Go Green Energy, LLC, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1125

Go Green Energy, LLC,
Appellant,

vs.

City of Orono,
Respondent.

Filed April 10, 2017
Affirmed
Kirk, Judge

Hennepin County District Court
File No. 27-CV-16-2012

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
appellant)

George C. Hoff, Shelley M. Ryan, Hoff Barry, P.A., Eden Prairie, Minnesota (for
respondent)

Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges the summary -judgment dismissal, on statutor y-immunity
grounds, of its tort claims arising out of respondent City of Orono’s passage of an ordinance

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regulating small-wind-energy-conversion systems (SWECS). Because the district court
did not err in concluding that the city is entitled to immunity as a matter of law, we affirm.
FACTS
On December 9, 2013, the Orono City Council adopted an ordinance categorically
prohibiting wind-energy-conversion systems within the city. See Orono, Minn., Code of
Ordinances § 78-1379(f) (2014). Appellant Go Green Energy, LLC, its owner, Jay Nygard,
and others brought a declaratory -judgment action, asserting that the ordinance was
preempted by Minn. Stat. § 216F.02 (2016), which allows for construction of SWECS ,
subject to local regulation of siting and construction. The district court agreed, and, on
October 23, 2014, entered an order granting the plaintiffs’ motion for summary judgment
and enjoining the city from enforcing the ordinance beginning November 24, 2014. Go
Green Energy, LLC, et al. v. City of Orono, No. 27-CV-14-7419 (Order Oct. 24, 2014) (Go
Green I).1
The district court in Go Green I held that conflict preemption applied to defeat the
ordinance because it forb ade what Minn. Stat. § 216F.02 allowed. But the district court
noted that the city was not entirely precluded from regulating SWECS and specifically
declined to hypothesize what regulations might be permissible:
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 for 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

1 Neither party appealed the district court’s decision in Go Green I.

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is not before this Court is what reas onable regulations are
permissible. This Court is taking no position on whether a
future city ordinance which addresses the City’s concerns but
is not a complete ban is legally enforceable.

On October 27, 2014, the city council passed an ordinance pla cing a temporary
moratorium on the construction of SWECS until the earlier of adoption of a new SWECS
ordinance or October 27, 2015. The city council directed the planning commission to hold
a hearing for the purpose of amending the city’s official controls regulating SWECS.
In the months that followed, the planning commission undertook an investigation
into the appropriate limitations on SWECS. The commission held two public meetings,
on November 16, 2014, and January 20, 2015. As part of its review, the commission
considered SWECS ordinances from other jurisdictions as well as a model ordinance by
the Minnesota Po llution Control Agency (MPCA). The commission addressed policy
considerations including: whether SWECS should be allowed in both residentia l and
commercial zoning districts; appropriate height, setback, and location standards; and
whether ornamental wind devices should be subject to the ordinance. Following its review,
the commission forwarded a proposed ordinance to the city council.
The city council reviewed the proposed ordinance at meetings held on March 9 and
23, 2015, and passed the ordinance at a meeting on April 13, 2015. The city council’s
meeting minutes reflect its consideration and weighing of the interests of property owners
wishing to construct SWECS against the interests of neighbors who may be impacted by
noise, shadows or flickering, and vibrations caused by SWECS. The council also
considered the feasibility of constructing SWECS under the proposed ordinance, ultimately

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determining that both the setback requirement and requirement for a minimum distance
from the principal structure should be reduced on feasibility grounds.
The new SWECS ordinance allows SWECS as an accessory use on lots at least ten
acres in gross area in certain residential zones and as a conditional use on lots at least five
acres in gross area and subject to conditional -use-permit approval in certain commercial
and industrial zones. The ordinance includes maximum hub -height and blade -length
requirements, a 100 -foot setback requirement from all property lines, and requires that
SWECS be located no more than 100 feet from owners’ principal residences. The
ordinance prohibits any vibration, requires compliance with MPCA noise regulations, and
includes maintenance and inspection requirements.
Based on allegations that the new SWECS ordinance is so restrictive that it
constitutes a de facto ban, Go Green initially filed and then withdrew a motion for contempt
in Go Green I . Go Green thereafter filed this separate action seeking to recover tort
damages based on the city’s alleged tortious interference with future contracts. Go Green
did not assert a declaratory -judgment claim in this action. The city moved for summary
judgment based on statutory and vicarious official immunity. The district court granted
dismissal on grounds of statutory immunity. Go Green appeals, challenging the application
of statutory immunity to bar its claim.
D E C I S I O N
This court reviews de novo both the grant of summary judgment and the application
of statutory immunity. Schroeder v. St. Louis County, 708 N.W.2d 497, 503 (Minn. 2006).
Municipalities are subject to tort liability unless an exception applies under the Municipal

