STATE OF MINNESOTA

DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
_________________________________________________________________________________
Go Green Energy, LLC, Micro Wind
Advisory Council, an association, Jay
Nygard and Kendall Nygard,

Plaintiffs,

v.

City of Orono,

Defendant.
_________________________________________________________________________________

The above-captioned matter came before the undersigned Judge of District Court
on July 28, 2014 upon cross-motions for summary judgment.
Erick G. Kaardal, Esq., appeared on behalf of Plaintiffs.
George C. Hoff, Esq., and Jared D. Shepherd, Esq., appeared on behalf of
Defendant.
Based upon all the files, records, and proceedings herein, the Court makes the
following:
ORDER
1. Plaintiffs motion for summary judgment is GRANTED.
2. Defendants motion for summary judgment is DENIED.
3. It is hereby declared that state law preempts Section 78-1379(f) of the
City of Oronos Code of Ordinances.
4. Beginning November 24, 2014, the City of Orono is hereby enjoined from
enforcing Section 78-1379(f) of its Code of Ordinances.
Court File No. 27-CV-14-7419
The Honorable Philip D. Bush
ORDER GRANTING SUMMARY
JUDGMENT IN FAVOR OF
PLAINTIFF
Filed in Fourth J udicial District Court
10/23/2014 1:41:31 PM
Hennepin County Civil, MN
27-CV-14-7419
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5. The attached Memorandum is made a part hereof.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:


Dated: October 23, 2014
Philip D. Bush
Judge of District Court
10/ 23/ 2014 11: 46: 49 am
Si gPlus1
27-CV-14-7419
1

MEMORANDUM
Plaintiffs commenced this declaratory judgment action against the Defendant
City of Orono (City) seeking a declaration that state law preempts the Citys
ordinance disallowing the use of wind energy conversion systems anywhere within the
City. The parties agree that there are no material facts in dispute and the issue is ripe
for a decision on the merits. The matter is before the Court on cross-motions for
summary judgment. For the reasons set forth below, Plaintiffs motion for summary
judgment is granted and Defendants is denied.
I. Background
Plaintiffs Go Green Energy, LLC, Micro Wind Advisory Council, Jay
Nygard and Kendall Nygard seek a declaration that state law preempts Section 78-
1379(f) of the Citys Code of Ordinances (hereinafter, the Ordinance), which provides:
Wind energy conversion systems are not an allowed use or structure within any zoning
districts in the city.
Minnesota has enacted a statute relating to wind energy conversion systems,
which are defined by statute as any device such as a wind charger, windmill, or wind
turbine and associated facilities that converts wind energy to electrical energy.
1
Minn.
Stat. 216F.01, subd. 4. The statute distinguishes large wind energy conversion
systems (LWECS) from small wind energy conversion systems (SWECS).
2
See id.,
subds. 2-3. At issue in this case is SWECS.

1
Section 78-1379(c)(4) defines a wind energy conversion system as [a]n electrical generating
facility that consists of a wind turbine, feeder line(s), associated controls and may include a tower.
The parties have not posited that the distinction between the two definitions has any relevance.
2
The threshold between LWECS classification and SWECS classification is a nameplate capacity
of 5,000 kilowatts or more. See Minn. Stat. 216F.01, subds. 2-3.
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With respect to LWECS, the statute expressly preempts municipal law in
providing: A permit under this chapter is the only site approval required for the
location of an LWECS. The site permit supersedes and preempts all zoning, building, or
land use rules, regulations, or ordinances adopted by regional, county, local, and special
purpose governments. Minn. Stat. 216F.07.
With respect to SWECS, the statute provides:
(b) Any person may construct an SWECS without complying with chapter
216E or this chapter.
(c) Nothing in this chapter shall preclude a local governmental unit from
establishing requirements for the siting and construction of SWECS.
Minn. Stat. 216F.02.
On the issue of SWECS, the statute further provides: The [public utilities]
commission may assist local governmental units in adopting ordinances and other
requirements to regulate the siting, construction, and operation of SWECS, including the
development of a model ordinance. Minn. Stat. 216F.06. Plaintiffs argue that the
Ordinance is preempted by Minn. Stat. 216F.02(b), while the City argues that the
Ordinance is permitted by Minn. Stat. 216F.02(c).
II. Summary Judgment Standard
Summary judgment is appropriate where there are no genuine issues of material
fact and where the moving party is entitled to judgment as a matter of law. Minn. R.
Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 68 (Minn. 1997). When faced with a
motion for summary judgment under Rule 56, the Court is to first determine whether a
genuine issue of material fact exists. The moving party has the burden of proof, and the
evidence must be viewed in the light most favorable to the nonmoving party. Grondahl
v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982). There are no material factual disputes.
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III. Analysis
The question of whether a state statute preempts a city ordinance is a question
of law. See State v. Kuhlman, 722 N.W.2d 1, 4 (Minn. Ct. App. 2006), affd, 729 N.W.2d
577 (Minn. 2007). Accordingly, the question is properly decided on a motion for
summary judgment.
State statutes may preempt a local ordinance in three ways: (1) express
preemption, when the state statute explicitly defines the extent to which its enactments
preempt local regulation; (2) field preemption, when a city ordinance attempts to
regulate conduct in a field that the state legislature intended the state law to
exclusively occupy; and (3) conflict preemption, when a city ordinance permits what a
state statute forbids or forbids what a statute permits. Id.
In this case, Plaintiffs argue that the doctrine of conflict preemption applies on
the premise that the Ordinance forbids what Minn. Stat. 216F.02(b) permits
namely, the construction of an SWECS. The City argues that conflict preemption does
not apply on the premises that (1) Minn. Stat. 216F.02(b) merely signifies that
SWECS are not subject to the regulatory framework governing LWECS and (2) Minn.
Stat. 216F.02(c) makes the regulation of SWECS the prerogative of local government.
Based on the language of the statute, the Court rejects the premise that Minn.
Stat. 216F.02(b) merely signifies that SWECS are not subject to the regulatory
framework governing LWECS. 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. Instead, the statute provides that [a]ny person may construct
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an SWECS without complying with chapter 216E or this chapter. (Emphasis added.)
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. Accordingly, the statute must be construed as permitting a person to
construct an SWECS.
This interpretation is consistent with the legislatures stated renewable energy
policy. In 2013, the legislature created the Legislative Energy Commission and assigned it
various duties relating to the promotion of renewable energy, including the following:
The Legislative Energy Commission, in consultation with the commissioner of
commerce and other state agencies, shall develop a framework for the state of
Minnesota to transition to a renewable energy economy that ends Minnesotas
contribution to greenhouse gases from burning fossil fuels within the next few
decades. The framework and strategy should aim to make Minnesota the first
state in the nation to use only renewable energy.

