Legal squall hits Lake Winds Energy Park
Disgruntled homeowners near the new Mason County wind farm are going to get their day in court — if they don’t settle out of court first. But prior cases in Michigan hint at a tough battle in the courtroom.
Owners of 10 homes adjacent to Consumers Energy’s Lake Winds Energy Park southeast of Ludington joined together to file suit in April in Mason County Circuit Court, alleging “significant and material intrusions upon their properties and inside their homes” due to the operation of the wind turbines. Each of the dwellings is less than one-half mile from the nearest turbine, all 56 of which have three 160-foot blades spinning on a hub 312 feet above the ground.
The 100.8 megawatt wind farm began full operation last fall.
The homeowners say the turbines make “frequent and highly disturbing noise,” “vibrations and/or a pulse sensation,” and “flicker/strobe light effect” that intrudes into their homes. The complaint also states there is “a highly visible glare which emanates from the turbines … when sunlight shines” on them, and there are “numerous flashing red lights which reflect off the rotating blades,” which “overwhelm the night sky and are readily apparent from inside Plaintiffs’ homes.”
The result is loss of sleep, headaches “and pressure,” ringing and aching in the ears, dizziness, stress and tension, extreme fatigue, diminished ability to concentrate, nausea and “other physiological and cognitive effects.”
Consumers Energy issued a statement shortly after the suit was filed April 1 saying it was meeting permit requirements but intended to reprogram some turbines by April 15 to reduce the length of shadow flicker.
The suit was filed by Craig W. Horn and David L. Puskar of Braun Kendrick Finkbeiner in Saginaw and asks for damages in excess of $25,000.
Horn, who declined to comment for this report, represented 20 Huron County residents who sued owners of the Michigan Wind I wind farm near Ubly in May 2010. Like the Lake Winds suit, it alleged the spinning wind turbines caused the plaintiffs to suffer adverse health effects, emotional distress and decline of their property values. That suit was settled out of court in February 2012 with no details revealed, just a week before the jury trial was scheduled to start.
Aaron Phelps, a partner at Varnum Law in Grand Rapids, represented a property owner in Leelanau County who sued a neighbor about two years ago who had erected a residential wind turbine, which the plaintiff said was a noise nuisance. While noting the residential turbine was far smaller than the commercial grade turbines, it was still about 100 feet tall with blades of about 28 feet, and was “very obvious.”
That case went to trial, but Phelps said the judge ruled in favor of the turbine owner, concluding that “while there was noise that was emanating from the turbine, it was not substantial enough to constitute a nuisance.”
In nuisance complaints like that, said Phelps, there is “very subjective inquiry” in court because “what’s offensive to one person might not be offensive to the next person.”
The strength of the case, he said, definitely depends on proximity to the wind turbine.
The property owner who filed the suit had a view of Lake Michigan, but Phelps said that in Michigan courts, you cannot claim loss of your view as an unreasonable interference with your property. “So the fact that you can see (a wind turbine) or it blocks the view of a lake or scenic beauty isn’t going to give you a claim,” he said.
In fact, Phelps said he thinks some judges are skeptical of nuisance claims about wind turbines, suspecting the alleged noise or other problems are “a back door way of trying to get rid of it because they don’t like the way it looks.”
Phelps said some studies show loss of property value in close proximity to wind turbines, but it is “a very contested issue” wind farm owners would challenge.
In proving the allegations about wind turbine vibration, low-frequency noise and shadow flicker, Phelps said the suits against wind farms are challenging.
An expert witness on wind farm sound is Rick James, who has testified on behalf of opponents to commercial wind farms, including the Michigan Wind I litigation. James and a partner had a business in Lansing for years called James Anderson and Associates, which offered consulting and design services to industrial companies concerned about noise emanating from their factories. In 2006, a medical condition put James into semi-retirement, with his partner taking over the industrial acoustic business and James launching a new business called E-coustic Solutions, which primarily serves communities with noise problems.
James said he began studying wind farm acoustics in 2007. He is aware of three lawsuits filed in Michigan by neighbors of wind farms. In addition to Lake Winds and the Michigan Wind I suit, he said there was a suit at Stoney Corners Wind Farm near McBain in Missaukee County.
However, he said, “the number of court cases that have actually progressed on to being before a jury or judge are very few. They almost always get settled out of court.”
Those filing the suit settle, he said, “primarily because the developer has much deeper pockets than the people filing the lawsuits. By the time you come up to court date and you are faced with having to depose hundreds of experts and file hundreds of motions, it drains everyone’s pocket to the point where they pretty much are forced to settle out of court.”
James said he worked on a study showing there is such a thing as “infrasound,” although the wind industry has denied it exists. He said it is “very, very low frequency. I classify those as inaudible, almost vibration level. Most of the people report they feel it more than hear it.” He said it has caused families living near commercial wind turbines to try sleeping in their basements to escape the sound, or running an air conditioner to mask it.
James said that only one person out of five or 10 is sensitive to infrasound. He said that explains why one resident near a wind turbine may report no problems but the next neighbor might be bothered by it. He said many cases of the so-called “sick building syndrome” were really cases where fans in the ventilation equipment were “pulsing” or causing vibrations that caused the building occupants to feel ill.
He is critical of the wind power industry for allegedly not being concerned about correcting the wind turbine designs that lead to problems caused by infrasound.