By Lulu Xu
To: Elizabeth Lopez (elopez@gray&lopez.com)
From: New Associate (nassociate@gray&lopez.com)
Re: EnergyCom – wind turbine complaint
Can EnergyCom successfully dismiss the claim of private nuisance under Illinois law where the EnergyCom’s wind turbine generate loud noise that affect the plaintiffs’ daily lives, made them physical uncomfortable and reduced the enjoyment of their outdoor activities in the gardens or pools; the plaintiffs went to EnergyCom complaint about the noise before they sued; and EnergyCom came after the plaintiffs and it can shorten the wind turbine’s working time?
No. The noise from the EnergyCom’s wind turbine likely constitutes a private nuisance to the plaintiffs. The noise from the wind turbine reduced the plaintiffs’ enjoyment of their own gardens or pools constitutes a substantial invasion; the invasion is intentional because the plaintiffs went to EnergyCom complaint about the noise before they sued; and EnergyCom came after the plaintiffs and the wind turbine’s working time can be reduced, so likely, it is unreasonable. So, EnergyCom will not win the motion to dismiss the claim of private nuisance.
EnergyCom, a big national energy company, came to Marengo, Illinois in 2011. EnergyCom built a wind turbine in the area that had been vacant almost 20 years to provide the powers to the. In August 2011, EnergyCom finished the construction of the wind turbine’s facility and put the turbine into work on September 1, 2011. Some of the neighbors felt the turbine generates loud noise made them very uncomfortable and even reduced the enjoyment of their outdoor activities in their own gardens or pools. They complaint that the noise made them could not sleep will during the night, also made some of them in a state of nervous irritability and anxiety in their daily lives. So they came to EnergyCom to negotiate, wanted the company can turn off the wind turbine or limit its time. But EnergyCom refused to do so, and did nothing about the situation. Therefor, the neighbors went to sue EnergyCom for a private nuisance.
EnergyCom is unlikely to win a motion to dismiss the claim of private nuisance against the plaintiffs. But, for Plaintiff Carol Martinez, EnergyCom is likely to win a motion to dismiss part of her claim if the claim of private nuisance relates to her business. Under Illinois law, “[a] private nuisance is a substantial invasion of another’s interest in the use and enjoyment of his or her land.” In re Chi. Flood Litig., 680 N.E. 2d 265, 279 (Ill. 1997). “The invasion must be substantial, either intentional or negligent, and unreasonable.” Id. at 279. Whether the complained-of activity constitutes a nuisance is generally a question of fact, and the plaintiff bears the burden of proving the complained invasion is substantial, intentional or negligent, and unreasonable. Dobbs v. Wiggins, 929 N.E.2d 30, 40 (Ill. App. 5th Dist. 2010). Here, except Plaintiff Carol Martinez may fail to prove that the noise from the wind turbine is a private nuisance to her recording business, all the plaintiffs allege sufficient facts to prove that the noise from the EnergyCom’s wind turbine constitutes a substantial invasion; EnergyCom already knew the wind turbine made some noise, so the invasion is intentional; and the invasion is unreasonable. Therefore, EnergyCom will be able to dismiss the claim of private nuisance that against Plaintiffs Carol Martinez on the part of her business. However, EnergyCom is not able to dismiss the claim of private nuisance to the personal lives that brought by all the plaintiffs.
1. Substantial Invasion
All the plaintiffs have alleged sufficient facts to prove that the noise from the EnergyCom’s wind turbine constitutes a substantial invasion to their personal lives. But, Plaintiff Edward Brown is kind of special, and Plaintiff Carol Martinez did not allege sufficient facts to prove the invasion is substantial to her recording business in her own house. In Illinois, “an invasion must be severe enough to constitute a material annoyance to the person or property of another to be considered substantial.” Belmar Drive-In Theatre Co. v. Ill. St. Toll Hwy. Commn., 216 N.E.2d 788, 791 (Ill. 1966). In determining whether particular conduct constitutes a nuisance, the standard is the conduct's effect on a reasonable person. In re Chicago Flood Litigation, 680 N.E.2d at 280. The complaining homeowners cannot be found to be unduly sensitive and may in no way be referred to as delicate and fastidious, pursuing a dainty way of life. Belmar Drive-In Theatre Co., 216 N.E.2d at 792.
