Resource Documents: Nebraska (1 items)
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Kohmetscher v. Nextera
Author: Kohmetscher, Kevin; Healy, David; and McGuire, Myles
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
Plaintiff, Kevin Kohmetscher, brings this Class Action Complaint & Demand for Jury Trial against Defendant, NextEra Energy, Inc. (“NextEra” or “Defendant”), to stop Defendant from operating wind turbines near residential communities in a way that causes a nuisance and interferes with homeowners’ use and enjoyment of their property. Plaintiff alleges as follows based on personal knowledge as to himself and his own acts and experiences …
NATURE OF THE ACTION
1. Defendant is one of the largest electric utility companies in the country, and the largest generator of wind energy in the world.
2. To generate wind energy, Defendant has constructed numerous “wind farms” across the United States. A wind farm is an array of wind turbines. Each turbine sits high in the air atop a tower and consists of a large rotor with three blades that spin as wind passes over the blades. Defendant’s wind farms often consist of dozens of turbines and stretch for miles across open terrain.
3. Although wind farms can supply renewable energy, they can also pose a number of hazards when built too close to homes and residential communities.
4. For instance, a turbine’s spinning blades create flickering shadows that pass over nearby land. For those in the path of a wind turbine’s shadows, the “shadow flicker” effect is similar to a constant strobe light. Those who experience prolonged shadow flicker often complain of severe headaches, nausea, difficulty concentrating, and in some cases seizures.
5. Turbines are also very noisy. The spinning blades create a deep thumping noise that sounds similar to a distant helicopter or train. This constant sound can travel for miles depending on weather conditions, and results in a decreased quality of life for those within a certain radius of the wind turbines due to stress, loss of sleep, and anxiety.
6. Rather than constructing its wind farms away from residential areas to prevent interfering with homeowners’ use and enjoyment of their land, Defendant has instead sited many of its wind farms in the middle of farm fields, near houses, and next to important roads.
7. Although Defendant’s chosen wind farm locations may be optimal for wind energy generation, the turbines’ proximity to residential areas can be devastating to those living in the surrounding community. The turbines drive people from their homes due to the unreasonable inconvenience, interference, annoyance, and adverse health effects caused by the turbines. Wind farms also destroy the scenic beauty of rural areas, cluttering the horizon with conspicuous towers and spinning blades.
8. Those who attempt to sell their homes and move away from Defendant’s wind farms are often unable to do so because the value of land near turbines plummets.
9. Accordingly, Plaintiff brings this action on his own behalf and on behalf of similarly situated individuals to obtain redress and injunctive relief for those who have suffered harm as a result of Defendant’s substantial and unreasonable interference with their use and enjoyment of their property.
10. On his own behalf and on behalf of a proposed class defined below, Plaintiff seeks an award of damages compensating him and the putative class members for the negative effects that Defendant’s turbines have had on their health and well-being, use and enjoyment of their property, and diminution in value of their property due to Defendant’s turbines. Plaintiff also seeks a permanent injunction barring Defendant from continuing to unreasonably interfere with his and the putative class members’ use and enjoyment of their property.
ALLEGATIONS OF FACT COMMON TO ALL COUNTS
Background
16. Wind energy is produced through the use of wind turbines. Turbines generally consist of three spinning blades connected to a rotor and a generator that sit atop a tower. As wind passes over the blades, the blades rotate and spin the generator to convert the wind’s kinetic energy into electrical energy.
17. Towers range in size up to 500 feet high, and blades can be more than 260 feet long. Due to their size, wind turbine towers require a large foundation to stay upright. Turbines are generally painted white to make them visible to aircraft.
18. When used to generate energy for commercial applications, large numbers of wind turbines are grouped together for efficiency in arrays known as wind farms.
19. Wind farms require use and control of extensive land area in order to optimize the spacing between turbines and minimize turbulence at downwind turbines.
20. Wind farms are typically sited in wide-open, rural areas. As such, the turbines often disrupt the natural scenic beauty of the land where they are placed. Wind farms also pose a risk of mortality to migratory birds whose flight paths pass through wind farms.
21. Many industrial wind turbine manufacturers recommend that turbines be at least 1,500 feet from any residence—a minimum setback—to provide a safety zone in the event of catastrophic failure (e.g. a blade breaks and flies off, or the turbine flings shards of ice that have accumulated along the blades during winter).
22. As a result, there is typically a “no-build” zone in a 1,500 feet radius surrounding any turbine. In many instances, however, this “no-build” zone overlaps with the property of landowners.
23. More importantly, wind turbines often interfere with residents’ use and enjoyment of their property even where they live beyond the recommended minimum setback.
24. For instance, the rotation of turbine blades causes a rhythmic flickering of sunlight, commonly called “shadow flicker.”
25. Shadow flicker can be especially noticeable in the mornings and evenings, when the sun appears close to the horizon. During such times, turbine blades can cast intermittent shadows that completely obscure sunlight each time a blade passes in front of the sun, causing a strobe-like effect. Shadow flicker can be an issue both indoors and outdoors when the sun is low in the sky.
