Resource Documents: New Jersey (2 items)
Documents presented here are not the product of nor are they necessarily endorsed by National Wind Watch. These resource documents are provided to assist anyone wishing to research the issue of industrial wind power and the impacts of its development. The information should be evaluated by each reader to come to their own conclusions about the many areas of debate.
Author: New Jersey Superior Court
Brief Fact Summary. Plaintiffs are landowners who are seeking to permanently enjoin the use of Defendants’ windmill, because they allege that the windmill is a nuisance.
Synopsis of Rule of Law. A private nuisance is an unreasonable interference with the use and enjoyment of one’s land.
Facts. The parties are all residents of a neighborhood, which has single-family homes. In June of 1981, the Defendants, in an effort to save money on energy bills, had a windmill constructed on their property, which is ten feet from the home of one of the Plaintiffs. The windmill began making loud noises, which were offensive to the neighbors. The Plaintiffs suffered various stress-related symptoms, together with an inability to peacefully enjoy their homes. The Plaintiffs initially sought relief through the local city council due to the zoning laws. The council issued an order limiting the time the windmill could operate, but the problem continued until Plaintiffs brought this action. Following an initial hearing, a temporary restraining order was issued, which restricted the windmill’s operation to two hours per day, which was the time claimed by Defendants as necessary for maintenance. The restraints continued through the trial in this court. Measurements of the noise levels of the windmill reveal that the decibel level is 56 to 61, and the noise is constant because the windmill is next to the Atlantic Ocean, which provides a constant supply of wind. The city ordinance on noise limits noise to 50 decibels. The sounds of the windmill are like a large motor with blades cutting through the air. The sounds are difficult to ignore and impossible to escape. The Defendants raised a counterclaim against the Roses for their heat pump, which was found to operate at above 50 decibels.
Issue. Is the Defendants’ windmill a nuisance?
Held. Yes. The windmill must be shut down, but the counterclaim against the Roses cannot stand as an actionable nuisance.
To determine a private nuisance, the court will consider the cases on a case-by-case basis, balancing the competing interests in property as required by law. A nuisance must be proven by clear and convincing evidence.
The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land. The utility of Defendant’s conduct must be weighed against the quantum of harm to Plaintiff. The question is not simply whether someone is annoyed or disturbed, but whether the annoyance or disturbance arises from an unreasonable use of the neighbor’s land. Sans v. Ramsey Golf, 149 A.2nd 599 (N.J. 1959).
Unreasonableness is judged not according to exceptionally refined, uncommon or luxurious habits of living, but according to the simple tastes and unaffected notions generally prevailing among plain people. Stevens v. Rockport Granite Co., 104 N.E. 371 (Mass. 1914).
Noise, standing alone, may justify a finding of nuisance is two elements are present: 1) injury to the health and comfort of ordinary people in the vicinity; and 2) unreasonableness of that injury under all the circumstances. The court found that the Defendants’ windmill was a nuisance due to the noise level. However, the counterclaim against the Roses’ heat pump must fail because the heat pump was not operated as frequently or as long in duration as the windmill.
The zoning laws were found to be an alternate rationale for the court’s finding.
Discussion. This court found that the utility of the Defendants (conserving energy/saving money) was outweighed by the quantum of harm done to the Plaintiffs’ health and enjoyment of their homes. Thus, the windmill was found to be a nuisance. Note, however, that if the Defendants were not using their land in an unreasonable manner, the nuisance would not have been found.
