor complaints, did not precisely define its claim. See Klinger v. Dep’t of Corr.,
31 F.3d 727, 731 (8th Cir. 1994) (“[B]ecause the similarly situated inquiry depends
on what government action the plaintiffs are challenging, we must first precisely
define the plaintiffs’ claim.”). But this assertion ignores that the 2030
Comprehensive Plan, which envisioned the I-1 Light Industrial district, identified
“foul odors” as a lingering problem in the BridgePoint Business Park and Interstate
494 corridor, stating that the City would need to “work comprehensively” to remedy
the issue. Specifically, it identified “rendering, hide processing, hide tanning, [and]
slaughtering/meat production” as uses that created noxious odors and affected
redevelopment efforts in the area. This argument also belies the text of the 2019
Zoning Ordinance, which states that the I-1 district “is intended to regulate and map
those areas identified in the comprehensive plan for uses that do not in their
operation create levels of . . . odor . . . and other externalities that are offensive and
detrimental to the orderly development and use of surrounding properties.”
Sanimax attempts to qualify the above text by contending that the
Comprehensive Plan only “considers odor issues generally, not any specific number
of odor complaints.” This assertion is a nonstarter. To address the subject matter
raised in the Comprehensive Plan, the City implemented an odor complaint response
program in conjunction with SEH. Under this program, the City forwarded
complaints received from residents to SEH, which would investigate the source and
strength of the reported odors. In other words, the City relied on numerical data to
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tackle its odor problem. It is indeed puzzling to contemplate how a local government
could “generally” address bothersome odor emissions without developing a
quantifiable process through which it could identify the sources of the emissions for
remediation.
Sanimax also challenges the district court’s reliance on Griffin Industries, Inc.
v. Irvin, in which the Eleventh Circuit found that “[g]overnmental decisionmaking
challenged under a ‘class of one’ equal protection theory must be evaluated in light
of the full variety of factors that an objectively reasonable governmental
decisionmaker would have found relevant in making the challenged decision.” 496
F.3d 1189, 1203 (11th Cir. 2007). Particularly, “when plaintiffs in ‘class of one’
cases challenge the outcome of complex, multi-factored government
decisionmaking processes, similarly situated entities ‘must be very similar indeed.’”
Id. at 1205 (citation omitted). In Griffin, a poultry-rendering plant alleged that it had
been singled out for disparate treatment and regulation despite being similarly
situated to another poultry facility. Id. at 1202-03. The court dismissed this
argument upon finding that the plant experienced a substantial increase in odor
complaints from nearby residents stemming from its recent expansion of rendering
operations, which in turn fomented intense political pressure for local officials to
remedy the issue. Id. at 1206. By the same token, the plant failed to allege that its
comparator had similarly experienced an uptick in odor complaints owing to an
expansion of rendering activities or that it was also the source of political backlash.
Id. “In evaluating whether a regulator has treated two facilities differently,” the court
noted, “all three points—recent substantial changes in the volume of industrial
activity, high levels of citizen complaints, and pressure from local politicians—are
relevant in the comparison.” Id. Given that “[d]ifferent treatment of dissimilarly
situated persons does not violate the equal protection clause,” the court ultimately
rejected the poultry plant’s class-of-one claim. Id. at 1207 (citation omitted).
While Griffin does not bind this Court, we find the Eleventh Circuit’s analysis
persuasive and its reasoning sound. See Duluth, Winnipeg & Pac. Ry. Co. v. City
of Orr, 529 F.3d 794, 798 (8th Cir. 2008) (“[A]lthough we are not bound by another
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circuit’s decision . . . a sister circuit’s reasoned decision deserves great weight and
precedential value.” (second alteration in original) (citation omitted)). Here, as we
have already discussed, the 2030 Comprehensive Plan identified odor mitigation as
a priority for future development, and the 2019 Zoning Ordinance created the I-1
Light Industrial district in furtherance of this goal. Moreover, the City received an
increasing number of odor complaints in recent years from residents incensed by
Sanimax’s stench, and local leaders faced mounting pressure from the public to
address the problem. “Regulators act on the basis of available information.” Griffin,
496 F.3d at 1207. It follows, then, that odor complaints are a factor that “an
objectively reasonable governmental decisionmaker would have found relevant in”
devising the 2019 Zoning Ordinance, which set forth the boundaries of the I-1
district. See id. at 1203.
