Sowers v. Forest Hills Subdivision

• Decision Date: 14 February 2013
• Docket Number: No. 58609.,58609.
• Citation: 294 P.3d 427,129 Nev. Adv. Op. 9
• Parties: Rick SOWERS, an Individual, Appellant, v. FOREST HILLS SUBDIVISION; Ann Hall and Karl Hall, Individually, Respondents.
• Court: Nevada Supreme Court

294 P.3d 427
129 Nev. Adv. Op. 9

Rick SOWERS, an Individual, Appellant,
v.
FOREST HILLS SUBDIVISION; Ann Hall and Karl Hall, Individually, Respondents.

No. 58609.

Supreme Court of Nevada.

Feb. 14, 2013.

[294 P.3d 429]

Fahrendorf, Viloria, Oliphant & Oster, LLP, and Patrick R. Millsap, Reno, for Appellant.

Karl S. Hall, Reno; Bowen Hall and Ann O. Hall, Reno, for Respondents.

Before PICKERING, C.J., HARDESTY and SAITTA, JJ.

OPINION
By the Court, HARDESTY, J.:

In this appeal, we address whether the district court properly concluded that, under the particular circumstances and surroundings of the case, a proposed residential wind turbine would constitute a nuisance warranting a permanent injunction against its construction. Below, respondents Forest Hills Subdivision, Ann Hall, and Karl Hall (collectively,

[294 P.3d 430]

the Halls) sought to permanently enjoin their neighbor, appellant Rick Sowers, from constructing a wind turbine on his residential property, asserting that the proposed turbine would constitute a nuisance.¹ The district court agreed and granted the permanent injunction.

We conclude that, in this case, substantial evidence exists to support the district court's conclusion that the proposed wind turbine constitutes a nuisance. We also determine that the wind turbine at issue would create a nuisance in fact. In reaching our conclusion, we hold that the aesthetics of a wind turbine alone are not grounds for finding a nuisance. However, we conclude that a nuisance in fact may be found when the aesthetics are combined with other factors, such as noise, shadow flicker, and diminution in property value. In this case, the district court heard testimony about the aesthetics of the proposed wind turbine, the noise and shadow flicker it would create, and its potential to diminish surrounding property values. Based on this evidence, we conclude that substantial evidence supports the district court's finding that the proposed residential wind turbine would be a nuisance in fact. Thus, we affirm the order granting a permanent injunction prohibiting its construction.

FACTS AND PROCEDURAL HISTORY

Sowers informed residents of the Forest Hills Subdivision that he planned to construct a wind turbine on his residential property. After this announcement, Sowers' neighbors, the Halls, and the Forest Hills Subdivision 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.² The Halls sought to permanently enjoin construction of the wind turbine and requested preliminary injunctive relief.

At the preliminary injunction hearing, the district court heard testimony that the subdivision was a very quiet area, and that the turbine would obstruct Mr. Hall's view and create noise and shadow flicker.³ Another resident, who was also a licensed realtor, testified 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 then conducted a site visit to the location of a comparable wind turbine. At this site visit, Sowers 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 Sowers' home in Forest Hills, the proposed site for his wind turbine, but noted there was no way for Sowers to test the possible decibel level at that location.

Following the preliminary injunction hearing, the district court granted the permanent injunction.⁴ The district court heavily considered its visit to the site of the comparable

[294 P.3d 431]

turbine and its observation that it “was astonished by the size of the structure and the ‘overwhelming impression of gigantism.’ ” The district court also considered that the Forest Hills Subdivision had panoramic views and was a very quiet neighborhood, and that the proposed wind turbine would likely lower property values in the area. Based on these findings and the site visits, the district court held that the proposed wind turbine constituted a nuisance because the turbine would substantially interfere with the neighboring residents' enjoyment and use of their property. As such, the district court ordered a permanent injunction enjoining construction of the wind turbine. Sowers now appeals.

DISCUSSION

On appeal, Sowers argues that the district court improperly concluded that the proposed wind turbine constituted a nuisance and improperly granted the permanent injunction. We disagree.

A nuisance is “[a]nything 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 or property.” NRS 40.140(1)(a). There are several kinds of nuisances, two of which are pertinent to this discussion. A nuisance at law, also called a nuisance per se, is “a nuisance at all times and under any circumstances, regardless of location or surroundings.” See66 C.J.S. Nuisances § 4 (2013). A nuisance in fact, also called a nuisance per accidens, is “one which becomes a nuisance by reasons of circumstances and surroundings.” Id.

We recognize that the Washoe County Development Code permits the construction of private wind turbines in residential areas if such turbines otherwise comply with the requirements of the Code. See generally Washoe County Code Ch. 326 (2010). We are also cognizant of this state's aggressive policy favoring renewable energy sources, such as wind turbines. SeeNRS 278.02077. We further acknowledge the testimony from the neighbor of the person owning the comparable wind turbine who said that the turbine did not bother him. Based on these considerations, we do not believe that wind turbines are severe interferences in all circumstances, and thus wind turbines are not nuisances at law.

However, even when a structure or act is not a nuisance per se, “[a] nuisance may arise from a lawful activity conducted in an unreasonable and improper manner.” 66 C.J.S. Nuisances § 16 (2012) (footnote omitted). Thus, a wind turbine may “be or become a nuisance by reason of the improper or negligent manner in which it is conducted, or by reason of its locality, as where it is done or conducted in a place where it necessarily tends to the damage of another's property.” Id. Accordingly, “a fair test as to whether a business or a particular use of a property in connection with the operation of the business constitutes a nuisance[ ] is the reasonableness or unreasonableness of the operation or use in relation to the particular locality and under all existing circumstances.” Burch v. Nedpower Mount Storm, LLC, 220 W.Va. 443, 647 S.E.2d 879, 893 (2007) (internal quotations omitted).

“When deciding whether one's use of his or her property is a nuisance to his neighbors, it is necessary to balance the competing interests of the landowners, using a commonsense approach.” 66 C.J.S. Nuisances § 13 (2012). Although we recognize that preserving a residential neighborhood's character is an important and substantial interest for subdivision homeowners, see Zupancic v. Sierra Vista Recreation, 97 Nev. 187, 194, 625 P.2d 1177, 1181 (1981), we have consistently held that a landowner does not have a right to light, air, or view. See Probasco v. City of Reno, 85 Nev. 563, 565, 459 P.2d 772, 774 (1969); Boyd v. McDonald, 81 Nev. 642, 651, 408 P.2d 717, 722 (1965). Thus, in resolving this issue on appeal, we must determine whether the proposed wind turbine is “so unreasonable and substantial as to amount to a nuisance and warrant an injunction” by...