                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2016).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-1191

                                  State of Minnesota,
                                       Appellant,

                                          vs.

                                Kim Marie Halvorson,
                                    Respondent.

                                Filed January 9, 2017
                                      Affirmed
                                  Bjorkman, Judge


                             Rice County District Court
              File Nos. 66-CR-15-1718, 66-CR-15-2013, 66-CR-15-2471

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Faribault, Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota; and

Gary Voegele, Faribault, Minnesota (for respondent)

      Considered and decided by Bjorkman, Presiding Judge; Reilly, Judge; and

Connolly, Judge.
                         UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant challenges the district court’s dismissal of all but two charges against

respondent, arguing that the void-for-vagueness doctrine does not apply and that there is

probable cause to believe respondent violated a conditional-use permit. We affirm.

                                          FACTS

       Bio Wood Processing, LLC operates a wood-grinding facility on approximately

nine acres of land in Rice County. Bio Wood grinds wood to make animal bedding in the

form of mulch and sawdust. The operation takes place in two buildings located under one

roof and separated by a firewall. The west building houses the grinder; the finished product

is transported by an enclosed conveyor belt to the east building for loading into semi-

trailers. A dust collector is attached to the grinder and extracts 97% of the dust produced

during the grinding process.

       Respondent Kim Halvorson owns Bio Wood. On October 8, 2013, Halvorson

obtained an amended conditional-use permit (CUP) on behalf of the company. Condition

8 of the CUP states that “[d]ust abatement methods shall be required and enforced when

processing materials or hauling materials to or from the site.”

       On July 9, August 11, and September 29, 2015, appellant State of Minnesota filed

complaints charging Halvorson with multiple violations of CUP condition 8. The three

complaints reference reports of dust emissions at the facility made to law enforcement on

various dates, and allege that noncompliance with condition 8 violates Rice County Zoning

Ordinance §§ 503.10F (making it a violation for a CUP holder to “maintain, permit or


                                             2
otherwise allow any non-compliance with the provisions of [a conditional use permit]”),

and .10G (making it a violation for a CUP holder to “instruct, permit or otherwise allow a

subordinate person or entity to violate the provisions of this ordinance or the conditions of

the permit”) (2015). The parties agreed to consolidate the three cases, and Halvorson

moved to dismiss all of the charges.

       During the contested omnibus hearing, Halvorson and Bio Wood manager Andrew

Barna described the layout of the facility, the grinding operation, and the measures Bio

Wood implemented to reduce dust emissions. These measures include: (1) a dust collector

with seven points of suction overhead in both the west and east part of the building, (2) a

40-foot duct that runs down the length of the east part of the building with multiple suction

points to collect additional dust, (3) an enclosed conveyor system under vacuum suction

that moves the final sawdust product under a dust hood from the west to the east building,

(4) the building itself where all grinding activities are conducted, (5) the use of calcium

chloride on the driveway to reduce dust from being blown off-site, and (6) the use of tarps

to cover semi-trailers leaving the site with finished product.

       The district court granted Halvorson’s motion in part, dismissing all but two charges

in each complaint on the basis that condition 8 of the CUP is unconstitutionally vague and

the charges are not supported by probable cause.1 The state moved for reconsideration,

which the district court denied. The state appeals.




1
  The remaining charges relate to activities conducted wholly outside Bio Wood’s
buildings, where no dust-abatement methods are employed.

                                              3
                                      DECISION

I.     Dismissal of all but two charges in each complaint has a critical impact on the
       outcome of the trial.

       When the state appeals a pretrial order, we will reverse “only if the state

demonstrates clearly and unequivocally that the district court erred in its judgment and,

unless reversed, the error will have a critical impact on the outcome of the trial.” State v.

Trei, 624 N.W.2d 595, 597 (Minn. App. 2001), review dismissed (Minn. June 22, 2001).

“Dismissal of a complaint based on a question of law satisfies the critical impact

requirement.” State v. Dunson, 770 N.W.2d 546, 550 (Minn. App. 2009), review denied

(Minn. Oct. 20, 2009).

       The district court applied the law to the facts alleged and presented during the

omnibus hearing, concluding that the state could not prosecute Halvorson as a matter of

law. The district court noted that the record includes reports of dust emissions on the dates

alleged in the complaints, but also undisputed evidence that Bio Wood was using several

dust-abatement methods on those dates. After concluding that condition 8 of the CUP does

not require zero dust emissions, the district court ruled that the prosecution is barred under

the void-for-vagueness doctrine and that probable cause is lacking given the undisputed

evidence of the dust-abatement measures in place at all relevant times. Because the district

court dismissed the charges based on a legal determination, the state may take this appeal.2


2
 The state argues that dismissal of eight of the ten charges in each complaint has a critical
impact on the outcome of the trial. Because dismissal of even a single charge may establish
critical impact, we conclude that critical impact exists here. State v. Koenig, 649 N.W.2d
484, 487 (Minn. App. 2002) (“[E]ven an order dismissing only one count of a multi-count
complaint may have critical impact.”), rev’d on other grounds, 666 N.W.2d 366 (Minn.

