Newell vs. Libertyville - transcript

The residents of Libertyville, IL struggled since April 2009 with noise and flicker from a 120-foot, 50 kilowatt Entegrity wind turbine erected within 250-feet of residential properties. Following a civil proceeding seeking relief from the noise and other nuisances, the Court issued a compromise ruling ordering turbine operation be restricted to weekdays only during the hours of 9am to 3pm. Below is an excerpt of the court transcript explaining the law supporting the Court's ruling. The full transcript can be accessed by clicking on the link below.

THE COURT: First of all, I'm going to review the elements of a private nuisance under the common law. And as both parties are I'm sure aware, there are 2 kinds of nuisances under Illinois law; public and private.

The definition of a private nuisance is one which affects a single individual or a determinate number of persons in the enjoyment of some private right not common to the public. And for that proposition, I would cite Chicago National League Ballclub versus Thompson, 108 Illinois 2nd, 357. The wind turbine at issue here is clearly a private nuisance since it affects a determinate number of people who live in close proximity as opposed to the public in general.

A private nuisance is a substantial invasion of another's interest in the use and enjoyment of their land. That's Willmschen versus Trinity Lakes, W I L L M S C H E N versus Trinity Lakes, 362 Illinois Appellate 3rd, 546, a 2nd District 2005 case.

The invasion must be either intentional or negligent and unreasonable, citing the same case. The term intentional may be defined as including a knowledge of invasion of another's interest in the use and enjoyment of their property, either results or is substantially sure to result from the act in question.

This particular case, Aldridge need not intend to cause the injury in order to be answerable, therefore in nuisance.

Chicago and Northwestern Railway versus Hunerberg, H U N E R B E R G, 16 Illinois Appellate 387. Also citing to the Restatement Second of Torts Nuisance, section 825, comment D. And I would note that under Illinois law, section 825 of the Restatement is applicable and has been adopted. Under comment D, the restatement relates that most of the litigation over private nuisances involves situations in which there are continuing or recurrent invasions resulting from continuing or recurrent conduct. And the same is true of many public nuisances.

In these cases the first invasion resulting from the actor's conduct may be either intentional or unintentional. But when the conduct is continued after the actor knows that the invasion is resulting from it, that further invasions are intentional.

An excessive amount of noise may constitute a nuisance under Illinois law.
People ex rel traiteur versus Abbott. That's T R A I T E U R versus Abbott, 27 Illinois Appellate 3rd, 277, 1975. To constitute a nuisance, an act, occupation, or a structure should cause some injury, actual and not fanciful, and it must work some material annoyance, inconvenience, or other injury, either actual or implied, from an invasion of a right.

In deciding whether a particular annoyance is sufficient to constitute a nuisance, so far as injury to a person is concerned, the criterion is its effect on an ordinarily reasonable person; that is a normal person of ordinary habits and sensibilities.

Whatever is offensive physically to the senses, and by such offensiveness makes life uncomfortable, is a nuisance. And any business, however lawful, which causes annoyance materially interfering with ordinary physical comforts of human existence constitutes a nuisance. The cite for that proposition is Woods versus Kahn, K A H N, 95 Illinois Appellate 3rd, 1087, 5th
District, 1981.

The full transcript can be accessed by clicking on the link below.

Newell Vs Libertyville

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JUL 24 2009
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