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Minnesota appellate court finds zoning language may allow wind turbine  

Credit:  Minn. Appellate Court finds Zoning Language may Allow Wind Turbine | Posted by: Patricia Salkin | Law of the Land | October 30, 2012 | lawoftheland.wordpress.com ~~

Nygard applied to the City of Orono, Minnesota for a permit to construct a small wind turbine in his back yard.  The City denied the application, claiming that since the zoning regulations do not address wind turbines, they are prohibited.  Nygard constructed the turbine anyway, and both parties sought relief.  The trial court found the City’s denial was valid.  The Minnesota Court of Appeals reversed, finding the ground for denial was invalid, as the City allows basketball hoops, clotheslines and other structures, yet these are likewise not mentioned in the zoning regulations.

The City denied Nygard’s application by letter, claiming the turbine was prohibited because it was not listed “as a permitted, accessory or conditional use within” the LR-1B zone district.  The City’s zoning regulations provide nine different types of accessory uses that are permitted within the LR-1B zone district.  The zoning regulations also separately define accessory uses or structures.  Despite the denial and a cease and desist order during construction, Nygard erected the residential wind turbine.  The turbine stands twenty feet tall, is below the roofline of his home, and all moving parts of the turbine are at least seven feet above the ground.

The trial court granted summary judgment in favor of the City and ordered Nygard to dismantle the turbine.  Nygard appealed, asserting the City and the trial court erred in making two related findings: that the list of accessory uses was exhaustive, and the failure to mention wind turbines on this list resulted in a wind turbine prohibition.  The court determined that Nygard’s case boiled down to whether the City was “mistaken as to applicable law.”  This was a question of law subject to de novo review.  The court provided that in undertaking their review of the law, the court must give words their plain meaning, zoning ordinances should be “construed strictly against the” City, and the zoning ordinance should be construed in light of the underlying policy.

The court first looked to the plain meaning of the zoning language.  The zoning regulations provide that nine uses “shall be permitted” as accessory uses within the LR-1B zone district.  However, the zoning regulations provide that in another land use district, “no land or structure shall be used except for” certain listed uses.  The court found that since the code used more restrictive language than “shall” in the other section, it was ambiguous whether the LR-1B accessory use provision was truly an exhaustive list.

The court then found extrinsic sources of evidence in support of Nygard’s contention that the LR-1B accessory use provision was nonexhaustive.  Specifically, at oral argument, the City’s appellate counsel admitted that the City allows uses in the LR-1B district not listed as an accessory use, when the uses are “common features of suburban residential neighborhoods . . . customarily incidental to a residence.”  The court determined this conduct undermined the City’s assertion that the list was exhaustive.  Thus, the court could not uphold the permit denial.

The court then addressed the second principle of statutory construction, which requires that the zoning language be construed strictly against the City.  Under this factor, the court is to give the language the least restrictive interpretation.  Since the City applied the accessory use language less restrictively to other land owners, the court gave the language this less restrictive meaning, and found it did not support the denial of Nygard’s permit.

Lastly, the court stated that it could not evaluate the zoning language in light of the underlying policy, as the City failed to present any evidence concerning the legislative intent behind the LR-1B accessory use provision.

The Court of Appeals reversed and remanded the decision of the trial court.  The court found that summary judgment should not have been granted in favor of the City, as the zoning language did not include an exhaustive list of permitted accessory uses, and, thus, could not be the sole reason for the denial of Nygard’s permit application.  The court remanded the matter back to the City for further consideration of Nygard’s application.

City of Orono v. Nygard, A12-0711, File No. 27-CV-11-5626 (Minn. Ct. App., 10/22/2012).

The opinion can be accessed here.

Source:  Minn. Appellate Court finds Zoning Language may Allow Wind Turbine | Posted by: Patricia Salkin | Law of the Land | October 30, 2012 | lawoftheland.wordpress.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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