Minnesota Court of Appeals Sides with Orono Resident in Wind Turbine Permit Dispute
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 zoning ordinance unambiguously set forth an exhaustive 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 the 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 a an urban area without the benefit of an ordinance that provides clear standards.
Wisconsin Wind Siting Rules Effective Today
After years of uncertainty, the Wisconsin legislature allowed statewide wind energy siting rules to go into effect today. The new rules (known as “PSC 128”) require wind turbines to be located at least 1,250 feet from the nearest residence and at a distance 1.1 times the height of the wind turbine from the nearest property line. Cities, villages, towns, and counties are prohibited from enacting an ordinance imposing more restrictive requirements than the statewide rules.
In 2009, the legislature directed the Wisconsin Public Service Commission (“PSC”) to develop rules that limit the restrictions local governments may impose on wind energy projects. The purpose of these rules was to ensure consistent local procedures and regulation of wind energy. On December 27, 2010, the PSC adopted the final wind energy siting rules (Wisc. Admin. Code Ch. PSC 128). But on March 1, 2011, the day the rules were to take effect, the legislature’s Joint Committee for the Review of Administrative Rules voted to suspend PSC 128. This year, the legislature considered a proposal to indefinitely suspend the rules, but adjourned yesterday without taking action. As a result, PSC 128 automatically became effective today.
While PSC 128 was in limbo, the legislature considered a proposal that would have imposed much more stringent setback requirements (1,800 feet from the nearest property line). The American Wind Energy Association said that these setbacks essentially would have killed the commercial wind industry in Wisconsin. News reports suggest that the uncertainty over siting rules caused several wind projects in the state to be suspended or cancelled over the last year. But with PSC 128 now in effect, Wisconsin appears to be open for wind energy business again.
Upcoming Energy Conference Highlights
Through industry presentations and publications as well as through our blog, our energy attorneys are dedicated to helping you stay informed and knowledgeable about legal developments that affect your business.
Visit our website for the latest calendar of events. Upcoming highlights include:
Distributed Solar Summit 2011
November 30-December 2 – San Diego, CA
This event is a unique opportunity for the entire distributed solar community to connect and discuss successful strategies for funding distributed solar projects. Stoel Rives attorneys Morten Lund and Brian Nese will moderate discussion panels covering “The California Market – Market Environment and Business Opportunities,” “Asset and Portfolio Capital Providers' Appetite for Investing in Distributed Solar,” and “EPC/Installers Views on Contracting Relationships.” As a sponsor, Stoel Rives is offering a 15% registration discount with code 118926.
Siting & Permitting Renewable Energy Projects in the West
December 7-9 – San Diego, CA
On December 8 hear Tim McMahan co-present “Impact of the Endangered Species Act, NEPA and Other Environmental Legislation on Current and Planned Projects,” and Tim Taylor participate in the discussion panel “Strategies for Working Successfully with the Regulators to Get Projects Permitted and Developed.” Wayne Rosenbaum will chair the Pre-Conference Workshop on December 7.
Hydropower’s Evolving Role in Western Power Grid Reliability
December 12-13 – Sacramento, CA
Join Stoel Rives attorneys Chad Marriott, Bill Holmes and Barbara Brenner for one of the year's most important hydroelectric power events. On December 13, Bill Holmes will present "Storage: How Changing Policies and Technologies Influence Hydropower Utilization," and Chad Marriott will present "Recognizing the Role of Small Hydro in the West."
US-China Wind 2011: Building Strategic Cooperation
December 13-15 – San Francisco, CA
Join Stoel Rives’ Mike Mangelson, William Clydesdale, David Benson, and Ed Einowski as they examine the factors driving developments of the US and Chinese wind power markets. Mike Mangelson will serve as the pre-summit chair, at which time William Clydesdale will present “Negotiating the Joint Venture Agreement.” During the main summit, chaired by Ed Einowski, David Benson will present “Alternative Financing Structures.” As the Platinum Sponsor of this event, Stoel Rives is offering a 15% registration discount with code 116011.
2012 Pacific West Biomass Conference & Trade Show
January 16-18 – San Francisco, CA
This event focuses on biomass utilization in the western US, and brings together area producers of biomass-derived electricity, heat, and power with waste generators, utility executives, equipment manufacturers, and more. On January 16, Lee N. Smith will moderate the discussion panel "Capitalizing on Energy Rich Waste Streams and Technical Approaches for their More Varied Conversion," and Greg Jenner will serve as a panelist for "Capitalization Strategies in Challenging Financial Environment." Stoel Rives is a proud sponsor of this event.
Projects & Money 2012
January 18-20 – New Orleans, LA
Stoel Rives is proud to be a Gold Sponsor for this one-stop meeting center for project professionals working to kick off their project finance plans. Stoel Rives attorney David Benson will be in attendance, and Stoel Rives attorney Julia Pettit will moderate the discussion panel "Buying and Selling Project Assets (Project M&A)" on January 19. Stoel Rives is pleased to offer a 10% registration discount with code 120366.
