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Residents settle Ubly lawsuit with wind companies  

Credit:  By Kate Hessling, Assistant News Editor, Huron Daily Tribune, www.michigansthumb.com 18 February 2012 ~~

BAD AXE – The 20 Huron County residents who filed a lawsuit claiming the Ubly-area Michigan Wind I development has harmed their quality of life and lowered their property values have agreed to settle with the wind companies.

As a result, the jury trial that was set to get under way next week in circuit court has been canceled.

The plaintiffs were seeking in excess of $25,000 and an injunctive relief ordering the companies to cease and desist their activities in the lawsuit filed May 11, 2010, in Huron County Circuit Court. The defendants were John Deere Renewables, Deere & Co., Noble Environmental Power LLC, Michigan Wind 1 LLC and RMT Inc.

Messages seeking additional information about the settlement were left with attorneys from Dykema Gosset PLLC, a Detroit-area firm representing the defendants, and Braun Kendrick Finkbeiner PLC, which represents the plaintiffs. No messages were returned as of late Friday. It’s expected the terms of the settlement will be confidential.

The thrust of the lawsuit was that construction and operation of the wind farm caused the plaintiffs to suffer adverse health effects, emotional distress and economic damages, according to court documents from the Huron County Clerk’s office. It consisted of four counts: Private nuisance, public nuisance, negligent design of a wind farm and negligent misrepresentation. RMT Inc. was named only in the negligent design claim.

Some of the counts – for negligent design and misrepresentation – were dismissed by Judge M. Richard Knoblock in Huron County Circuit Court in August 2010.

RMT Inc. constructed the wind farm, which was developed by Noble Environmental Power. Noble sold the development to John Deere, which later sold it to Exelon Wind.

The plaintiffs in the case are Ubly area residents David Peplinski, Marilyn Peplinski, Frank Peplinski, Georgia Peplinski, Terry Peplinski, Christine Peplinski, Curtis Watchowski, Lynda Watchowski, James Czewski, Delphine Czewski, Dennis Mausolf, Darcy Mausolf, Dale Laming, Elaine Laming, Lynn Sweeney, Pam Sweeney, Alger Nowak, Mary Nowak, Randy Weber and Angela Weber.

Agreements were reached between the plaintiffs and two of the defendants, which resulted in Noble being dismissed from the case Sept. 19, 2011, and RMT being dismissed Oct. 24, 2011.

Court records show both the plaintiffs and John Deere Renewables, Deere & Co. and Michigan Wind 1 agreed to dismiss the count for public nuisance.

The only count left unresolved prior to this week was a claim of private nuisance, which alleged the wind companies interfered with the plaintiffs’ rights, including their property rights, by creating and operating the wind farm.

The count claimed the intrusions included:

• Low frequency and impulse noise created by the wind turbines, which range between 1,100 and 1,700 feet away from each plaintiff’s home.

• Sustained and highly disturbing audible noise created by the wind turbines.

• A flicker/strobe light effect that covers the plaintiffs’ properties when sunlight passes through the rotating turbine blades.

“The intrusions caused by the turbines in the wind farm cause plaintiffs actual physical discomforts and would cause such physical discomfort to a person of ordinary sensibilities,” the lawsuit stated.

Adverse health effects listed in the lawsuit included: the inability to sleep and repeated awakening during sleep, headaches, dizziness, stress and tension, extreme fatigue, diminished ability to concentrate, nausea and other physiological cognitive effects.

Earlier this month, Deere and Michigan Wind I filed a motion asking the court to dismiss claims regarding adverse health effects because the plaintiffs failed to provide a witness other than themselves to support an injury claim. Because the plaintiffs did not provide a single expert or medical record, the health claims were based on conjecture and speculation, according to court documents.

In January, the defendants filed motions seeking to have a number of items excluded as evidence in the trial, including evidence about shadow flicker, sound studies provided by the plaintiffs, easements and lease agreements with landowners not party to the lawsuit; and allegations and claims or nuisance actions concerning wind farms other than Michigan Wind 1.

The wind companies previously attempted to exclude opinions and testimony of the plaintiffs’ property valuation expert, L. Mark St. Clair, who inspected the residences and outbuildings at the plaintiffs’ properties and said there was a $829,545 combined loss in property value since Jan. 1, 2009.

“In terms of damages as they may relate to the subject property, it appears that there have been damages that have resulted from this project,” St. Clair wrote in a retrospective value loss opinion.

The wind companies sought to excluded St. Clair’s opinions and testimony, challenging St. Clair’s methodology and data relied upon in rendering his opinion that Michigan Wind 1 has negatively impacted the plaintiffs’’ property values.

Because Knoblock denied the motion to exclude St. Clair’s opinions and testimony on Dec. 23, the above information could have been included in the jury trial.

Even though the lawsuit was whittled down to just about one count, court documents indicate the matter could have resulted in a lengthy trial, as the witness list for the defense had more than 100 names alone. A decision on the other items (noise studies, shadow flicker, etc.) that the defense sought to exclude as evidence was not made before the settlement was confirmed. So it’s not known whether those matters would have been considered by a jury.

The settlement was confirmed this week in a letter the plaintiffs’ attorney, Craig Horn, faxed to the circuit court.

Source:  By Kate Hessling, Assistant News Editor, Huron Daily Tribune, www.michigansthumb.com 18 February 2012

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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