Le Sueur County District Court File No. 40-CV-12-815
Timothy J. Keane, Thomas F. DeVincke, Malkerson Gunn Martin LLP, Minneapolis, Minnesota (for appellants)
Christopher M. Hood, Robert T. Scott, Flaherty & Hood, P.A., St. Paul, Minnesota (for respondents)
Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Cleary, Judge.
Appellants challenge the district court's dismissal of their declaratory-judgment action and denial of their motion to require respondent-city to hold a special election on a proposed amendment to the city's public-nuisance ordinance. Appellants assert that the district court erred by determining that the proposed ordinance amendment conflicts with state nuisance law and is a land-use regulation preempted by the Municipal Planning Act (MPA). Because we conclude that the proposed ordinance is preempted by the MPA, we affirm.
Appellants are residents of the respondent City of Le Sueur (city) who oppose the development of a proposed energy power plant. The proposed bioenergy-electric-generating power plant is known as the Hometown Bio Energy Project (project). The project will use an anaerobic digestion process to convert up to 45, 000 tons per year of local agricultural and food processing residuals (including silage, potato and vegetable processing residuals, poultry manure, grasses, hay, and cereals) into biogas, a liquid byproduct, and a solid renewable fuel.
The Minnesota Municipal Power Agency (MMPA) proposed to develop the project on a site of approximately 35 acres just outside of the city. The site is currently an abandoned gravel pit, and the land surrounding the pit is primarily cropland, with a portion of industrial-zoned land to the north. The city council accepted a petition for annexation from the current owner of the proposed project site and completed annexation of the site in December 2011.
The city is a Home Rule Charter (charter) city, as authorized by Minnesota Statutes Chapter 410; the city's charter reserves to the voters the right to petition the city council for adoption of ordinances. Concerned about the possible nuisance impact of the project, appellants proposed an ordinance amending Ordinance No. 517 of the city's Code of Ordinances relating to public nuisances.
The proposed ordinance read as follows, with the proposed new language underlined:
PUBLIC NUISANCE PROHIBITION
A person must not act or fail to act in any manner that causes a public nuisance. For purpose of this Ordinance, a person that does any of the following is guilty of maintaining a public nuisance:
Maintains or permits an activity which causes any unreasonable noxious, unpleasant, or strong odor which causes material distress, discomfort, or injury to persons of ordinary sensibilities in the immediate vicinity thereof. Such activity is ...