Posted by: Patricia Salkin | July 14, 2015

MN Appeals Court Affirms Holding of Contempt for Failure of Property Owners to Remove a Wind Turbine in Compliance with a Court Order

Appellants Jay and Kendall Nygard had constructed a wind turbine in their backyard in violation of the City of Orono’s zoning code. The district court found them in constructive civil contempt of court for repeatedly refusing to comply with its order to remove the turbine after their legal challenges to Orono’s zoning code failed. The Nygards then appealed the district court’s denial of their motion to stay the contempt proceedings. On appeal, the Nygards argued that the district court lacked subject matter jurisdiction to find them in contempt because the 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.

Minnesota courts held that a party collaterally attacking subject matter jurisdiction of a final judgment entered in a separate proceeding must prove that the court lacked subject matter jurisdiction, and also demonstrate either that: 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; or allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or 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. Bode v. Minn. Dep’t of Natural Res., 612 N.W.2d 862, 866 (Minn.2000).

Here, however, the Nygards failed to present any evidence of any of the Code requirements. Furthermore, the court found that the Nygards failed to persuade the district court on the merits of their argument did not mean that the district court lacked subject matter jurisdiction to adjudicate the dispute that the Nygards brought to court. The Nygards next argued that they failed to exhaust their administrative remedies, but the court found this argument similarly unpersuasive because the failure to exhaust administrative remedies is an affirmative defense that may be brought by a municipality. Finally, the Nygards requested that the court grant a stay, but did not offer a single argument as to why it should grant that relief. As such, the court deemed the Nygards’ right to argue for a stay waived. Accordingly, the court affirmed the district court’s order to remove the turbine or face fines and/or jail time.

City of Orono v Nygard, 2015 WL 2467194 (MN App. Unpub. 6/1/2015)

The opinion can be accessed at:

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