Wind & Solar Integration Summit
January 18-20 – Scottsdale, AZ
Stoel Rives attorneys Stephen Hall and Bill Holmes come together with policy makers, transmission owners and operators, and renewable energy developers to network and exchange valuable information about operational changes and their impact on distributed solar and grid-scale wind energy. Bill Holmes will serve as Summit Chair, and Stephen Hall will present "Approaches to Handling Environmental Redispatch and Curtailment.”
PV Project Due Diligence Requirements
January 23-24 – San Diego, CA
Hear Stoel Rives attorney Howard Susman present "Project Contractual Relationships" on Monday, January 23 as he covers such issues as PPAs, financing, siting and permitting, and more.
Next Generation Bio-Based Chemicals Summit
January 23-26 – San Diego, CA
Join Stoel Rives attorneys David Quinby, Christopher Voss and Jere Webb for this innovative biotech/biofuels event with a comprehensive, in-depth focus on sustainably sourced chemicals — and the platforms, resources, business models and tools required to deliver them. Stoel Rives is a Platinum Sponsor for this event.
EUEC 2012
January 30-February 1 – Phoenix, AZ
See over 600 professional presentations on 12 specialized tracks, and browse over 200 exhibits. Allison Smith will present "Strategies for Complying with Current GHG Regulations in California,” and Kristen Castaños will present "Utility-Scale Solar Projects in California - The Keys to Development Permits in Desert Areas and on Farmland."
Wind Power Finance & Investment Summit
February 8-10 – San Diego, CA
Join Ed Einowski and members of the Stoel Rives Wind team as they participate in one of the best deal-making and networking events in the wind industry. Stoel Rives is proud to be a Platinum Sponsor for this event.
Solar Power Finance & Investment Summit
February 27-March 1 – San Diego, CA
Join Stoel Rives attorneys Howard Susman, Julia Pettit, David Benson, Morten Lund and Greg Jenner to learn about putting together solar power project deals. Hear investors discuss their future plans and what they seek when getting involved in deals in 2012 and beyond. David Benson will Chair, Julia Pettit will moderate, “The Buying and Selling of Distributed Solar Projects,” and Morten Lund will moderate, “Financing 2-20 MW Scale Projects.” Stoel Rives is proud to be a Platinum Sponsor at this event.
Upcoming Energy Conference Highlights
Through industry presentations and publications as well as through our blog, our energy attorneys are dedicated to helping you stay informed and knowledgeable about legal developments that affect your business.
Visit our website for the latest calendar of events. Upcoming highlights include:
Southeast Biomass Conference & Trade Show
November 1-3 – Atlanta, GA
Join Stoel Rives attorneys Lee Smith, Greg Jenner, Joe Thompson, and Tim Taylor in Atlanta for this BBI conference. Stoel Rives is a proud sponsor of this event. Our attorneys will participate in discussion panels covering Environmental Compliance, Biomass Procurement and Supply Chain Management, and Federal Incentives.
WoWE Leadership Forum
November 2 – Carlsbad, CA
Stoel Rives and the Women of Wind Energy (WoWE) are pleased to announce the second installment of this special Forum. Stoel Rives attorneys Elizabeth Cason, Dina Dubson and Julia Pettit, member of the 2011 planning committee, will be in attendance.
AWEA Wind Energy Fall Symposium
November 2-4 – Carlsbad, CA
Join Stoel Rives attorneys Julia Pettit, Howard Susman and Wayne Rosenbaum at this exclusive event designed for professionals in every segment of the wind industry.
Solar Power Project Development
November 9 – San Diego, CA
Join Stoel Rives attorney Brian Nese in San Diego where he will co-present the Solar Status and Update session.
Green Energy M&A Outlook for 2012
November 15-16 – Santa Clara CA
Stoel Rives is proud to be a Platinum Sponsor at this event. Attorneys Duff Bryant, Ed Einowski and Julia Pettit will moderate discussion panels covering the Corporate M&A Landscape, Renewable Developers’ Perspectives, and Wind M&A Deals. Duff Bryant and Ed Einowski will serve as Summit Co-Chairs. We are pleased to offer a 15% registration discount with code 119631.
CalWEA 11th Annual Meeting
November 16-17 – Carlsbad, CA
Join Howard Susman, Wayne Rosenbaum, Randy Faccinto, Brian Nese, and Elizabeth Cason as they gather with other members of the California Wind Energy Association. Stoel Rives is proud to be a breakfast sponsor at this event.
Utah Renewable Energy Business Summit
November 16-17 – Salt Lake City, UT
Join Stoel Rives attorney Julia Pettit for this two-day event presented by the Governor’s Office of Economic Development.
