Legal Case Summaries: Sowers v. Forest Hills Subdiv., 294 P.3d 427 (Nev. 2013).
Nevada’s highest court has considered whether to uphold an injunction preventing the construction of a wind turbine in a residential subdivision.
Rick Sowers (“Sowers”) communicated to his neighbors in the Forest Hills Subdivision (“Subdivision”) that he planned to build a wind turbine on his property. Sowers’s neighbors Ann and Karl Hall (“Neighbors”) joined the Subdivision in filing a lawsuit seeking an injunction preventing the construction of the wind turbine because it presented a nuisance.
During the injunction hearing, the trial court heard testimony that the Subdivision was a very quiet place. The judge also visited a comparable wind turbine to view the possible effects a wind turbine could have and he also visited the Subdivision itself. A resident of the Subdivision who was also a real estate broker provided testimony that the wind turbine would negatively impact property values in the Subdivision if it was built.
The trial court made the following factual determinations: the Subdivision had panoramic views; the Subdivision was a very quiet neighborhood; and the wind turbine would cause a negative impact on property values as well as the character of the neighborhood. Based on those findings, the trial court declared the wind turbine a nuisance because it would interfere with the other residents of the Subdivision’s enjoyment of their property. The trial court granted the injunction request, and Sowers appealed this ruling.
The Supreme Court of Nevada affirmed the permanent injunction. The court reviewed the requirements for the finding of a nuisance. A nuisance is something “which is injurious to health, or indecent and offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life and property.” There are different kinds of nuisances; a “nuisance at law” is one that will always be determined to be nuisance, while a “nuisance in fact” is one that becomes a nuisance based on the circumstances and case-by-case analysis of the facts.
The court determined that wind turbines do not constitute a nuisance at law. Local building codes allow for the building of wind turbines and the state has a policy of favoring renewable energy sources. Additionally, there was testimony at the trial court that living next to a wind turbine did not bother people in certain instances. Therefore, wind turbines aren’t nuisances at law in Nevada; instead, whether Sowers’s wind turbine constituted a nuisance in fact would be determined by weighing the surrounding factors.
The court upheld the permanent injunction. When evaluating whether a condition constitutes a nuisance, the court must balance the competing interest of landowners. The main complaints about the wind turbine were its likely noise, the impact it would have on the neighborhood aesthetics, the “shadow flicker” caused by the turbine, and also the price impact on home values. The evidence showed that this was a quiet neighborhood and that the wind turbine would substantially impact the neighborhood, not only because of its noise and size but also the negative financial impact it would have on the properties. Therefore, the court upheld the permanent injunction barring Sowers from constructing the wind turbine in the Subdivision because the factual evidence supported the finding that this wind turbine constituted a nuisance-in-fact.
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