December 8, 2011
Michigan

Windmill can stay

By Amy Hubbell, of the Enterprise staff, Leelanau Enterprise, www.leelanaunews.com 8 December 2011

Shandy and Penny Spencer can continue to operate their residential wind turbine in Centerville Township after prevailing last week in 13th Circuit Court.

Judge Thomas G. Power ruled Nov. 22 that the turbine does not constitute a “nuisance,” as alleged by the Spencers’ neighbors, and can remain in its current location.

“We’re pleased with the judge’s findings,” Penny Spencer said. “I wish everyone could get along.”

The lawsuit was looked upon by wind power proponents as a possible roadblock to future energy needs.

News of the decision was welcomed by BJ Christensen who took an interest in the case for a couple of reasons: she grew up on a farm with a windmill and she sees wind energy as part of the solution to reduce dependency on fossil fuels.

“The Spencers did everything right. They got the right permits and followed the zoning ordinance,” Christensen said.

The Spencer’s neighbors, Richard and Kay Kobetz, filed suit in January claiming that their 112-foot windmill installed on the couple’s lavender farm constitutes a “nuisance,” and claiming that they should have been “consulted” prior to construction. Their properties, located on the west side of Co. Rd. 651 in Centerville Township, are adjoining.

In addition, the Kobetzes claimed the wind tower’s motion and noise from the turbine made them physically ill, lowered their property value and detracted from enjoyment of their property.

Power disagreed, citing a Michigan Supreme Court decision that found noise could only be considered a “nuisance” when it results in “actual physical discomfort.”

“I don’t think this even begins to reach that standard,” the judge said. “It’s not a nuisance.”

The decision came 10 days after the conclusion of a three-day bench trial in which attorneys for both parties called witnesses to the stand to support their positions. The trial also included an onsite visit to the usually quiet neighborhood where the parties live.

The visit played a pivotal part in the Power’s decision.

“The machine does produce noise, a hum or low whine,” Power said. “But I couldn’t hear it inside (the Kobetzes home).”

The extent to which the turbine, located 800 feet from the plaintiff’s home, could be heard depended upon the direction of the wind, the judge said.

“I heard nothing at the property line and couldn’t hear it while walking through the tall grass,” the judge said. During his tour of the Spencer property, Power noted a low whine outside and within the home when the wind was coming from the west.

“In the home I could hear it but not much louder at Spencers than at Kobetzes,” the judge said.

Power noted that the turbine could be heard on the plaintiffs’ deck, but no worse than noises allowed and common in Centerville’s agricultural zoning district such as logging or mining.

“It’s a different sound, but no more serious sound than what’s allowed,” the judge said.

Witnesses for the Kobetzes included Marc Green, a visual expert from Toronto; Richard James from E-Coustic Systems, an acoustic consultant from Okemos and Michael McCann, an Illinois real estate appraiser. Testimony from all three were cited in the decision.

“Your one expert … was the single-most unpersuasive expert I’ve ever heard,” the judge said. “I didn’t believe it.”

Power also questioned the testimony of McCann, who stated that the Kobetz property had fallen in value 25 percent since the turbine was installed. The appraiser opined that the home’s value fell from $1.27 million to $950,000.

“The finding was supported by appraisal based on a study of the impact of industrial-size wind farms on properties in that vicinity – not residential turbines,” Power said.

The Spencers claimed that use of the turbine in conjunction with their lavender-growing operation makes it exempt from regulation under the Michigan Right to Farm Act (RTFA).

Attorneys for the plaintiffs argued that the turbine is ancillary to the business and provides more power to the Spencer’s home than their “farm.”

The judge said that use of the turbine in this instance would not fall under the RTFA. Still, he found the windmill to be a reasonable use.

“It may not be practical but the (Spencers) benefit from ‘free electricity’ and it contributes to the environment with them being off the grid,” Power said. “It is not unreasonable.”

Attorneys for the Spencers also sought sanctions from the court, asking that the lawsuit be deemed “frivolous.” In making a determination, the judge had to determine whether the claim was supported by “fact of law.”

“You can hear this low whine … a hum,” Power said. “It’s not something that didn’t exist.”

The judge also stated that the lawsuit had brought about changes in the turbine, such as painting to reduce

“flicker”, which would mitigate issues cited in the Kobetzes’ complaint.

As of press time Wednesday the Kobetzes said they haven’t yet determined if they’ll appeal the decision.

“While the court ultimately sided with the defendants, we continue to believe that audible wind turbine noise that interferes with a neighboring property owners’ use and enjoyment of their property constitutes a nuisance,” the Kobetzes said in a written statement. “While we regret that a lawsuit was necessary, given the lack of sufficient zoning in Centerville Township, we had no other alternative.”

The Kobetzes suggested that adoption of a uniform small wind ordinance by townships would eliminate current “gray areas” in zoning and ensure a consistent approach to growing wind power in Leelanau County.

“The turbine does have some effect (on neighbors), but it’s a modest interference,” the judge said.

URL to article:  https://www.wind-watch.org/news/2011/12/08/windmill-can-stay/