Judge rules Orono can't ban wind turbines

Another Hennepin County judge has weighed in on a lengthy, litigious quarrel over a wind turbine on Lake Minnetonka, deciding that the city of Orono can't completely ban them.

Jay and Kendall Nygard, along with their wind energy company, sued the city in May, arguing that it's their right to have a 29-foot-tall turbine in their back yard on the lake's West Arm and that the city's ordinance banning it overstepped state law.

Last week, Hennepin County Judge Philip Bush agreed that state law pre-empts the city's code and ruled that the city is prohibited from banning wind energy conversion systems starting Nov. 24, though state statute allows cities to put requirements on them.

"State law trumps city law — I'm just glad the judge chose to recognize that," Jay Nygard said Tuesday.

On Monday, the Orono City Council passed a moratorium on small wind conversion systems while the city's Planning Commission drafts a new ordinance regulating them. The Planning Commission is expected to review the new ordinance Nov. 17.

"While the city disagrees with it and wants more local control, we're not interested in projected litigation," City Attorney Soren Mattick said of the judge's decision.

The city has long contended that the wind generator violates city ordinances and puts the Nygards' neighbors and properties in the small neighborhood at risk. The 750-pound turbine is mounted on a galvanized pole on the Nygards' lot, less than a third of an acre, and is less than 5 feet from a neighbor's property.

In 2010, the city denied their building permit application, then sued the Nygards when they built the wind generator. The case made its way through district court to the Minnesota Court of Appeals, which ruled in the Nygards' favor but returned the case to the lower court for further consideration.

Last year, a judge ruled in the city's favor, saying the Nygards' generator endangered public safety; the Nygards have now appealed that case to the state Court of Appeals.

While that case continues, the city put a new ordinance in place last December prohibiting wind energy conversion systems within any of its zoning districts. But last week, Bush said in his ruling that the state statute doesn't allow the city to completely ban small wind energy conversion systems. Instead, he wrote, the city is "free to enact reasonable requirements" on the siting and construction of them for safety, noise or other issues.

That's what the city plans to do, which could still affect the Nygards' wind turbine and future ones in Orono. While Mattick said the city understands environmental advantages to wind turbines, "we've also seen the side effects of it — the flicker and glare of it on the neighbors next door … The city plans to weigh the disturbances of that."

Over the past three years, wind turbines and related issues have sparked 15 lawsuits between the Nygards, several neighbors and the city, ranging from property issues to defamation. In addition to the city's case, another county judge ordered the Nygards to remove the turbine, saying it's a public nuisance to his neighbors. The Nygards are seeking a new trial in that case.

Since the shoreline saga started, he's added three smaller wind turbines to his house and yard.

Kelly Smith • 612-673-4141 Twitter: @kellystrib