Contempt of Court Holding Affirmed in Minnesota Wind Turbine Case

by Andrea Vaage and Gary Taylor

City of Orono v Nygard
Minnesota Court of Appeals, June 1, 2015

Jay and Kendall Nygard constructed a wind turbine in their backyard in Orono, Minnesota in violation of the City’s zoning code, and after they were denied a permit to do so.  The Nygards challenged the denial in district court and lost; however, in a 2012 decision the Minnesota Court of Appeals reversed and remanded the district court’s decision, finding that list of permitted uses in the zoning code – which did not include wind turbines – was not exhaustive.  On remand the city sent the Nygards a series of questions designed to help the city determine the relevant provisions of the zoning code, which the Nygards refused to answer.  The city thus denied the permit again. The district court supported the denial and ordered the Nygards to remove the wind turbine, pole, and concrete pad supporting the structure. The Nygards refused to comply, whereupon the district court found them in constructive civil contempt of court. The Nygards attempted to stay the contempt proceedings, which the district court denied, leading to this appeal. The Nygards first argued the court lacked subject matter jurisdiction to find them in contempt because contempt proceedings arose from their failure to comply with the district court’s order in their permit dispute, and the district court lacked subject matter jurisdiction over that permit dispute.

Subject matter jurisdiction refers to the ability of a court to adjudicate a class of actions and the questions in those actions. In Minnesota, the party attacking subject matter jurisdiction must show the court lacked authority as well as prove one of three factors:  (1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; (2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or (3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.

The Court of Appeals found the Nygards never presented the district court with any evidence or argument to support the existence of any of the three factors, and the Court of Appeals therefore refused to consider the arguments for the first time on appeal.  The Nygards then argued the district court lacked subject matter jurisdiction because the Nygards failed to exhaust all administrative remedies by making an administrative appeal. However, Minnesota law only allows municipalities to make that defense, not the applicant.

The Court affirmed the district court’s judgment and ordered the Nygards to comply with the earlier order to remove the wind turbine and its components.





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