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Nevada Supreme Court Order: Wind turbine a nuisance

This unanimous decision by the Nevada Supreme Court could have impacts across the U.S. The Court lays out a clear and convincing explanation for why a personal wind turbine in a residential subdivision should be prohibited. In the order, Justice Jim Hardesty covers noise, property value impacts and the effect on aesthetics including shadow flicker. Excerpts of the order are provided below. The full order can be accessed at the below links.

OPINION

In this appeal, we address whether the district court properly concluded that, under the particular circumstances and surroundings of the case, a proposed residential wind turbine would constitute a nuisance warranting a permanent injunction against its construction. Below, respondents Forest Hills Subdivision, Ann Hall, and Karl Hall collectively, the Halls) sought to permanently enjoin their neighbor, appellant Rick Sowers, from constructing a wind turbine on his residential property, asserting that the proposed turbine would constitute a nuisance. The district court agreed and granted the permanent injunction.

We conclude that, in this case, substantial evidence exists to support the district court's conclusion that the proposed wind turbine constitutes a nuisance. We also determine that the wind turbine at issue would create a nuisance in fact. In reaching our conclusion, we hold that he aesthetics of a wind turbine alone are not grounds for finding a nuisance. However, we conclude that a nuisance in fact may be found when the aesthetics are combined with other factors, such as noise, shadow flicker, and diminution in property value. In this case, the district court heard testimony about the aesthetics of the proposed wind turbine, the noise and shadow flicker it would create, and its potential to diminish surrounding property values. Based on this evidence, we conclude that substantial evidence supports the district court's finding that the proposed residential wind turbine would be a nuisance in fact. Thus, we affirm the order granting a permanent injunction prohibiting its construction.

DISCUSSION

On appeal, Sowers argues that the district court improperly concluded that the proposed wind turbine constituted a nuisance and improperly granted the permanent injunction. We disagree.

A nuisance is "[a]nything which is injurious to health, or indecent and offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property." NRS 40.140(1)(a). There are several kinds of nuisances, two of which are pertinent to this discussion. A nuisance at law, also called a nuisance per se, is "a nuisance at all times and under any circumstances, regardless of location or surroundings." See 66 C.J.S. Nuisances § 4 (2013). A nuisance in fact, also called a nuisance per accidents, is "one which becomes a nuisance by reasons of circumstances and surroundings."

We recognize that the Washoe County Development Code permits the construction of private wind turbines in residential areas if such turbines otherwise comply with the requirements of the Code. See generally Washoe County Code Ch. 326 (2010). We are also cognizant of this state's aggressive policy favoring renewable energy sources, such as wind turbines. See NRS 278.02077. We further acknowledge the testimony from the neighbor of the person owning the comparable wind turbine who said that the turbine did not bother him. Based on these considerations, we do not believe that wind turbines are severe interferences in all circumstances, and thus wind turbines are not nuisances at law.

However, even when a structure or act is not a nuisance per se, "[a] nuisance may arise from a lawful activity conducted In an unreasonable and improper manner." 66 C.J.S. Nuisances § 16 (2012) (footnote omitted). Thus, a wind turbine may "be or become a nuisance by reason of the improper or negligent manner in which it is conducted, or by reason of its locality, as where it is done or conducted in a place where it necessarily tends to the damage of another's property." Id. Accordingly, "a fair test as to whether a business or a particular use of a property in connection with the operation of the business constitutes a nuisance[] is the reasonableness or unreasonableness of the operation or use in relation to the particular locality and under all existing circumstances." Burch v. Nedpower Mount Storm , LLC, 647 S.E.2d 879,893 (W. Va. 2007) (internal quotations omitted).

"When deciding whether one's use of his or her property is a nuisance to his neighbors, it is necessary to balance the competing interests of the landowners, using a commonsense approach." 66 C.J.S. Nuisances § 13 (2012). Although we recognize that preserving a residential neighborhood's character IS an important and substantial interest for subdivision homeowners, see Zupancic v. Sierra Vista Recreation, 97 Nev. 187, 194, 625 P.2d 1177, 1181 (1981), we have consistently held that a landowner does not have a right to light, air, or view. See Probasco v. City of Reno, 85 Nev. 563, 565, 459 P.2d 772, 774 (1969); Boyd v. McDonald, 81 Nev. 642, 651, 408 P.2d 717, 722 (1965). Thus, in resolving this issue on appeal, we must determine whether the proposed wind turbine is "so unreasonable and substantial as to amount to a nuisance and warrant an injunction" by balancing "the gravity of the harm to the plaintiff against the utility of the defendant's conduct, both to a question of fact. Jezowski v. City of Reno, 71 Nev. 233, 239, 286 P.2d 257, 260 (1955). This court will uphold the factual findings of the district court as long as these findings are not clearly erroneous and are supported by substantial evidence. Kockos v. Bank of Nevada, 90 Nev. 140, 143, 520 P.2d 1359, 1361 (1974).