Sanimax argues that the court in Griffin distinguished zoning-based
class-of-one claims, such as those raised in Olech, 528 U.S. at 562, and Executive
100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir. 1991), from the “complex,
multi-factored governmental decisionmaking processes” at issue in that case.
Griffin, 496 F.3d at 1205. In Olech, the plaintiff challenged a municipality’s
condition that she grant a 33-foot easement to allow for a connection to the local
water supply where other property owners were required to grant only 15-foot
easements. 528 U.S. at 563. And in Executive 100, the plaintiffs challenged a
county’s denial of their zoning variance request where others had been granted the
same variance. 922 F.2d at 1538. The Eleventh Circuit opined that these cases
represented “one-dimensional” decisions that allowed the courts to conduct their
similarly situated analyses “succinctly and at a high order of abstraction.” Griffin,
496 F.3d at 1203, 1210. Here, by contrast, Sanimax challenges the creation of a new
zoning district spanning 115 parcels that was envisioned more than fifteen years ago
in the 2030 Comprehensive Plan. The myriad City Council work-session reports,
draft ordinances, and other planning documents that were produced in subsequent
years—in which the City revised existing zoning and architectural provisions and
developed new permitted uses, conditional uses, and prohibited uses, as well as
criteria for conditional use and interim use permits, all with the input of the City
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Zoning Commission, planning staff, and the public—show that the 2019 Zoning
Ordinance was a far cry from the “one-dimensional” zoning decisions at issue in
Olech and Executive 100.
Sanimax alternatively argues that, even if the disparity in the volume of odor
complaints is a relevant consideration in the similarly situated inquiry, numerous
pieces of evidence in the record undermine the legitimacy of the complaints
attributed to its facility. However, we have previously addressed much of the same
evidence when analyzing Sanimax’s retaliation claim challenging the 2019 Zoning
Ordinance, including the many emails exchanged between City employees and SEH
consultants and the City’s reasoning for excluding properties south of Interstate 494
from the I-1 Light Industrial district. Sanimax seemingly cites this evidence again
to assert that the City’s retaliatory animus undercuts the reliability of the odor
complaint data. This contention would certainly hold water if we did not reject
Sanimax’s characterization of the record once before. But given that the evidence
does not support a claim that the City retaliated against Sanimax for engaging in
protected conduct, we similarly find that the cited evidence fails to support a claim
that the odor complaints lodged with the City are illegitimate on this basis. With
that in mind, we consider the other points that Sanimax advances regarding the
validity of the odor complaints.
First, Sanimax points to the report prepared by its toxicology and industrial
hygiene expert finding that between May 3 and May 7, 2021, Twin City Hide and
Twin City Tanning produced stronger odors than Sanimax. Recall, however, that
the City instituted an odor complaint response program to address fugitive odor
emissions. It was chiefly concerned, then, with responding to the problem properties
identified by its residents. And as shown by the complaint-based data, residents
were perturbed to a greater degree by its odors than they were by those emitted from
Twin City Hide and Twin City Tanning, which is valid given that these two
businesses were located one mile south of Sanimax’s facility on the other side of
Interstate 494. The finding of Sanimax’s expert does not cast doubt on the reliability
of the odor complaints.
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Second, Sanimax asserts that the 2019 Zoning Ordinance, which designated
its facility as a nonconforming use, will only perpetuate—and may in fact
exacerbate—the City’s odor problem, as Minnesota law allows for the continuance
of nonconforming uses. See Minn. Stat. 462.357, subdiv. 1e. We strain to see how
the legislative protection afforded to nonconforming uses delegitimizes in any way
the volume of odor complaints attributed to Sanimax. To the extent that Sanimax
questions the City’s reliance on complaint-based data in addition to the text of the
2030 Comprehensive Plan when selecting the boundaries of the I-1 Light Industrial
district, “equal protection is not a license for courts to judge the wisdom, fairness, or
logic of legislative choices.” Beach Commc’ns, Inc., 508 U.S. at 313. This is
particularly true where a legislature must engage in line-drawing. Id. at 315.
Third, Sanimax posits that the City permitted SEH to erroneously assign odor
complaints to its facility despite being aware that neighboring businesses were
instead likely responsible for the odor emissions. This argument refers to an email
exchange between the City Planner and an SEH consultant regarding three
complaints in which residents reported odors consisting of dog food and chemicals.
