March 8, 2012
Nevada

Single wind turbine in Reno community could set significant precedent

Written by Jason Hidalgo, Reno Gazette-Journal, www.rgj.com 8 March 2012

Arguing neighbors often make for good comedy fodder in films and TV shows.

But a dispute between neighbors about the legality of installing a 25-kilowatt wind turbine in one Reno community could have serious repercussions for the entire state’s fledgling wind industry.

The ongoing tiff started, interestingly enough, with an introduction letter, resident Richard Sowers said.

Last December, the 58-year-old commercial airline pilot moved from Incline Village into a two-acre property in south Reno’s Forest Hills subdivision. One of the first things Sowers did after moving in was to send a note to his neighbors.

“I introduced myself and my daughter and explained that I bought this property and that I looked forward to bringing it back up to the standards of the neighborhood after it went through a time of neglect,” said Sowers, who was reached by phone during a layover in Japan.

One part of the letter, however, would ultimately pit Sowers against his new neighbors. Sowers told them he wanted to install a wind turbine in his backyard.

Sowers, who grew up in a farm with a windmill, always has had a soft spot for wind turbines.

The ability to generate wind power was a key consideration for his decision to choose this neighborhood, Sowers said. Washoe County’s clear-cut guidelines regarding wind turbine installation were also a factor, Sowers added.

“Given the big push in Nevada for going green and making the state a green energy leader, I thought the time has come for a sea of change to occur,” Sowers said. “I thought there was going to be this big embrace for green.”

Ominous winds

Sowers’ plan to install a wind turbine quickly was met with concern.

Shortly after sending out his letter, Sowers said he got a call from neighbor Karl Hall, deputy district attorney for Washoe County, to request a meeting. After walking around his property and discussing different options about the proposed installation, both neighbors failed to come to an agreement.

A key sticking point was the turbine’s height. Sowers initial plan was to install a turbine that was going to be more than 75 feet. Although Washoe County codes generally limit residential wind turbine installations to 75 feet, it allows for bigger turbines if a special permit is issued.

The county also requires turbines to be installed at a distance from the property line equal to the turbine’s height – known in the industry as the “set back” requirement. This prevents residents of smaller properties from installing a turbine that’s too big for their neighborhood.

Given his property’s size, however, there was more than enough space to satisfy the county requirements for the turbine he wanted to install, Sowers said.

“I explained the county code restrictions that the turbine had to be in the backyard, and it also had to be oriented a certain way,” Sowers said. “I was even willing to put it back another 58 feet from the property line so it would be closer to my house and farther from his. But he wasn’t happy with it regardless.”

Ann Hall, Karl Hall’s wife, said they had legitimate concerns, especially since the turbine was so large.

“All of our doors face west,” said Hall, a lawyer with Reno law firm Bowen Hall. “We also have windows facing west so we would see this thing every time we looked outside and every time we stepped out of the house. It would affect us more than it would him because it’s in front of our house and it was behind his.”

Legal woes

Sowers said he ultimately informed the Halls he was going ahead with the installation.

At that point, several homeowners met to prepare an amendment to Forest Hills Subdivision’s covenants, conditions and restrictions (commonly known as CC&Rs) to limit any wind turbine installation to 10 feet. According to court documents, the amended CC&R was served to Sowers on Dec. 22.

However, Nevada Revised Statute 278.02077 prohibits any governing body or legal instrument from prohibiting or unreasonably restricting the owner of any “real property” from using a system for obtaining wind energy on a property. Sowers went ahead and asked Reno-based Planet Safe Systems, Inc., in January to start prepping the site for the wind turbine installation.

On Jan. 7, Sowers was served a temporary restraining order after the Halls filed a complaint and motion for temporary restraining order and preliminary injunction on behalf of Forest Hill Subdivision.

Further complicating Sowers’ case is the fact that he and Planet Safe Systems did not get a building permit before starting their site prep, said Trevor Lloyd, senior planner for Washoe County Community Development. The agency developed the codes the county uses for wind turbine installation.

Lloyd, however, said that Community Development would have approved such a permit if it was requested, particularly after Sowers decided to downgrade to a 60-foot turbine.

“We never saw a (building permit application), so a permit was never granted,” Lloyd said. “But based on the information relayed to me about the height, set back and size of the turbine, Community Development would have approved such a request.”

Due to the lack of a building permit, a “red tag” from the Washoe County Building Department also was issued on Jan. 7. According to Sowers, they didn’t get a permit at first because they were only doing prep work and haven’t poured concrete yet. Sowers also was traveling for work at the time and wasn’t around when the temporary restraining order was served. Planet Safe Systems, meanwhile, said the reason they started work was because the application was submitted and they expected the permit to be processed that day.

Even if the project would have been theoretically approved by Community Development, it doesn’t change the fact that he was in violation of the rules at that specific time, Ann Hall said.

“One issue here is that he still didn’t go through the permit process,” Hall said. “He started construction without getting a building permit and the discretionary special use permit since his wind turbine was in excess of 75 feet. He was in violation of both requirements and he even got red-tagged for it.”

