PORTSMOUTH – Despite hearing claims of migraines, loss of sleep and astronomical electric bills, a Newport County Superior Court judge denied a motion for a preliminary injunction – filed by a group of residents – to stop the town’s operation of a wind turbine near the high school.
Eight abutters, who live between 740 and 1,155 feet from the turbine, filed a complaint in Superior Court in November 2021. Online court records, though, indicate one of the plaintiffs recently was removed from the case.
Judge Richard Licht denied the motion for a preliminary injunction on March 23. An email and phone call to the attorney representing the plaintiffs, Joseph F. Hook, were not returned.
Background on the case
Pursuant to an agreement with the town, WED Portsmouth One LLC installed a wind turbine at Portsmouth High School in 2016, which replaced a turbine that had been there between 2009 and 2012.
The plaintiffs – Denise and Mark Wilkey, Jayme and David Souza, Donna and Anthony Olszewski, Mark Jones and David Schuller (removed from the case on March 28) – filed a complaint against WED and the town, alleging the new turbine constituted both a public and private nuisance.
The plaintiffs allege in the complaint the new turbine generates more noise and shadow flickers than the previous one.
“We have lost a lot of the enjoyment of our once peaceful property,” Denise Wilkey wrote in an affidavit included in court records. “We had to abandon 2 bedrooms on that side of the house and retreat to the rear bedrooms, with air conditioner, white noise machine and earplugs. It’s the only way to block it out at night. I also had to get a prescription for sleeping pills.”
Other plaintiffs mentioned their need for prescription sleeping pills. Some alleged the shadow flicker caused migraines, and some complained of dizziness and nausea.
Judge Licht, in his written decision, noted Donna Olszewski said she runs her air conditioning and fan year-round because she can’t open her windows due to the noise from the turbine. Her electric bills were so high she had to take out a loan to install solar panels on her home.
The defendants – the town and WED – asserted the plaintiffs had no empirical (i.e. non-testimonial) evidence to support their claims of pain and suffering, aggravation and emotional distress.
The judge’s decision
The plaintiffs offered Dr. Harold Vincent, who holds a PhD in ocean engineering from the University of Rhode Island and is an expert in underwater acoustics, as an expert on noise.
Vincent conducted a study of the turbine noise levels and found “this wind turbine creates consistently higher noise levels than other previous noise studies, but he could not link this high noise level to any of the Plaintiffs’ alleged adverse health effects,” Licht wrote in his decision.
Plus, Vincent’s “report would probably be found unreliable as his methodology is not used by anyone else. It has not been peer reviewed. It has chain of custody issues,” Licht wrote. “Moreover, while Dr. Vincent exhibited extensive knowledge of acoustics, his expertise is with underwater acoustics.”
The plaintiffs claimed the turbine diminished their property values, but provided “no evidence in support other than some hearsay testimony that a couple of Plaintiffs testified that they consulted a real estate expert who said the turbine would affect their property values. No appraisals were done.”
And the plaintiffs did not present evidence the turbine emitted noise above the allowed levels stipulated in the town’s noise ordinance, Licht wrote in his decision.
The town and WED also argued Portsmouth voters approved the construction of the turbine by referendum in 2009, “which is nothing if not indicative of the public interest,” Licht wrote in his decision.
Licht opined that “living with the wind turbine for over five years (inclusive of its noise and shadow flicker) is an exceptionally long time to now claim irreparable, immediate harm.”
|Wind Watch relies entirely
on User Funding