Judge: Orono ban of small wind turbines is unlawful 

Beginning Nov. 24, Orono officials must stop enforcing the ordinance that prohibits wind turbines in the city, a judge has ruled.

The ruling by District Judge Philip D. Bush was issued Thursday, Oct. 23. He wrote that he was giving the city about 30 days before the injunction was to go into effect “so that the city may adequately protect its interests.’

Orono residents Jay and Kendall Nygard as well as Go Green Energy, LLC and Micro Wind Advisory Council brought the case to court. Jay Nygard is an owner of Go Green Energy. The group claimed that Orono’s ordinance prohibiting wind energy conversion systems in all of the city’s zoning districts is in conflict with state law. Bush agreed.

“I’m very happy and thrilled,” Jay Nygard said. “This will help support everyone’s rights in the state.”

“The city council was disappointed with Judge Bush’s order, but has decided not to appeal the ruling,” Orono City Attorney Soren Mattick said. “Rather, the city is currently working on revising the city code provision in question so that it is consistent with the District Court’s order.”

Mattick added that the council decided to place a temporary moratorium on wind turbines while it and the city’s planning commission work to change the ordinance.

The case focused on the wording found in Minnesota Statute 216F.02, which deals with small wind energy conversion systems. The Nygards, Go Green Energy and Micro Wind Advisory Council claimed that 216F.02(b) pre-empted Orono’s ordinance. That part of the chapter states, “Any person may construct an SWECS without complying with chapter 216E or this chapter.”

Chapter 216E is the Minnesota Power Plant Siting Act. Other parts of chapter 216F deal with large wind energy conversion systems.

City officials argued that the next line of the chapter, 216F.02(c) allowed them to prohibit SWECS in Orono. That part states, “Nothing in this chapter shall preclude a local governmental unit from establishing requirements for the siting and construction of SWECS.”

The city also argued that 216F.02(b) just signified that SWECS are not subject to the same regulations that govern LWECS, Bush wrote in his order.

“If the legislature had intended merely to exempt SWECS from the regulatory framework governing LWECS, the statute would provide that ‘SWECS are not subject to the requirements of chapter 216E or this chapter’ or language to that effect,” Bush wrote. “Instead, the statute provides that ‘any person may construct an SWECS without complying with chapter 216E or this chapter.’” Bush added the emphasis.

“Given the focus on what ‘any person may’ do, the statutory language signifies that the legislature intended to authorize and empower people to harvest wind energy on a small scale,” he wrote.

Bush went on to note that his interpretation is consistent with the Legislative Energy Commission’s stance on promoting renewable energy. Among the duties assigned to the commission were to “develop a framework for the state of Minnesota to transition to a renewable energy economy that ends Minnesota’s contribution to greenhouse gasses from burning fossil fuels within the next few decades.”

Based on that interpretation, Bush wrote that the plaintiffs were “correct in asserting that the ordinance forbids what the statute permits.”

There was still the question of whether 216F.02(c), which allows local governments to create “requirements for the siting and construction of SWECS,” included the power to totally ban SWECS.

“If the legislature had intended that the authority to regulate included the power to completely ban SWECS, the legislature could and would have said so clearly in the statute,” Bush wrote in his order. “The legislature limited the authority to regulate to ‘establishing requirements for the siting and construction of SWECS.”

He also referred to the case Orr V. City of Rochester that went in front of the Minnesota Supreme Court in 1935.

“The Minnesota Supreme Court has previously held: ‘The weight of authority seems to be, and with good reason, that the delegation of the power to regulate and license does not carry, by implication, the power to prohibit. The argument has been put thus: The power to regulate does not properly include the power to suppress or prohibit, for the very essence of regulation is the existence of something to be regulated,’” Bush wrote.

While Bush ruled that Orono officials cannot completely ban on SWECS within the city, he did write that officials still have the authority “to regulate the siting and construction of SWECS for such things as safety, noise and visual impact etc.

“What is not before this Court is what reasonable regulations are permissible,” Bush wrote. “This Court is taking no position on whether a future city ordinance which addresses the city’s concerns but is not a complete ban is legally enforceable.”

Jay Nygard, who currently has four wind turbines on his property including a 29-foot tall turbine, one that is about three feet tall attached to his house and two by Lake Minnetonka, said that he has some concerns about the kind of regulations that might be written into Orono’s ordinance, but he would welcome reasonable regulations on SWECS. He said that when he was installing his first turbine about four years ago, he had no guidance about issues such as where to place it on his property. Good regulations could help Orono residents in the future have an easier time installing turbines, Nygard said.

Mattick said that the Orono City Council has directed the planning commission to review SWECS at its Nov. 17 meeting. He also said that the moratorium on SWECS will be repealed once the new ordinance is adopted.

“The city of Orono is committed to implementing ordinances for the benefit of the whole community,” Mattick said. “The city will work to achieve the appropriate balance of allowing SWECS within the city of Orono, provided certain performance standards are met.”

Previous and ongoing legal issues

The Nygards and city officials have been at odds over wind turbines since 2010 when the couple was denied a building permit to construct a turbine that was about 20 feet tall on their property. Orono officials said they denied the permit because wind turbines were not included in the city’s code. In December of 2010, Melanie Curtis, who was then Orono’s planning and zoning coordinator, said that city officials had no way to permit something that isn’t laid out in the city’s code.

Jay Nygard, a former Orono city councilor and planning commissioner, disagreed with that assessment. He said that there was nothing written in code that prohibited him from installing a turbine. After receiving the denial, Jay Nygard installed the buried four-foot footing for the turbine. A neighbor complained to the city and in November of 2010 he received a stop-work order from the city.

The city eventually filed a lawsuit against the Nygards in March of 2011 after Jay Nygard had installed the wind turbine pole and shortly thereafter the wind turbine itself. The Nygards filed their own lawsuit against the city the following month claiming their civil rights had been violated and that they had been harassed by the city.

In the fall of 2012, the Minnesota Court of Appeals ruled that Orono officials must again consider the Nygards’ permit application. City officials later filed for a summary judgment to have the Nygards remove the turbine claiming that they were still in violation of city code. At that time, Jay Nygard wrote that the turbine was “up, certified, inspected and operating and will never come down again.”

The city was granted its summary judgment May 10, 2013 and the Nygards were ordered to remove the wind generator, concrete pad and footings. The Nygards filed an appeal in June of 2013 and a couple of days later they also filed a motion to stay the order to remove the items.

In an order dated June 25, 2013, District Judge Marilyn Brown Rosenbaum wrote that the Nygards’ wind generator must be disassembled because it posed a threat to public safety. The order notes that the Nygards have a wind generator that is approximately nine feet wide and 29 feet tall, which is six feet taller than the original wind generator that was on their property in 2010. The order also notes that the current generator weighs about 650 pounds and the pole supporting weighs an additional 700 pounds. The structure is located about 4.4 feet from the neighboring property. Rosenbaum wrote that the wind generator had not been inspected by the city to ensure that it is structurally sound.

The Nygards had until Friday, May 16 of this year to remove the turbine and pole and to dig up and remove the footing. They did not comply and are in contempt of the order. The couple went to court this summer facing a possible sentence of up to six months in jail and a $250 fine. The sentence was stayed, though, and the couple has not yet been back in court on that issue.

The Nygards are also being sued by some neighbors who claim that the 29-foot tall turbine is an eyesore and is taking away their enjoyments of their property.

Jay Nygard said that he hopes the other litigation against him will go away because of Bush’s recent ruling.