The City Planner informed SEH that two “high-end dog food” factories operated
near Sanimax’s property, and that SEH should take care to segregate complaints
describing dog food odors from those relating to Sanimax. In response, the SEH
consultant stated that she “wasn’t aware of this previously.” Of course, a wrongful
attribution of odor complaints to Sanimax would undermine the validity of its odor
complaint record. But as the City emphasizes, none of the three complaints that
precipitated the email resulted in verified odor complaints, nor does the record
elsewhere indicate or allow us to reasonably infer that the City erroneously verified
that odor emissions from neighboring dog-food factories emanated from Sanimax at
any point. Without evidence to flesh out Sanimax’s contention, we are left only with
a bare allegation insufficient to raise a genuine issue for trial. See Davidson &
Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005) (“A plaintiff . . . must substantiate
allegations with sufficient probative evidence that would permit a finding in the
plaintiff’s favor.”).
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Fourth, Sanimax contends that many odor complaints originated from
officials at City Hall. Sanimax seems to insinuate that City officials filed bogus odor
complaints to artificially inflate the disparity between its property and other odor
emitters, which the City then relied on to discriminate against Sanimax with the 2019
Zoning Ordinance. But this assertion glosses over the fact that it is the volume of
verified odor complaints, i.e., those in which the City Engineer confirmed that the
property was the source of the emission that precipitated the complaint, and that the
strength of the odor was at least seven odor units, which distinguishes Sanimax from
its comparators, rather than the volume of resident-submitted complaints. Put
differently, even if we accept Sanimax’s argument that City officials had submitted
unsubstantiated odor complaints, there is no evidence showing that those complaints
survived SEH’s verification procedures, or that such processes were illegitimate, in
the sense that SEH erroneously confirmed Sanimax as the source of the odor despite
receiving a purportedly fictitious complaint. Given that the similarly situated
analysis turns on the tenfold disparity in verified odor complaints between Sanimax
and its comparators, the odor complaints to which Sanimax refers do not alter the
outcome. In any event, the record does not support an inference that City officials
had lodged unsubstantiated complaints, and Sanimax likewise cites no authority
establishing that the officials’ actions in reporting the presence of foul odors at City
Hall was legally improper or should be discounted in a class-of-one analysis.
Fifth, Sanimax claims that the City “predetermined” that its facility was the
source of all odor complaints because it forwarded every complaint it received to
Sanimax, regardless of its origin. The record reveals that this was done at the request
of Sanimax’s environmental specialist, who would independently investigate the
raw complaint data to determine whether Sanimax’s facility was the source of any
of the complaints. In other words, Sanimax attempts to create a fact issue by
obfuscating its own actions. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When
opposing parties tell two different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.”).
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As Sanimax fails to meet the “high burden of proof” attendant to a
class-of-one claim, the district court did not misapply the summary judgment
standard or improperly weigh the volume of verified odor complaints against the
other similarities between Sanimax, Twin City Hide, and Twin City Tanning. Nolan
v. Thompson, 521 F.3d 983, 990 (8th Cir. 2008). In raising these arguments,
Sanimax misapprehends the operative inquiry in a class-of-one claim: it matters not
that the similarities between the three businesses abound; rather, Sanimax must show
that it is virtually identical to its comparators in all material respects. See Robbins,
794 F.3d at 996. And while Sanimax is correct that this Court has often resolved
similarly situated analyses at the summary judgment stage in cases where we could
not meaningfully assess a party’s comparators, see, e.g., id. at 996; Mensie, 917 F.3d
at 692, we have never held that a voluminous factual record—or lack thereof—is
itself determinative of whether summary judgment is proper. Indeed, the robustness
of the record here is precisely what defeats Sanimax’s class-of-one claim, because it
shows that the property is in a class of its own as it relates to the emission of vexing
odors. As we have recognized in other contexts, even the most fact-intensive
disputes “are not immune from summary judgment.” Pye v. Nu Aire, Inc., 641 F.3d
1011, 1018-20 (8th Cir. 2011) (citation omitted) (affirming summary judgment on a
Title VII claim after conducting a similarly situated inquiry). Accordingly,
Sanimax’s class-of-one claim fails.
IV.