Distributed Solar Summit 2011
November 30-December 2 – San Diego, CA
Hear discussions moderated by Stoel Rives attorneys Morten Lund and Brian Nese covering The California Market Environment and Business Opportunities, Asset and Portfolio Capital Providers' Appetite for Investing in Distributed Solar, and EPC/Installers Views on Contracting Relationships.
Siting & Permitting Renewable Energy Projects in the West
December 7-9 – San Diego, CA
Tim McMahan will co-present Impact of the Endangered Species Act, NEPA and Other Environmental Legislation on Current and Planned Projects and Tim Taylor will participate in the discussion panel Strategies for Working Successfully with the Regulators to Get Projects Permitted and Developed.
US-China Wind 2011: Building Strategic Cooperation
December 13-15 – San Francisco, CA
Visit with Mike Mangelson, William Clydesdale, David Benson, and Ed Einowski in San Francisco for the 2nd Annual US-China Wind Summit. Stoel Rives is proud to be a Platinum Sponsor at this Infocast event, and we are pleased to offer a 15% discount on registration with code 116011.
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Debate Heats Up over Minnesota Wind Energy Siting Standards and Setbacks
Late last week, an administrative law judge (“ALJ”) found that the Minnesota Public Utilities Commission (the “Commission”) is not obligated to consider or apply a county wind ordinance containing siting standards that are stricter than the Commission’s statewide standards. And even if the Commission were obligated to consider and apply the more stringent standards, the ALJ recommended that the Commission be excused from doing so for lack of good cause under the Minnesota Wind Siting Act (the “Act”). The ALJ’s recommendations to the Commission were released at the same time Minnesota legislators are considering a proposed state law that would require larger setbacks for wind turbines from neighboring property lines statewide.
In October 2010, Goodhue County amended its zoning ordinance for wind projects to, among other things, require turbines to be setback 10 rotor diameters (or about half a mile) from dwellings of landowners not participating in the project. In comparison, the project developers proposed setbacks of 1,500 feet from non-participating dwellings and the Minnesota Office of Energy Security recommended this setback distance as a permit condition. State standards typically require setbacks of 750 to 1,500 feet to comply with noise standards. Two weeks after Goodhue County adopted its wind ordinance, the Commission determined that it did not have a sufficient record before it to determine how or whether to apply the county’s standards. To develop that record, the matter was referred to an ALJ at the Office of Administrative Hearings for a contested case proceeding.
The Act provides that a state site permit for a wind project 5 MW or larger is the only site approval required. The state permit supersedes and preempts all local zoning, building, or land use rules, regulations, or ordinances. Local governments retain authority to regulate siting and construction of wind projects 5 MW and smaller. The Act allows counties to assume responsibility for permitting wind projects 5 MW and larger up to 25 MW using general permit standards developed by the Commission. However, the Act includes a provision that allows counties to adopt more stringent standards for wind energy projects 5 MW and larger, which the Commission must consider and apply before granting a site permit in that county unless the Commission finds good cause not to do so. The ALJ found that the Act does not require the Commission to consider or apply Goodhue County’s ordinance and that, even if it did, there would not be good cause to do so. The case now moves back to the Commission for a final decision.
Recent attention to wind siting standards in Minnesota hasn’t been limited to the Goodhue County case. Yesterday, the Minnesota Senate Energy, Utilities and Telecommunications Committee heard wind siting/setback legislation (S.F. 1069) that would require wind turbines to be set back one-half mile or more from property lines of non-participating landowners in townships exceeding certain population densities. The House companion bill (H.F. 811) was heard last week and failed to pass out of committee on a tied vote. The setback requirements proposed in these bills could significantly reduce the amount of land area available for wind development in Minnesota.
Wisconsin Bill Addresses State Wind Siting Standards
Wisconsin Governor Jim Doyle has signed a bill into law that will require the state Public Service Commission (PSC) to promulgate rules establishing common standards for political subdivisions to regulate the construction and operation of wind energy systems. The legislation seeks to address the patchwork regulatory framework created by local jurisdictions' development of their own siting regulations, and to address the concerns of developers who have been hesitant to develop wind energy systems in the state.
Previously, a municipality was prohibited from placing any restriction on the installation of a wind energy system unless the restriction satisfies certain conditions, including protection of public health or safety. The new law allows limited and generally uniform regulation of wind energy systems, and specifies that a municipality (i) may not regulate wind energy systems unless it adopts an ordinance that is no more restrictive that the PSC rules, and (ii) may not impose any restriction on a wind energy system that is more restrictive than the PSC rules.
Ohio Power Siting Board Adopts Wind Facility Rules
On October 28, 2008, the Ohio Power Siting Board adopted rules implementing certification requirements for wind generating facilities in the state. The full text of the opinion and order approving the rules identifies the procedural background followed by the PSB and highlights comments received from all interested parties (including utilities, citizen groups, and AWEA). The The rules follow Ohio's passage in May 2008 of an RPS which requires that utilities provide 25% of their retail electricity supply from alternative energy resources by 2025, at least half of which must be generated by renewable resources such as wind.