A key ruling

On Feb. 24, Washoe County District Court Judge Brent Adams ruled in favor of the Halls, concluding that Sowers’ proposed turbine “unquestionably creates a nuisance.”

Besides hearing testimony from both parties and their witnesses, Adams also made a personal visit to the south Reno neighborhood and another location in Washoe Valley with a wind turbine similar in size to what Sowers wanted to install. The size of the turbine proved to be a key factor in Adams’ nuisance ruling.

“This Court was astonished by the size of the structure and the overwhelming impression of the gigantism,” Adams said in the findings of fact and conclusions of law.

Sowers has until March 25 to appeal, which he says he will do. Because of the potential for an appeal, Adams declined to comment on the case.

For Tom Clark, a renewable industry lobbyist who represents wind energy groups, Adams’ ruling has a chilling effect. Clark likened the ruling to “opening a Pandora’s box,” adding that it essentially ends all small-scale wind development in Nevada.

“We’re trying to put as much certainty as we can into the marketplace so homeowners, business owners and contractors can go forward with plans to use renewable energy,” Clark said. “But this judgment puts a lot of uncertainty into the market and makes it really difficult for us to proliferate renewable energy in the state.”

The precedent set by the case also could potentially throttle solar installations and bigger commercial wind projects, Clark said. If a resident can see a 300-foot wind turbine even though it’s a mile or two away, for example, the ruling technically could be used to bring up a nuisance case and shut those projects down based on appearance.

Shutting down renewable projects based on appearance also was a factor in the commotion caused within the industry by the introduction of Assembly Bill 122 by Assemblyman Pete Livermore, R-Carson City. If it’s passed, the bill will allow local jurisdictions to restrict the installation of renewable projects based on location and appearance.

“When you reduce the decision for being able to put a wind turbine into something subjective like aesthetics, then it makes it more difficult to install them,” said Paul Phillipson, vice president of Planet Safe Systems. “The purpose of the rule of law and codes is to make things objective and specific as far as what’s authorized and what isn’t.”

Inhibiting the renewable sector certainly is not his bill’s intention, Livermore said.

Instead, the goal is to make renewable installations more “urban-friendly” and ensure that measures are in place to protect residents from unintended consequences such as migraine headaches resulting from glare or flicker from renewable installations. Livermore also pointed out amendments he is considering for the bill, including changing the word “appearance” to “finish” to make it less general.

“When I say appearance, I don’t mean that these installations should be color-coordinated or anything like that,” Livermore said. “I certainly support green energy and think it’s important. I just want to give the planning commissions a little bit more leeway in upgrading ordinances when issues arise.”

Hall, meanwhile, said the Adams ruling won’t have the impact on the industry that Clark mentions. For one, the judge went out of his way to use language indicating that his judgment was specific to this case.

“A nuisance claim is hard,” Hall said. “You have specific standards to meet such as irreparable injury and the likelihood of success on the merits. It’s hard to prove that.”

Defining reasonable

At the heart of the debate on Adams’ ruling is his interpretation of the “reasonable” clause in NRS 278.02077.

The statute prevents governing bodies or homeowners’ associations from adopting rules that prohibit a homeowner from installing a renewable energy system. But there’s also a qualifier in the statute allowing for “reasonable” restrictions.

Using the statute, Adams ruled that the Forest Hill Subdivision amendment that restricts wind turbines to 10 feet is actually unreasonable and is thereby over-ridden by NRS 278.02077. However, Adams also added that the original CC&Rs addressing issues that impact property values are not necessarily inconsistent with Nevada Revised Statute.

For Washoe County’s code enforcement authority, it will be business as usual despite the ruling, Lloyd said.

“Until the code itself is challenged, then we will continue to regulate the code as it is currently written,” Lloyd said.

For Planet Side Solutions, the loss of a $130,000 turbine project cuts a lot deeper. Because of the loss of revenue from a project they already scheduled, the company had to lay off three people.

“We try to operate a business within the law, and now, we’re being told we can’t install a turbine even though we’re within the county’s code because of a subjective definition of what’s ‘reasonable,'” said Tim Brown, president of Planet Side Solutions. “It’s a little bit frustrating.”

Sowers said he understands the feeling.

“You have people paying lip service and say they support being green but when it comes to putting something in their neighborhood, they’re totally opposed to it,” Sowers said. “Now, I’m going to be in an appellate process that could take one to two years of my time and cost me $50,000 (in legal fees) even though I’m not violating any codes. I’m sure the Halls are wonderful people. I’d love to have them over if I ever get to hold a turbine-christening barbecue. I just think their concerns are overblown.”

Ann Hall, however, disagreed that the neighbors are anti-green, pointing out the number of properties with solar panels in the neighborhood. Zoning codes are also just one part of several competing property rights, Hall added. One of those other rights involves a body of law for nuisance, which applies to the type of wind turbine Sowers wanted to install, Hall said.

“He may adhere to standards set forth by zoning,” Hall said. “But with respect to the CC&Rs and nuisance, he would still be in violation.”

URL to article:  https://www.wind-watch.org/news/2012/03/08/single-wind-turbine-in-reno-community-could-set-significant-precedent-2/