To sustain a claim for private nuisance, an interference with one's use and enjoyment of land must be both substantial and unreasonable. Lied v. County of Clark, 94 Nev. 275, 278, 579 P.2d 171, 173 (1978). Interference is substantial "'[i]f normal persons living in the community would regard the [alleged nuisance] as definitively offensive, seriously annoying or intolerable.'" Rattigan v. Wile, 841 N.E.2d 680, 688 (Mass. 2006) (quoting Restatement (Second) of Torts § 821F cmt. d (1979)).

Interference is unreasonable when "the gravity of the harm outweighs the social value of the activity alleged to cause the harm." Burch, 647 S.E.2d at 887 (internal quotations omitted).

In the small body of national case law regarding wind turbines, noise and diminution of property values are the most universally considered factors in determining whether a private nuisance exists. Some states also consider the presence of shadow flicker in combination with noise and property value reduction.

Noise

In a case with similar facts from another jurisdiction, the Superior Court of New Jersey held that a residential wind turbine located in a quiet neighborhood constituted a nuisance solely on the basis of the constant loud noise that the turbine generated. Rose v. Chaikin, 453 A.2d 1378, 1381-82 (N.J. Super. Ct. Ch. Div. 1982). In Rose, the Superior Court found that the distinctive sound of the wind turbine produced a heightened level of intrusiveness because the neighborhood was quiet, separated from commercial and heavier residential noise, and the residents had specifically chosen to live in the area due to the peacefulness the community afforded. Id. We conclude that the citizens who were protected in Rose are analogous to the Halls and other Forest Hills residents, as the district court heard testimony of several persons living in the Forest Hills Subdivision that the subdivision was very quiet, and they were concerned that the level of noise from the wind turbine would change the character of the neighborhood they had sought to live in. Since a renewable energy expert testified that the noise created by the turbine would be similar to that of the hum on a nearby highway, there is some evidence that the quiet would most likely be gone. Based on this evidence, the district court could have determined that the proposed wind turbine
constitutes a nuisance as a source of excessive noise.

Diminution to property value

Burch also allows for the consideration of potentially diminished property values where it is shown that a landowner's use and enjoyment of his or her property may be infringed. 647 S.E.2d at 892. Since the district court received testimony from subdivision residents that they feared an impact on the use and enjoyment of their property, it was fair for the district court to also take into account potential harm to property values. Thus, it was acceptable to include in its findings and conclusions the opinion of the real estate agent who testified that properties in proximity to wind turbines decreased in value.

Aesthetics and shadow flicker

As noted in footnote 5, a district court may consider the aesthetics of the wind turbine only if factors other than unsightliness or obstruction of views are claimed. In Burch, the West Virginia court noted that shadow flicker was a kind of aesthetic concern that could be considered in conjunction with other factors. Id. at 898. It further anticipated how a commercial wind turbine facility abutting a neighborhood could constitute a private nuisance where constant shadow flicker was likely to ruin the enjoyment of residents. Here, Karl Hall testified that the wind turbine would create a shadow flicker on his property, and the contractor hired to construct the wind turbine testified that there is no way to mitigate shadow flicker. Thus, it was not clearly erroneous for the district court to consider shadow flicker.

Nor was it error for the district court to consider the size of the proposed wind turbine. Evidence was heard from a representative of the company who was supposed to construct the turbine indicating that the height of the proposed turbine exceeded 75 feet. The district court got to experience just how tall 75 feet is during its site visit to a comparable wind turbine. With this perspective, the site visit to Sowers' property revealed that his proposed turbine would be a significant imposition on the Halls' ability to use their property, as their land, which lays lower than Sowers' land, would now have a sizeable obstacle overshadowing it.

Since evidence of other factors was presented, it was proper for the district court to add into its consideration the presence of shadow flicker and the size of the turbine and the impact on views. As such, we conclude that this evidence concerning the noise, diminution in property value, shadow flicker, and aesthetics far outweighs any potential utility of the proposed wind turbine within the Forest Hills Subdivision. Accordingly, we conclude that the proposed wind turbine constitutes a nuisance in fact.

Sowervforesthills_thumb
Sower V Forest Hills

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Source: http://www.nevadajudiciary....

FEB 14 2013
http://www.windaction.org/posts/36226-nevada-supreme-court-order-wind-turbine-a-nuisance
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