In Belmar Drive-In Theatre Co., the Supreme Court of Illinois held that the complaint was insufficient to state a cause of action for a private nuisance. 216 N.E.2d at 791. In that case, the appellant ran a drive-in movie theater. Id. The court found that the appellant was exceptionally sensitive to the brilliant artificial lights used by the appellee. Id. at 793. The court reasoned that a person couldn’t increase the liability of his neighbor by applying his own property to special and delicate uses, whether for business or pleasure. Id.
In Dobbs, on the other hand, the court stood for the neighbors because the neighbors presented enough evidences. 929 N.E.2d at 40. First of all, the neighbors proved that the kennel owner's barking dogs could be heard inside the neighbors' houses. Id. The neighbors also provided evidence proving that the dogs barked and yelped at all hours of the day and night, that they had to curtail their outdoor activities because of the noise. It invaded their use and enjoyment of their land. Id. And the court also concluded that “the neighbors were not unduly sensitive and were not delicate, fastidious, or pursuing a dainty way of life.” Id. at 41. Then, with the evidence that the dog baking continued for extended periods of time, occurred at all hours of the day and night, the court finally held that the barking noise from the kennel owner’s property was substantial. Id.
Here, like the movie theater owner’s business in Belmar Drive-In Theatre Co., Plaintiff Carol Martinez operates a recording studio in her basement and claimed that since the turbine began to operate, she has recorded fewer tracks for local artists because it is difficult to impossible to eliminate the background noise from the turbine. Like the theater’s owner in Belmar Drive-In Theatre Co., Plaintiffs Carol Martinez is not a normal plaintiff with ordinary habit or sensitivity in her business; she requires the circumstance of her property special and delicate. So she may not satisfy the standard to determining that the noise is substantial when she claiming the noise from the wind turbine constitutes a private nuisance to her recording business. But, in Plaintiffs Carol Martinez’s daily life, she also surfed the noise.
So, to all the plaintiffs except Plaintiff Edward Brown, the situation of their daily lives is much more similar with Dobbs. They are all normal persons that are neighbors of the defendant with normal ordinary habits or sensitivities. As in Dobbs, Plaintiffs Victoria Brown, Thomas Martinez, Carol Martinez, Helen Jones and Bruce Jones can prove that the turbine operates 24 hours per day, 7 days per week and the noise it generates is constant and extremely annoying. The noise is so loud that it is difficult to hold a conversation outside on any of the Plaintiffs’ properties. And, since the turbine began to operate, the Plaintiffs must keep their windows closed at all times regardless of the weather, seldom have friends over to visit, seldom enjoy outdoor activities in their gardens or pools. Some of them have had extreme difficulty sleeping and usually are awakened multiple times at night by the turbine noise; they are often fatigued due to this lack of sleep. And some of them experienced heightened irritability due to the noise from the turbine. To Plaintiffs Edward Brown, although he is blind and relies on his hearing extensively, he surfed the affect of the wind turbine’s noise just as same as his wife in their daily lives. So, all the plaintiffs are likely to prove that the noise from the EnergyCom’s wind turbine constitutes a substantial invasion to their daily lives.
2. Intentional or Negligent Invasion
The most probable situation is that the noise from the EnergyCom’s wind turbine is an intentional invasion. In order to be an intentional invasion, the offending landowner must foresee the consequences of invasion. Toftoy v. Rosenwinkel, _N.E.2d_, 2011 WL 3833875, at *9 (Ill. App. 2d Dist. Nov. 17, 2011). It was enough to conclude the invasion is intentional if the offending landowner has the knowledge that the invasion of another's interest in use and enjoyment of land is resulting or is substantially certain to result. In re Bloomingdale Partners, 160 B. R. 101, 110 (Bankr. N.D.Ill. 1993).
