Vermont neighbor can bring nuisance claim for wind farm, despite losing fight against permit

Note:  This case is from the Federal District Court for Vermont, but it is interesting and in keeping with our “wind week” theme.   It was originally posted by Patricia Salkin on her blog, The Law of the Land http://lawoftheland.wordpress.com.

Brouha v Vermont Wind, LLC
(Federal District Court for Vermont, September 23, 2014)

Plaintiff alleges that the Sheffield Wind Project that the Defendants owned and operated created an unreasonable noise impact, that the noise prevented the Plaintiff from gardening, eating outside, walking and other activities similar, and the Plaintiff therefore suffered stress, pain and suffering and loss of the use of his property.

The District Court of Vermont found that the Plaintiff submitted sufficient information for a private nuisance claim, due to interference with the use and enjoyment of another’s property that is both unreasonable and understanding. Defendants contended that the Plaintiff’s complaint should be collaterally estopped because the claims litigated were already decided when the Plaintiff unsuccessfully contended and appealed against the granting of the permit, but Plaintiff in return claims that the standard applied for the permit were different from the standard applied for private nuisance.

The court found that the enjoyment of the Plaintiff’s property has never been litigated, and the restrictions imposed by the permit did not cover a private nuisance issue. Collateral estoppel does not apply here as the private nuisance claim was not raised in the first action, and the general nuisance claim that focused on the impact to the community was not identical to the private nuisance issue. Defendants’ motion was to dismiss Plaintiff’s private nuisance claim was therefore denied.

 

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