Sanimax finally challenges the 2020 Odor Ordinance as unconstitutionally
vague both facially and as applied to the circumstances of this case. However, “[i]t
is well established that vagueness challenges to statutes which do not involve First
Amendment freedoms must be examined in the light of the facts of the case at hand”
and “judged on an as-applied basis.” Gallagher v. City of Clayton, 699 F.3d 1013,
1021 (8th Cir. 2012) (citations omitted). The First Amendment does not protect the
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emission of foul odors; we therefore only consider Sanimax’s as-applied vagueness
challenge.4
The void-for-vagueness doctrine, which is embodied in the Fifth and
Fourteenth Amendments, Postscript Enters., Inc. v. Whaley, 658 F.2d 1249, 1254
(8th Cir. 1981), “addresses at least two connected but discrete due process concerns:
first, that regulated parties should know what is required of them so they may act
accordingly; second, precision and guidance are necessary so that those enforcing
the law do not act in an arbitrary or discriminatory way,” FCC v. Fox Television
Stations, Inc., 567 U.S. 239, 253 (2012). “To defeat a vagueness challenge, a penal 5
statute must pass a two-part test: The statute must first provide adequate notice of
the proscribed conduct, and second, not lend itself to arbitrary enforcement.” United
States v. Barraza, 576 F.3d 798, 806 (8th Cir. 2009) (citation omitted). We are
mindful, of course, that the Due Process Clause does not require “perfect clarity and
precise guidance.” Hegwood v. City of Eau Claire, 676 F.3d 600, 603 (7th Cir.
2012) (citation omitted). Moreover, “[o]ne to whose conduct a statute clearly applies
may not successfully challenge it for vagueness.” Nygard v. City of Orono, 39 F.4th
514, 519 (8th Cir. 2022) (quoting Parker v. Levy, 417 U.S. 733, 756 (1974)).
4
Sanimax relies on Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc. to argue that it may mount a facial challenge against the 2020 Odor Ordinance
even though the Ordinance does not regulate constitutionally protected conduct. 455
U.S. 489, 497 (1982) (“A law that does not reach constitutionally protected conduct
and therefore satisfies the overbreadth test may nevertheless be challenged on its
face as unduly vague, in violation of due process.”). Our subsequent case law has
not extrapolated Hoffman Estates to support Sanimax’s proposition. E.g., Woodis
v. Westark Cmty. Coll., 160 F.3d 435, 438-39 (8th Cir. 1998) (noting in its
discussion of Hoffman Estates that “vagueness challenges that do not involve the
First Amendment must be examined in light of the specific facts of the case at hand
and not with regard to the statute’s facial validity” (citation omitted)).
5
A violation of the City Code is classified as a misdemeanor. South St. Paul,
Minn. Code § 38-103.
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A.
We first consider whether the 2020 Odor Ordinance provided Sanimax with
adequate notice of the proscribed conduct. Sanimax asserts that the underlying odor
prohibition in § 110-142 of the City Code, as incorporated in the 2020 Odor
Ordinance, is “patent[ly] vague[]” because it deems unlawful the emission of “odors
or smells which are offensive or obnoxious to another person within the City”
without providing explicit standards by which a violation will be determined.
“Legislatures are not required to define every term in a statute.” Adam & Eve
Jonesboro, LLC v. Perrin, 933 F.3d 951, 958 (8th Cir. 2019). “In the absence of a
definition, words are given their ordinary meaning.” Id.Here, § 110-141 defines “odor” as “that which produces a response of the
human sense of smell to an odorous substance.” See Nygard, 39 F.4th at 519-20
(noting that terms may be defined elsewhere in a city code). Moreover, “offensive”
and “obnoxious,” while undefined, are “terms that are ‘widely used and well
understood,’” Langford v. City of St. Louis, 3 F.4th 1054, 1059 (8th Cir. 2021)
(quoting Cameron v. Johnson, 390 U.S. 611, 616 (1968) (finding that terms in a
traffic ordinance such as “obstruct, impede,” and “interfere” provided adequate
notice because citizens would “have little difficulty understanding” such terms), and
track the meaning of “nuisance” as that term is defined in the City Code and under
Minnesota law, see South St. Paul, Minn., Code § 34-19 (“Public nuisance or
nuisance means a condition on property that unreasonably annoys . . . the public
health or safety and is a public health or safety hazard, including . . . any
location . . . which emits unpleasant or noxious odors.”); Minn Stat. § 561.01
(“Anything which is . . . indecent or offensive to the senses . . . so as to interfere with
the comfortable enjoyment of life or property, is a nuisance.”). Sanimax recognized
as much in its complaint when it characterized § 110-142’s odor prohibition as a
“nuisance ordinance.” And the remaining subsections in § 110-142, which prohibit
odor emissions that “[c]reate a detrimental effect on the property of another person
in the City” or ‘[u]nreasonably interfere with the enjoyment of life, health, safety,
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peace, comfort or property of another person in the City,” further confirm our
conclusion.
