Posted on October 25, 2012 by SARAH JOHNSON PHILLIPS on the Stoel Rives RENEWABLE+LAW blog.
Via my colleague THOMAS BRAUN:
Earlier this week, the Minnesota Court of Appeals weighed in on a long-running dispute between the City of Orono and city resident Jay Nygard over the installation of a small wind turbine on Mr. Nygard's property. The dispute began two years ago when the city denied Mr. Nygard a permit on the ground that wind turbines are not listed as a permitted, accessory or conditional use in the city's zoning ordinance. Despite the denial of his permit application, Mr. Nygard proceeded to construct the wind turbine anyway. After discovering the turbine, the city commenced an action in the district court for a declaratory judgment that the wind turbine did not comply with the city's zoning ordinance. Mr. Nygard followed with his own action challenging the city's denial of his application. The district court ruled in favor of the city and concluded that the city's ordinance unambiguously set forth an exhausive list of lawful accessory uses, which does not include wind turbines. Mr. Nygard appealed.
In its ruling, the Minnesota Court of Appeals disagreed with the district court's interpretation of the city ordinance. The court held that the language of hte ordinance was not definitive as to whether the list is exhaustive and, since the city has allowed numerous uses in the past that are not expressly mentioned in the city ordinance, such as flagpoles, basketball hoops, and clotheslines, the city could not single out wind turbines. Thus, the court held that the city erred in denying Mr. Nygard's permit application.
This decision is the latest saga in the debate in Minnesota over wind energy siting standards and setbacks. This case demonstrates the particular challenges of siting wind turbines (even small ones) in an urban area without the benefit of an ordinance that provides clear standards.
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