Citation. 22 Ill.187 N.J. Super. 210, 453 A.2d 1378 (Super. Ct. Ch. Div. 1982)
—By courtesy of Casebriefs
Download original document: “Rose v. Chaikin” – by courtesy of Google Scholar
Author: N.J. Dept. of Environmental Protection
Scott Brubaker, the DEP’s assistant commissioner for land use management, informs Delsea Energy in an Aug. 20 letter “that the Delaware Bay is not an appropriate area for development of wind energy”:
[I]n considering this issue, the Department has determined that we have, over many years of study and evaluation, developed sufficient information regarding the diversity, scope, and importance of avian resources in and around the Delaware Bay. Based on these data, we conclude that, at this time, this area is not appropriate for a large-scale wind turbine project due to concerns with impacts to migratory and other bird populations. …
The concentration of raptors that occurs in the Cape May stopover, along with the various patterns of flight (foraging and low level flight) as they funnel into and mill around the region, makes them vulnerable to collision with turbines placed within the same airspace (<100 m); two raptors (osprey and peregrine falcon) have been killed by an array of five turbines located in wetlands near Atlantic City after one year of monitoring (Mizrahi et al. 2008). The density of land birds (raptors and songbirds) concentrating in the region, and the fact that the majority are inexperienced, juvenile birds, increases the likelihood of collisions as birds make their way into and out of this migration stopover. Perhaps of equal importance is the likelihood of turbines causing migrating birds to avoid habitat, and therefore be subject to habitat loss that is additive to that occurring at a high rate on Cape May peninsula. The loss of habitat to development has already had a negative impact on migrating raptor habitat use on the peninsula, causing birds to move farther to find adequate foraging and roosting areas (Frank 2007). Post-construction carcass surveys have shown that passerines are among the most likely avian groups to be impacted by collisions with wind turbines (Howe et al. 2002, Johnson et al, 2002, Schmidt et al. 2002, Kerns and Kerlinger 2004, Mizrahi et al. 2009). Although migrating songbirds often fly at higher altitudes than current turbine rotor blades can reach, they fly lower when crossing over bodies of water and this makes them more likely to be flying in the rotor swept area (Huppop et al. 2006). They also fly at lower altitudes when the conditions for migrating are poor (e.g., fog, low cloud ceiling, headwinds), and in areas where stopover habitat exists as the descend and ascend to take advantage of resting and foraging areas (Langston and Pullen 2003). Radar data of bird migration from the Cape May area recorded the presence of thousands of low-flying migrants (<100 m in altitude), confirming that migrants fly at lower altitudes in the Cape May stopover than might be expected during migration (Mizrahi et al. 2009). References:
- Frank CA. 2007. A comparison study of migratory raptor distribution and habitat use at the Cape May peninsula stopover. M.S. Thesis. Rutgers University, New Brunswick.
- Howe RW, W Evans, AT Wolf. 2002. Effects of wind turbines on birds and bats in northeaster Wisconsin: a report submitted to Wisconsin Public Service Corporation and Madison Gas and Electric Company.
- Huppop O, J Dierschke, KM Exo, E Fredrich, R Hill. 2006. Bird migration studies and potential collision risk with offshore wind turbines. Ibis 148:90-109.
- Johnson GD, WP Erickson, MD Strickland, MF Sheperd, DA Shepard, SA Sarappo. 2002. Collision mortality of local and migrant birds at a large-scale wind-power development on Buffalo Ridge, Minnesota. Wildlife Society Bulletin 30 (3):879-887.
- Schmidt E, AJ Piaggio, CE Bock, DM Armstrong. 2002. National wind Technology Center environmental assessment: bird and bat use and fatalities—final report. University of Colorado, Boulder.
- Kerns J, P Kerlinger. 2004. A study of bird and bat collision fatalities at the Mountaineer Wind Energy Center, Tucker County, West Virginia: Annual report for 2003. Prepared by Curru & Kerlinger LLC for FPL Energy and Mountaineer Wind Energy Center Technical Review Committee.
- Mizrahi DS, KA Peters, V Elia. 2008. Post-construction wildlife monitoring at the Atlantic City Utilities Authority–Jersey Atlantic Wind Power Facility. Draft report by New Jersey Audubon Society, Cape May Court House, NJ.
- Mizrahi DS, R Fogg, KA Peters, PA Hodgetts. 2009. Assessing nocturnal bird and bat migration patterns on the Cape May peninsula using marine radar: potential effects of a suspension bridge spanning Middle Thorofare, Cape May County, New Jersey. Draft report. Cape May Court House, NJ.
- Langston RHW, JD Pullan. 2003. Windfarms and birds: An analysis of the effects of windfarms on birds, and guidance on environmental assessment criteria and site selection issues. Convention on the conservation of European wildlife and natural habitats, Standing Committee, 23rd meeting, Strasbourg, France
Also includes a letter from the Atlantic Flyway Council:
The Council is greatly concerned about the potential negative impacts to avian resources by the proposed Delsea Energy project in Delaware Bay, Including collisions with wind turbines, direct habitat loss, and displacement and disturbance during construction and future maintenance activities …
Both waterfowl and migrating shorebirds have been shown to be sensitive to disturbance caused by human activities, including avoidance of areas where large nearshore wind turbine arrays are located (per European studies). Placement, operation, and maintenance activities associated with wind turbines in Delaware Bay are likely to disrupt feeding and roosting waterfowl and staging shorebirds directly or by displacing them from areas where critical resources are located. This disruption could be particularly devastating to staging shorebirds that must increase fat reserves in a limited time to successfully continue their migration. Placement of turbines and associated project infrastructure such as power collection lines in marsh habitat areas will also directly reduce habitat available for waterfowl, shorebirds, and other migratory birds.
Download original document: “N.J. DEP letter to Delsea Energy concerning birds in Delaware Bay”