                                              4
II.    Condition 8 of the CUP is void for vagueness.

       The United States and Minnesota Constitutions provide that a person shall not be

deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV,

§ 1; Minn. Const. art. I, § 7. The right to due process includes the right to not be convicted

and punished based on an unconstitutionally vague statute. Dunham v. Roer, 708 N.W.2d

552, 567 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006).               The void-for-

vagueness doctrine “requires that a penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement.” State v.

Bussmann, 741 N.W.2d 79, 83 (Minn. 2007) (quotation omitted). At its core, the doctrine

is designed to ensure that individuals are warned about the criminal consequences of their

conduct.   Jordan v. De George, 341 U.S. 223, 230, 71 S. Ct. 703, 707 (1951).

“Constitutional challenges are questions of law, which we review de novo.” Bussmann,

741 N.W.2d at 82.

       The state argues that a CUP is not subject to void-for-vagueness analysis because it

does not reflect a legislative function. We are not persuaded. Halvorson was charged with

violating two provisions of the Rice County Zoning Ordinance. An ordinance is subject to

constitutional challenge on vagueness grounds. See Hard Times Café, Inc. v. City of

Minneapolis, 625 N.W.2d 165, 171-72 (Minn. App. 2001) (holding that city ordinance




2003); State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991) (finding that the
dismissal of only one of two charges had a critical impact on the outcome of the trial).
Halvorson does not contest that critical impact exists.

                                              5
allowing business-license revocation for good cause was not void for vagueness). The

United States Supreme Court has held that both the crime, and the elements constituting it,

must be so clearly expressed that the ordinary person can intelligently choose, in advance,

a lawful course of conduct. Connally v. Gen. Const. Co., 269 U.S. 385, 393, 46 S. Ct. 126,

128 (1926). The two ordinance provisions at issue incorporate condition 8 of the CUP and

criminalize the failure of the CUP holder or her subordinates to comply with the condition.

Minn. Stat. § 394.37, subd. 2 (2014) (stating that violation of an ordinance is a

misdemeanor). In other words, proof that Halvorson violated condition 8 is a necessary

element of the charged crimes. Accordingly, the void-for-vagueness doctrine applies.3

       Having concluded that the void-for-vagueness doctrine applies, we turn to the

substance of Halvorson’s constitutional challenge.        Condition 8 states that “[d]ust

abatement methods shall be required and enforced when processing materials or hauling

materials to or from the site.” Halvorson asserts that condition 8 did not apprise her that

the operations within Bio Wood’s building were prohibited.

       The state first argues that Halvorson forfeited her vagueness challenge by failing to

bring the issue to this court by a writ of certiorari at the time the amended CUP was issued.

We disagree. When the challenge is to the state’s interpretation of an ordinance, rather

than its issuance, certiorari review is not the appropriate remedy. See Press v. City of

Minneapolis, 553 N.W.2d 80, 83-84 (Minn. App. 1996) (stating that district court had



3
  We have previously applied the void-for-vagueness caselaw to non-legislative acts. State
v. Phipps, 820 N.W.2d 282, 286 (Minn. App. 2012) (applying the void-for-vagueness
doctrine to an order for protection).

                                             6
jurisdiction to decide property owner’s challenge to city’s enforcement of an ordinance).

Moreover, it was only after the state asserted misdemeanor charges against Halvorson for

violating condition 8 that she learned the state interpreted condition 8 differently than she

did.   Under these circumstances, we conclude that Halvorson did not forfeit her

constitutional challenge by failing to appeal the issuance of the amended CUP.

       The state next argues that condition 8 is not vague because “dust abatement” means

zero dust emissions. Halvorson contends that “dust abatement” means reduced dust

emissions. When determining the plain meaning of an undefined word, we look to the

dictionary definition and apply it in the context of the statute. State v. Haywood, 886

N.W.2d 485, 488 (Minn. 2016). The dictionary defines “abatement” as “[r]eduction in

amount, degree, or intensity; diminution.” The American Heritage Dictionary of the

English Language 2 (5th ed. 2011).        This definition is consistent with Halvorson’s

interpretation of “abatement” but inconsistent with the state’s. Because “dust abatement”

is susceptible to different interpretations, condition 8 did not apprise Halvorson that she

could be criminally prosecuted for using dust-reduction methods that did not totally

eliminate dust emissions. In sum, condition 8 is void for vagueness because it did not warn

Halvorson that her conduct was unlawful.

       Because we conclude that dismissal of the subject charges is constitutionally

required, we need not address the issue of probable cause. But we note that the state may

not appeal dismissal of a complaint for lack of probable cause based on insufficient

evidence. State v. Duffy, 559 N.W.2d 109, 111 (Minn. App. 1997).

       Affirmed.


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