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Tort Claims Act, Minn. Stat. §§ 466.01-.15 (2016). See Minn. Stat. §§ 466.02 (providing
general rule of liability), .03 (providing exceptions). In this case, the city asserted, and the
district court held, that the city is entitled to immunity under the discretionary -function
exception, which provides that a municipality is immune from “any claim based upon the
performance or the failure to exercise or perform a discretionary function or duty, whether
or not the discretion is abused.” Minn. Stat. § 466.03, subd. 6.
“The major underpinnings for the discretionary function exception to governmental
tort liability rest in the notion that the judicial branch of government should not, through
the medium of tort actions, second -guess certain policy -making activities that are
legislative or executive in nature.” Nusbaum v. Blue Earth County, 422 N.W.2d 713, 718
(Minn. 1988). “Thus, it is important for courts to focus on the idea that statutory immunity
seeks to protect policy -based decisions and to prevent the impairment of effective
government.” Schroeder, 708 N.W.2d at 503. Accordingly, the discretionary -function
exception generally applies to protect planning -level decisions, i.e., those decisions that
involve the evaluation and weighing of social, political, and economic considerations. Id.
at 504; see also Nusbaum , 422 N.W.2d at 722 (noting that while planning-operational
distinction is helpful, it “should not be used in a conclusory manner,” but rather “as a tool
for focusing attention on the central inquiry of whether the challenged governmental
conduct involved a balancing of policy objectives”).
An immunity analysis begins with identifying the precise governmental conduct
challenged. Schroeder, 708 N.W.2d at 504. “ Government cond uct is considered
discretionary and thus protected by statutory immunity when the state produces evidence

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that the conduct was of a policy-making nature.” Id. Although “[t]he burden is on the state
to prove that it is immune under the discretionary function exception . . . there may be cases
where the challenged government conduct facially involves a balancing of policy
objectives,” in which case “it may be unnecessary for the state to produce evidence of how
the decision precipitating the challenged cond uct was made.” Nusbaum, 422 N.W.2d at
722 n.6.
The district court determined that the governmental conduct at issue in this case is
the city’s adoption of the ordinance governing SWECS, and that the record established that
this conduct was discretionary because “the [c]ity balanced numerous policy fact ors such
as safety, nuisance concerns, and the desirability for renewable energy when drafting and
passing the ordinance.” The district court concluded that “the conduct that Go Green has
challenged is clearly planning level, not operational conduct” and that, “[a]s such, the City
is entitled to tort immunity.”
Go Green does not challenge the district court’s conclusion that adoption of the
SWECS ordinance was planning-level, discretionary conduct, nor could it successfully do
so. See, e.g., Holmquist v. State , 425 N.W.2d 230, 234 (Minn. 1988) (“The adoption of
standards or regulations is considered a protected planning level activity because it almost
inevitably requires the balancing of policy considerations.”) Rather, Go Green argues that
(1) it is challenging not the adoption, but the operation of the ordinance; and (2) statutory
immunity does not apply to its tortious -interference claim because the ordinance is
preempted by state law and the district court’s order in the first action. We reject both
arguments.

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Go Green’s argument that it challenges the operation rather than the adoption of the
ordinance proposes a false dichotomy. Critically, Go Green makes no allegations about
the operation of the ordinance separate from its adoption. Moreov er, a challenge to the
operation of the ordinance according to its terms is a challenge to the adoption of the
ordinance itself. See Nusbaum, 422 N.W.2d at 723 (explaining that a challenge to simple
application of a policy —as opposed to implementation of policy with exercise of
professional judgment—is a challenge to the policy itself); Watson by Hanson v. Metro.
Transit Comm’n , 553 N.W.2d 406, 414 (Minn. 1996) (applying immunity because
appellant’s “challenges amount to an attack upon the policies themselves”).
Go Green’s assertion that its tortious-interference claims are not barred are similarly
not well-founded. Go Green asserts that the district court erred by failing to address its
arguments that the SWECS ordinance is preempted by Minn. Stat. § 2 16F.02 and
collaterally estopped by the Go Green I order before determining whether the city is
entitled to immunity. We disagree. Because immunity protects governmental entities not
just from liability, but from litigation, the application of immunity generally should be
decided as early as possible. Sletten v. Ramsey County, 675 N.W.2d 291, 299-300 (Minn.
2004). And, when it applies, statutory immunity precludes all tort claims against a
municipality, regardless of the underlying legal theory or likelihood of success. See Minn.
Stat. § 466.03, subd. 6 (immunizin g discretionary conduct “ whether or not the discretion
is abused ”) (emphasis added); Schroeder, 708 N.W.2d at 503 (noting that purpose of
statutory immunity is to prevent second-guessing municipal policy decisions “through the
medium of tort actions ”) (emphasis added). Because of this, the determination that the

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city’s adoption of the ordinance was a planning -level, discretionary decision ends the
analysis.
Go Green relies heavily on the unpublished decision of this court in Ebin v. City of
South St. Pau l, No. CX -99-584, 1999 WL 1057549 (Minn. App. Nov. 23, 1999).
Unpublished decisions of this court are not precedential. Minn. Stat. § 480A.08, subd. 3(c)
(2016). Moreover, Ebin is distinguishable because the court decision at issue in Ebin left
no room for the city’s exercise of discretion. See id. at *6 (explaining that a previous court
decision “established that 18th Avenue South was already open and that the city had no
discretion to close it ”). The district court’s order in Go Green I determined only that the
previous ordinance banning SWECS was preempted by state law, and expressly recognized
the city’s authority to pass an ordinance governing the siting and construction of SWECS.
Thus, this is not a case like Ebin in which the city purported to a ccomplish through the
exercise of discretion precisely what it had no discretion to undertake.
Our decision here is limited to affirming the district court’s decision dismissing Go
Green’s claims on the ground of statutory immunity. Because our holding in this regard is
dispositive, we do not separately address Go Green’s argument that the district court erred
by declining to strike the city’s affirmative defenses or the city’s alternative argument that
it is entitled to vicarious official immunity. And, because Go Green did not assert a
declaratory-judgment claim, we, like the district court, take no position on the
reasonableness of the city’s SWECS ordinance.
Affirmed.