Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this appeal from a permanent injunction barring the construction of a residential wind turbine, the Court affirmed the district court’s finding that the turbine was a nuisance in fact. The Court clearly rejected the argument that a residential wind turbine could be a nuisance in law, citing public policy and county codes permitting their construction. The Court recognized, however, that a residential wind turbine could be a nuisance in fact if the harm of the proposed construction outweighed its societal value. The factors that the Court considered in evaluating the adverse impact included the noise generated by the turbine and harm to neighborhood property values. The Court held that the aesthetics of a wind turbine alone cannot be the harm evaluated in a nuisance analysis, but courts can consider aesthetics if factors in addition to unsightliness or obstruction of view are alleged. In this case, the negative aesthetics of shadow flicker and the size of the wind turbine, in combination with the noise and diminution in neighborhood property values, constituted an adverse impact that far outweighed the potential utility of the turbine. The Court emphasized that the utility of the wind turbine was limited because only the one homeowner would benefit from its construction. Concluding that substantial evidence existed in the record to support the district court’s findings on all of those points, the Court affirmed the permanent injunction. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
