Several weeks ago The New York Times ran an article about noise and vibrations caused by wind turbines. The article noted that excessive noise has led to complaints and even lawsuits from neighboring landowners. This shows that while new wind turbine designs are quieter and safer than earlier models, operators of wind turbines (as well as those who lease land to them) still need to remain cognizant of possible nuisance claims that can be brought by neighboring landowners.
To prevail on a nuisance claim, a neighboring landowner needs to show that the wind turbines substantially interfere with the use and enjoyment of his or her property. This can be a difficult and fact intensive proposition, especially since courts tend to consider the social utility of the complained of use.
However, the risks are substantial: a prevailing landowner may be entitled to recover money damages for dimunition of property values or even an injunction that restricts the continued operation of the wind turbines.
Developers and landowners might consider the following ways to avoid potential nuisance claims:
- Carefully compare potential wind farm sites. Rural and open spaces far away from residential developments are best.
- Examine the feasibility of negotiating and obtaining advance waivers from adjoining landowners before beginning construction. Maybe a neighbor would be willing to waive a nuisance claim for something as simple as having a say in the color or placement of the wind turbines.
- Assess the cost-effectiveness of operating the wind turbines at a slower rate or only during certain hours of the day.
- Inquire about insurance plans that cover nuisance claims.
Wind energy is important, both for the economy and the environment. Care needs to be taken to minimize the risk of nuisance claims derailing the industry’s continued growth.
Photo by the russians are here (Flickr)