Error to interpret list of accessory uses as an exhaustive list precluding other uses

by Kaitlin Heinen

City of Orono v. Jay T. Nygard, et al.
(Minnesota Court of Appeals, October 22, 2012)

Jay and Kendall Nygard live in a district of the City of Orono zoned as One-Family Lakeshore Residential (LR-1B). On October 13, 2010, the Nygards applied for a permit to erect a wind turbine on their property. Two days later on October 15, the City denied the Nygards’ permit application in a letter from the City’s Planning and Zoning Coordinator, which stated that wind turbines are not a permitted accessory use on property zoned LR-1B. On November 12, 2010, city employees observed a concrete footing being installed on the Nygards’ property, which they believed was being done to erect the wind turbine despite the City’s denial of their permit application. On November 16, 2010, the City issued a stop-work order and demanded that the Nygards remove the concrete footing. The Nygards disregarded this order and completed the wind turbine by February 2011.

In March 2011, the City filed suit in district court for a declaratory judgment that the Nygards’ wind turbine was not in compliance with the City’s zoning  ordinance.  In April 2011, the Nygards’ filed a separate suit against the City, challenging the City’s denial of their permit application. The district court consolidated the two cases. In March 2012, the district court granted the City’s motion and denied the Nygards’, holding that the City’s zoning ordinances clearly set forth a list of lawful accessory uses, which does not include wind turbines. The Nygards appealed to the Minnesota Court of Appeals.

The Nygards argue that the City misinterpreted 78-329 of the Orono City Code as setting forth an exhaustive list of lawful accessory uses, thereby forbidding wind turbines on LR-1B property. In contrast, the Nygards argued that section 78-329 is a non-exhaustive list and that their wind turbine is within the general definition of accessory uses. In reviewing the City’s interpretation of its zoning ordinance, the Minnesota Court of Appeals considered three principles: “First, courts generally strive to construe a term according to its plain and ordinary meaning…Second, zoning ordinances should be construed strictly against the city and in favor of the property owner…[Third,] A zoning ordinance must always be considered in light of its underlying policy.”

In regards to the first principle, the zoning ordinance should be interpreted according to its plain and ordinary meaning. It is reasonable to interpret 78-329 to mean that the nine accessory uses listed are the only lawful accessory uses in the LR-1B district. But the Nygards argue that 78-329 also can be reasonably interpreted to allow accessory uses that are not listed because the language of section 78-329 is different from the language of nearby sections of the zoning code, which are more explicit in foreclosing the possibility of other allowed uses.  Section 78-329 – the section in question – states that “the following uses shall be permitted accessory uses.”  Section 78-327, in contrast, states that “no land or structure shall be used except for” a list of specified uses, while another section – Section 78-566 – states that “no accessory structure or use of land shall be permitted except for one or more of the following uses.” Because 78-329 does not use the same type of strong language to negate the possibility of lawful accessory uses not listed within the ordinance, it is reasonable to interpret 78-329 more broadly to allow other accessory uses. Furthermore, the city conceded that it has interpreted 78-329 in other past situations to allow accessory uses that are not expressly mentioned. For example, the City has allowed structures such as flagpoles, basketball hoops or clotheslines within the LR-1B district.

In light of the City’s inconsistent interpretation of 78-329, the Minnesota Court of Appeals did not uphold the City’s denial of the Nygards’ permit application.  It ruled that the City erred when it denied the Nygards’ permit application, and that the district court also erred in entering judgment in favor of the City. The Minnesota Court of Appeals reversed the district court ruling and remanded the matter to the City for further consideration of the Nygards’ permit application.

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