26. Prolonged exposure to the strobe-like effect of shadow flicker is not only distracting and annoying, it also causes headaches, nausea, and has been reported to cause seizures in certain individuals.
27. Wind turbines can also be very noisy, exceeding prescribed decibel limits in many residential areas.
28. In addition to the noise made by the mechanical equipment inside turbine towers, turbines also cause aerodynamic noise. Aerodynamic noise is created by wind passing over the blades of a wind turbine. The tip of a 40-50 meter blade can travel at speeds of over 140 miles per hour under normal operating conditions. As the wind passes over the moving blade, the blade interrupts the laminar flow of air, causing turbulence and noise. Although current blade designs attempt to minimize the amount of turbulence and noise caused by wind, it is not possible to completely eliminate turbulence or noise from turbines.
29. Those who live near wind turbines have described the noise that turbines make as a rhythmical beating that sounds like “like a train that never gets there,” a “distant helicopter,” “thumping,” “thudding,” “pulsating,” and “beating.”
30. In addition to this audible thumping, turbines also emit inaudible low frequency sound waves known as infrasound. Although these sound waves are below the range of sound audible to humans, prolonged exposure can disturb sleep and impair mental health. Infrasound has been linked to increased instances of insomnia, stress, stroke, heart failure, immune system problems, dizziness, vertigo, nausea, ringing in the ears, breathing problems, abdominal and chest pain, urinary problems, effects on speech, and headaches. Further, high noise environments negatively impact learning in young children, making it hard to concentrate and communicate with others.
31. Health effects related to noise emissions from wind turbines have been observed in individuals living up to three miles from turbines, with the effects being greatest for those within one mile.
32. Individuals who live near Defendant’s wind farms usually decide to move away from the farms shortly after their installation due to the various ways that turbines interfere with their use and enjoyment of their property, including issues stemming from shadow flicker, noise emissions, and related health issues. However, many who reside near Defendant’s wind farms are unable to move due to the financial strain caused by the decreased value of their property and the inability to find a buyer willing to live near a wind farm.
Facts Specific to Plaintiff
33. Plaintiff owns a plot of land located at 2034 Rd. 1900, Blue Hill, Webster County, Nebraska. Plaintiff’s plot is approximately 11 acres in size, and Plaintiff currently resides in a single-family dwelling located on his land.
34. Plaintiff’s plot has been in his family for decades. Plaintiff grew up on his land, and he purchased it from his father.
35. Plaintiff’s property is adjacent to the Cottonwood Wind Farm, a wind turbine farm owned and operated by Defendant. Defendant began constructing the Cottonwood Wind Farm in or about mid 2017, and the turbines began commercial operation in or about November 2017.
36. The Cottonwood Wind Farm is miles-long and consists of more than 40 wind turbines built and maintained by Defendant.
37. The rear of Plaintiff’s residence faces the Cottonwood Wind Farm. In relation to Plaintiff’s property, the turbines are located to the east, south, and west of Plaintiff’s residence. The nearest turbine is located approximately 1,300 feet from Plaintiff’s property line.
38. Since the turbines near Plaintiff’s property began operating, the turbines have negatively affected, invaded upon, and interfered with the Plaintiff’s use and enjoyment of his property by:
a. creating sustained, incessant, cyclical, and highly disturbing and annoying audible noise created by and emitted from the turbines, often described as sounding like an airplane flying overhead that never flies away;
b. creating vibrations or amplitude modulation of sound pressures or a pulse sensation when the rotating blades of the turbines pass by the turbine pedestal;
c. creating a shadow flicker/strobe light effect that often covers all of Plaintiff’s property and intrudes into Plaintiff’s home when the rotating blades of the turbines pass in front of the sun;
d. disrupting and/or preventing Plaintiffs’ ability to entertain guests or relatives, who are unable to visit for extended periods of time due to headaches and sleep disruption caused by the turbines;
e. creating highly visible glare or glint which emanates from the turbines when they reflect sunlight;
f. disrupting and obscuring Plaintiff’s views and vistas with turning blades, where such vistas were previously unobstructed;
g. preventing Plaintiff from enjoying normal outdoor family activities on his property such as barbeques, and other recreational activities;
h. Preventing Plaintiff from keeping his windows open due to persistent noise.
39. As a direct and proximate result of Defendant’s ongoing interference with Plaintiff’s use and enjoyment of his property, Plaintiff has suffered and continues to suffer:
a. an inability to sleep, repeated awakening during sleep, and sleep deprivation;
b. headaches;
c. vertigo and/or dizziness;
d. nausea;
e. stress and tension;
f. fatigue;
g. and anxiety and emotional distress.
40. The Cottonwood Wind Farm and the impact it has had on Plaintiff’s property has thus substantially and unreasonably interfered with Plaintiff’s use and enjoyment of his property. On information and belief, Plaintiff’s property has decreased and will continue to decrease in value due to its proximity to Defendant’s wind turbines, and Plaintiff will be unable to lease or sell his property for its fair market value prior to installation of the turbines.
COUNT I: Private Nuisance …
COUNT II: Negligence …
Dated: March 1, 2019
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