In this vein, the similarity of the challenged language to that used in traditional
nuisance statutes is sufficient to put Sanimax on notice of what is prohibited. Cf.
Jake’s, Ltd., Inc. v. City of Coates, 284 F.3d 884, 890 (8th Cir. 2002) (rejecting an
argument that an ordinance conferred unbridled discretion by authorizing the
revocation of a license if the licensee was “a menace to the health, safety, or general
welfare of the community” because the ordinance’s language resembled the
definition of a public nuisance “long known to the law”); ChemSol, LLC v. City of
Sibley, 386 F. Supp. 3d 1000, 1019 (W.D. Iowa 2019) (rejecting a facial vagueness
challenge to an odor ordinance that prohibited the creation of “noxious exhalations,
offensive smells or other annoyances” where that language tracked a state statute’s
definition of a public nuisance); see also Restatement (Second) of Torts § 821B cmt.
b (noting that public nuisances at common law “included interference . . . with the
public comfort, as in the case of widely disseminated bad odors, dust and smoke”).
“This is not the case,” then, “of ‘wholly subjective judgments without statutory
definitions, narrowing context, or settled legal meanings.’” Metro. Omaha Prop.
Owners Ass’n v. City of Omaha, 991 F.3d 880, 887 (8th Cir. 2021) (citation
omitted).
Furthermore, Sanimax received a warning letter stating that the City had
received “a number of complaints regarding offensive odors being emitted” by its
facility, in violation of § 110-142, that were verified by SEH using a Nasal Ranger
olfactometer. The letter further instructed that compliance with § 110-142 required
Sanimax to “cease[] and desist[] from emitting offensive odors, specifically, odors
that are detectable at a level of 7 odor units or higher, as measured from a location
not on the Sanimax property.” Accompanying the letter was an email from the City
to numerous Sanimax representatives stating that the enclosed letter was intended to
provide “instructions regarding what is needed to bring the property into compliance
to avoid administrative citations.” These extra-statutory communications were also
sufficient to provide Sanimax “fair warning” that it was emitting odors in violation
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of the City Code. See Nygard, 39 F.4th at 520 (rejecting a vagueness challenge to a
zoning ordinance where a city inspector informed the appellant that a construction
permit was required under the ordinance).
Sanimax counters this finding by emphasizing language in the warning letter
stating that “[a] Nasal Ranger measurement is not necessary to establish that an odor
is offensive, detrimental to other properties, or unreasonably interferes with [the]
peace, comfort and enjoyment of another’s property.” But the three complaints that
precipitated the transmission of the warning letter, along with each of the 20
administrative citations that the City thereafter issued to Sanimax, were all verified
by SEH using a Nasal Ranger, which returned readings of at least seven odor units
for each complaint. The void-for-vagueness doctrine “does not permit a plaintiff to
‘speculat[e] about possible vagueness in hypothetical situations not before the
Court.’” Adam & Eve, 933 F.3d at 959 (alteration in original) (quoting Hill v.
Colorado, 530 U.S. 703, 733 (2000)). Accordingly, we are unpersuaded by
Sanimax’s conjectural assertion regarding actions that the City may take in the
future.
B.
We next consider whether the 2020 Odor Ordinance lends itself to arbitrary
enforcement. Sanimax contends that it does, as evidenced by the fact that the City
issued three administrative citations without adhering to the verification procedures
outlined in its warning and citation letters. On these occasions, SEH investigated
odor complaints by conducting field observations in the vicinity of the locations
provided in the complaints. The odor complaint response reports reveal that, due to
the generalized descriptions provided by residents in the complaints and unfavorable
wind conditions, field inspectors were unable to identify the sources of the odors.
SEH then expanded its investigation in each of these instances by conducting
monitoring upwind and downwind of five properties identified as historic odor
generators in a previous study, which included Sanimax, Twin City Hide, and Twin
City Tanning. SEH’s additional observations returned Nasal Ranger readings of at
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least seven odor units at Sanimax’s facility, leading to the issuance of citations
pursuant to the three separate findings.
Sanimax argues that the City issued these citations without confirming the
“source of the odor emission that precipitated the complaint” using a Nasal Ranger,
as SEH was unable to verify that Sanimax was the source of the odor complaints.
