Sowers v. Forest Hills Subdivision

294 P.3d 427 (2013)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

D informed Ps that he planned to construct a wind turbine on his residential property. D's neighbors and P filed a complaint in district court claiming that the proposed wind turbine posed a potential nuisance because it would generate constant noise and obstruct the views of neighboring properties. Ds sought to permanently enjoin construction of the wind turbine and requested preliminary injunctive relief. The court heard testimony that the subdivision was a very quiet area and that the turbine would obstruct views and create noise and shadow flicker. The court heard that the proposed wind turbine would diminish property values in the neighborhood. A renewable energy specialist testified that the proposed wind turbine would likely generate the same level of noise as 'the hum of a highway,' and a contractor hired to construct the turbine testified that there was no way to mitigate the shadow flicker caused by the wind turbine. The district court conducted a site visit to the location of a comparable wind turbine. D brought a decibel-reading machine that indicated that the noise from the wind turbine did not exceed 5 decibels from 100 feet away. A neighbor to that wind turbine testified that it produced some noise and shadow flicker, but that the turbine did not bother him. The district court also visited D's home in Forest Hills. The district court granted the permanent injunction. The court held the turbine would substantially interfere with the neighboring residents' enjoyment and use of their property. D appealed.