Minn. Stat. 3.8852 (a).

Plaintiffs are thus correct in asserting that the Ordinance forbids what the
statute permits. There remains the question of whether Minn. Stat. 216F.02(c) and its
allowance for local regulation authorizes the City to forbid the construction of all
SWECS. The language of the statute again controls the inquiry. Subsection (c) provides:
Nothing in this chapter shall preclude a local governmental unit from establishing
requirements for the siting and construction of 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. The legislature limited the authority to regulate to establishing requirements
for the siting and construction of SWECS. Further support for the Courts conclusion
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about legislative intent can be found in Minn. Stat. 216F.06.
3
There, the legislature
directs the Public Utilities Commission to assist local governments in regulating the
siting, construction, and operation of SWECS including development of a model ordinance.
It says nothing about the authority to completely ban SWECS.
Given the statutory language, the allowance for local regulation is limited to
establishing the requirements for siting and construction. That statutory allowance for
local regulation is not compatible with a complete and total ban on SWECS unless one
takes the absurd position that the Ordinance establishes requirements for siting and
construction by requiring SWECS to be sited and constructed outside of the City.
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. Orr v. City of
Rochester, 193 Minn. 371, 372, 258 N.W. 569, 569 (1935)
The City of Orono is a statutory city, which is a limited statutory creation. See
Minn. Stat. 410.015. The City has no inherent powers beyond those expressly
conferred by statute or implied as necessary in aid of those powers which have been
expressly conferred. Welsh v. City of Orono, 355 N.W.2d 117, 120 (Minn. 1984). Under
Minn. Stat. 365.10, subd. 17, the City has general police power to regulate the
protection of public and private property, . . . the promotion of health, safety, order and
convenience, and the general welfare. The City may only enact ordinances that are

3
This section also further supports the Courts above conclusion that the legislative intent was to
empower, encourage and assist in the construction of SWECS (subject to reasonable regulations as to
siting and construction).
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consistent with state statutes. See Minn. Stat. 365.10, subd. 17 (b). The Minnesota
Court of Appeals has held that:
The fact that health and safety concerns provided the motivation for enacting the
ordinance does not make the ordinance valid. Although municipalities have the
power to regulate in the interest of public health, safety, and welfare, a township
cannot invoke police power to accomplish what is otherwise preempted by state
statute.

Board of Suprs of Crooks Tp., Renville County v. ValAdCo, 504 N.W.2d 267, 269, 271
(Minn. Ct. App. 1993).
The City cites Sherner v. Culliton, 382 N.W.2d 562 (Minn. Ct. App. 1986) for the
proposition that authority to regulate includes authority to prohibit. Sherner is
inapposite in at least two respects. First, in Sherner, the court cited a statutory
provision for supplementary review of a local governmental units refusal to approve a
waste facility as clearly indicat[ing] that local governmental units may ban the
creation of facilities. Id. In this case, the City has not pointed to any statutory
language clearly indicating that local governmental units may ban the construction of
all SWECS. Second, in Sherner, the parties argued field preemption, not conflict
preemption, in challenging the local ordinance prohibiting the use of sludge. See id. at
564 ([R]ather than preempt the field, the legislature specifically provided for
regulation by political subdivisions.). Plaintiffs are not arguing field preemption in this
case.
For those reasons, the doctrine of conflict preemption applies in this case to
preempt the Ordinance. Specifically, state law preempts the Ordinance because Minn.
Stat. 216F.02 permits the construction of SWECS and the Ordinance forbids it.
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Additionally, given the language of the statute, the allowance for local regulation
cannot be construed as allowing a total ban on the construction of SWECS.
The City has not raised any arguments specifically opposing Plaintiffs request
for injunctive relief. Accordingly, the Court is enjoining the City from enforcing the
Ordinance. The Court is having the injunction go into force in about 30 days so that the
City may adequately protect its interests.
IV. Conclusion
For the reasons set forth above, summary judgment is granted in favor of
Plaintiffs.
This ruling does not leave the City without authority to regulate SWECS within
its borders. It merely prohibits the complete banning of all SWECS within the City.
Plaintiff agrees that the City has the authority, under the statute, to regulate the siting
and construction of SWECS for such things as safety, noise and visual impact etc. The
City is free to enact reasonable requirements for the construction and siting of SWECS.
What is not before this Court is what reasonable regulations are permissible. This
Court is taking no position on whether a future city ordinance which addresses the
Citys concerns but is not a complete ban is legally enforceable.
PDB


27-CV-14-7419