New legal filings in Orono wind energy case 

Jay and Kendall Nygard want to send Orono officials back to school.

A request that the City Council and staff attend classes about alternative energy sources as well as continuing legal education classes about the powers of municipalities are a part of the Nygards’ most recent legal filing. Paperwork was filed Tuesday, April 28, seeking that Orono officials be found in contempt, claiming “continual disobedience” of an Oct. 23 court order. City officials, however, say they have followed the judge’s order and no schooling is necessary.

Leading up to the order, no small wind energy conversion systems “(SWECS)” were allowed in Orono. The order, handed down by District Court Judge Philip D. Bush, required city officials to stop enforcing the ban on SWECS. Bush gave the city 30 days before his order took effect. He also noted, however, that Orono officials had the right “to regulate the siting and construction of SWECS for such things as safety, noise and visual impact etc.”

In response, the City Council instituted a temporary moratorium on the construction of SWECS until a new ordinance regulating SWECS was adopted. The council adopted SWECS regulations April 13, and councilors also lifted the temporary moratorium.

The April 28 filing, made by the Nygards, their company Go Green Energy, LLC, and Micro Wind Advisory Council, takes issue with the moratorium, the city’s definitions of wind energy conversion systems and some of the regulations that were put on where SWECS may be constructed in the city.

Erik Kaardal, attorney for the Nygards, said that he asked his clients if they wanted to sue the city over the moratorium when it lasted longer than the 30 days that the judge gave city officials before they were required to stop enforcing the city-wide SWECS ban. The Nygards decided to give city officials time to create a new ordinance, he said.

“It is a clear violation of the injunction,” Kaardal said of the moratorium.

Orono Attorney Soren Mattick countered that city officials had the right to institute a temporary moratorium on the structures.

“The moratorium passed by the city of Orono on Oct. 27, 2014, did not violate Judge Bush’s order,” he said. “Judge Bush’s order did not prohibit the city from exercising its zoning authority contained in Minnesota Statute 462.355 Subdivision 4.”

That statute gives cities the authority to adopt interim ordinances, including such ordinances that “restrict, or prohibit any use.”

The Nygards and their lawyer also contend that the city’s new ordinance is not valid because it is more restrictive than a state statute that allows people to have SWECS. They say that the new Orono ordinance only defines wind energy conversion systems as wind turbines, while state statute chapter 216F defines wind energy conversion systems as “any device such as a wind charger, windmill, or wind turbine and associated facilities that converts wind energy to electrical energy.”

The new Orono ordinance defines wind energy conversion systems as “an electrical generating facility that consists of a wind turbine, feeder line(s), associated controls and may include a tower.”

Mattick said that the city’s ordinance is broader than state statute.

“The definition of a WECS includes wind turbines; and while the ordinance doesn’t mention wind chargers and windmills, the city has defined wind turbines expansively as, ‘any piece [Mattick’s emphasis] of electrical generating equipment that converts the kinetic energy of blowing wind into electrical energy through the use of airfoils or similar devices to capture the wind.’ The city’s definition of wind turbines includes more devices than wind chargers and windmills and therefore doesn’t violate Judge Bush’s order,” he said.

Additionally, the filing takes issue with several of the regulations that city officials put on SWECS in the city’s new ordinance. Those include that SWECS are prohibited on residential properties less than 10 acres, on commercial properties less than five acres and in the shoreland overlay district.

Bush’s order referred to state statute 216F.02, which states in part that, “Any person may construct an SWECS …”

Jay Nygard said he questioned who the council believes “any person” is. He said that he cannot have a SWECS on his property because it is less than 10 acres and he lives too close to the lake.

Mattick said that city officials acted within their powers with the regulations that were approved.

“Enacting a zoning ordinance is a legislative act. A legislative act must be upheld unless the Nygards can prove the ordinance is not supported by any rational basis related to promoting the public health, safety or welfare of a community,” Mattick said. “The city studied the issue, received public comment and implemented an ordinance with reasonable performance standards regarding SWECS. The need to impose reasonable regulations on SWECS is highlighted by the fact that the Nygards wind generator has been declared a nuisance in a separate court action. Again, Judge Bush’s order did not prohibit the city from enacting an ordinance that regulates SWECS. Judge Bush’s order prohibits the city from banning all SWECS, and the current ordinance complies with this requirement.”

If the city is found to be in contempt of Bush’s order, the Nygards would like for city staff and the city council to be ordered to attend continuing legal education classes on municipalities and how they are restricted by court injunctions, state statutes and court injunctions based on interpretation of state statutes. Additionally, they want city officials to also take classes on renewable energy.

Mattick said classes are unnecessary.

“The city is well versed on the law as it relates to injunctions and the appropriate application of state statutes,” he said. “There has been no violation of Judge Bush’s order and the steps taken by the city have been in compliance with his order – by adopting an ordinance that is not a complete ban on SWECS and addresses the concerns of the city. There is no basis or need for training when what the city has done is what was expressly permitted by Judge Bush’s order.”