Jay and Kendall Nygard wanted to get some wind power generation on their Orono property. The City said, “No.” The Nygards, in effect, responded, “Stop us.” The City, in effect, stopped them (with the help of a favorable ruling from Hennepin County Judge Marilyn B. Rosenbaum).
The city denied the Nygards’ permit application based on its interpretation of section 78-329 of the Orono City Code, which governs “accessory uses” within the relevant district. The accessory uses, generally speaking, are the kinds of things we all expect to be able to have in our yards (garden shed, certain kinds of signs, satellite dishes, and so on).
At issue is whether the list is exclusive or not. Wind turbines on not on the list. On the other hand,
At oral argument, the city conceded that it has interpreted section 78-329 in other situations to allow accessory uses that are not expressly mentioned therein…structures such as flagpoles, basketball hoops or clotheslines…
In light of the city’s admittedly inconsistent
manner of interpreting section 78-329, we cannot uphold the city’s denial of the Nygards’ permit application or the district court’s rationale for entering judgment in favor of the city.
Finally, note that there are windmills and then there are windmills. In the Nygards’ case, the Court of Appeals described the windmill as “two Savonius-style turbines that are mounted on a vertical shaft and enveloped by three Darrieus-style aerofoils.” This description is singularly unhelpful for those unfamiliar with wind energy technology.
Some years ago, I listened to U.S. Court of Appeals Judge Richard A. Posner berate appellate lawyers before him at oral argument for not thinking about including a pictorial representation of the scaffolding at the center of the litigated dispute. Apparently the Nygards’ counsel, Milton E. Nordmeyer, did a good job, however, of helping the Court understand exactly what the City of Orono and the Nygards were talking about.