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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. 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. 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.
Appellant Rick 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. 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. 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. Following the preliminary injunction hearing, the district court granted the permanent injunction. Sowers appealed.
Was the grant of the preliminary injunction proper under the circumstances?
The district court properly concluded that a proposed wind turbine constituted a nuisance under Nev. Rev. Stat. § 40.140(1)(a) and granted a permanent injunction, because it 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. A renewable energy expert testified that the noise created by the turbine would be similar to that of the hum on a highway. Therefore, substantial evidence supported the district court's finding that the wind turbine would be a nuisance in fact. Its utility was far outweighed by its potential harm to the residents.