See South St. Paul, Minn. Code § 110-141 (defining “verified odor complaint”). We
fail to see how the City’s actions create an enforcement scheme “so standardless that
it authorizes or encourages seriously discriminatory enforcement.” Adam & Eve,
933 F.3d at 958 (quoting Fox Television, 567 U.S. at 253)). Perhaps the result would
be different if SEH conducted additional monitoring only at Sanimax’s facility, but
the record shows that SEH investigated five different properties that it had
previously identified as odor emitters and took objective measurements using a
Nasal Ranger near each site. SEH promulgated standard operating procedures in
2017, which were intended “to provide a methodical approach to responding to the
odor complaints.” This guidance describes precisely the events on which Sanimax
premises its argument:
If an odor is not detected at or near the odor complaint location, SEH
will conduct odor monitoring upwind and downwind of each of the five
potential odor generators. An odor source is identified as the odor
generator if odor monitoring downwind of the potential source is
greater than the odor strength upwind of the potential source.
Such directives “provide ‘explicit standards’ for [the City to] apply the law in
order to prevent arbitrary or discriminatory enforcement.” Thorburn v. Austin, 231
F.3d 1114, 1120 (8th Cir. 2000) (citation omitted). Furthermore, SEH apprised
Sanimax of its standard operating procedures in a 2017 meeting with the City, which
Sanimax’s environmental specialist relayed to other employees in a subsequent
email explaining that SEH would “check all odor points upwind or downwind of all
facilities . . . identified by the comprehensive odor study” if it was unable to detect
odors at the location provided in a complaint. The 2020 Odor Ordinance along with
the accompanying guidance and letters are thus “sufficiently clear that the
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speculative danger of arbitrary enforcement does not render” the Ordinance
impermissibly vague. United States v. Birbragher, 603 F.3d 478, 489 (8th Cir.
2010). Sanimax attempts to establish a history of arbitrary enforcement by asserting
that the City has cited only its property for noncompliance and no other odor
emitters. The City has in fact issued a warning letter to Twin City Hide and Twin
City Tanning for emitting offensive odors; that the City has not had occasion to issue
an administrative citation demonstrates that these businesses have complied with the
odor prohibition enumerated in § 110-142, as evidenced by the absence in the record
of any subsequent verified odor complaints.
Sanimax also contends that the 2020 Odor Ordinance’s two-track enforcement
mechanism is devoid of an objective standard by which the City will place an odor
emitter on the “friendly” Track One, which requires a property labeled as a
Significant Odor Generator to develop an odor management plan in collaboration
with the City, or the “more punitive” Track Two, which empowers the City to
employ the administrative citation process used for code enforcement actions. City
Council planning documents state that the decision is “solely at the City’s
discretion,” which will “decide whether the business is making a good faith effort to
collaborate” or instead “decline[s] to work with the City.”
The discretion afforded to the City in this context is not in itself fatal to the
2020 Odor Ordinance, as the “enforcement of all laws involves some discretion.”
Thorburn, 231 F.3d at 1121. Importantly here, the Ordinance “plainly demarcate[s]
the range of penalties that [the City] may seek and impose.” United States v.
Batchelder, 442 U.S. 114, 126 (1979). In Batchelder, the Supreme Court rejected a
vagueness challenge to two criminal statutes that proscribed identical conduct but
affixed disparate penalties to each offense, noting that the provisions
“unambiguously specify the activity proscribed and the penalties available upon
conviction.” Id. at 123. “Although the statutes create uncertainty as to which crime
may be charged and therefore what penalties may be imposed,” the Court found,
“they do so to no greater extent than would a single statute authorizing various
alternative punishments.” Id.-30-
The 2020 Odor Ordinance is, in essence, a single statute authorizing various
alternative punishments. Put differently, both tracks of enforcement operate as
potential remedies for a violation of the underlying odor prohibition in § 110-142, a
provision which we found above was sufficient to provide Sanimax with “fair
warning of the criminality of [its] own conduct.” Nygard, 39 F.4th at 519 (citation
omitted). This, together with the Ordinance’s specification of the potential penalties
that are applicable to a property that violates § 110-142, satisfies the requirements
of due process. See Batchelder, 442 U.S. at 123. The City Code also provides an
appeal procedure for businesses classified as Significant Odor Generators under
Track One and for those administratively cited under Track Two, see South St. Paul,
Minn. Code §§ 110-145, 38-107, which we have previously found counsels against
a finding of arbitrary enforcement, Metro. Omaha, 991 F.3d at 887 (noting that an
ordinance appeal procedure “acts as a check on wrongful decisions or orders”). In
sum, Sanimax’s void-for-vagueness claim fails.
V.
For the foregoing reasons, we affirm the judgment of the district court.
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