The court of In re Bloomingdale Partners found that the potential plaintiff had filed a “formal noise complaint” with the Illinois Pollution Control Board before the action. 160 B. R. at 103. The Board found that the potential defendant violated certain Illinois noise pollution statutes and regulations and then ordered them to submit “a report on the methods of reducing or eliminating the noise pollution at One Bloomingdale Place” Id. at 104. The potential plaintiff also had approached the potential defendant many times about the noise before the action. Id. So the court concluded that the potential defendant’s invasion was intentional, because it already knew the noise from its building was substantially interfering with the potential plaintiffs' use and enjoyment of their townhome. Id. at 109.
In Dobbs, the court got the same conclusion, and in concluding that the invasion was intentional, the Dobbs court found it significant that the neighbors had talked with the kennel owner several times before they went to sue the kennel’s owner. 929 N.E.2d at 37. And when the
owner kenneled nearly 100 dogs on his property at times, he knew that he had a few problem dogs that barked frequently, and he also knew that a few dogs barking often caused a chain reaction, resulting in many of the nearly 100 dogs barking simultaneously. Id. at 40. He knew his neighbors were located approximately 250 yards away, across an open field. Id. Under these facts, the court concluded that the kennel owner knew that the constant barking noise was substantially certain to be invasive to his neighbors. Id.
Compared with these two cases, the EnergyCom’s situation is similar. Here, the noise from the EnergyCom’s wind turbine has been measured at 60 decibels. The plaintiffs claimed that it is difficult to hold a conversation outside on any of the plaintiffs’ properties. The plaintiffs alleged that they previously contacted individuals at EnergyCom some times before they sue; they wanted to discuss the problems created by the wind turbine. But, EnergyCom was dismissive of the Plaintiffs’ concerns and repeatedly refused to turn off the wind turbine or limit its hours. And, even EnergyCom’s CEO admits that the wind turbine makes some noise. So it is likely that the court will hold that the invasion of the noise from the EnergyCom’s wind turbine is an intentional invasion.
3. Unreasonable Invasion
The noise from the wind turbine is unreasonable. In assessing whether an invasion is unreasonable, a court must weigh the gravity of the harm done to the plaintiffs against the utility of defendant’s business and the suitability of the location of the business. Dobbs, 929 N.E.2d at 41. An invasion is unreasonable if the gravity of the harm done to the plaintiffs outweighs the utility of defendant’s business and the suitability of the location of the business. In re Bloomingdale Partners, 160 B. R. at 109.
In balancing the interests, the court needs to answer the following questions:
(1) is the commerce that the defendant engaged in useful and in a suitable area?
When determining whether the defendant engaged a useful business, and whether the area for the business is suitable, the court usually considers the utility of the business. In Arbor Theatre Corp. v. Campbell Soup Co., the court held that the owner of the mushroom farm’s composting operation was suitable to the rural locality and was reasonable under the circumstances, then dismissed the complaint. 296 N.E.2d 11, 14 (Ill. App. 2d Dist. 1973). In that case, the court reasoned that the business is useful and in a suitable area because the mushroom farm owner’s production of compost is an incidental use required for growing mushrooms barns. Arbor Theatre Corp, 296 N.E.2d at 13. The area was primarily a rurual area all the time since the mushroom farm owner bought it, and when the mushroom farm owner got the land, it was zoned “F-Farming District” which permitted mushrooms barns and incidental uses. Id.
In Toftoy, the court also held that the cattle operation owner engaged in a useful enterprise and the area is well suited for the commerce. 2011 WL 5833875 at *10. In that case, the cattle operation owner changed the condition of agricultural land to the cattle operation. Id. at * 8. The small business built on a parcel, and it made money for the cattle operation owner.
In EnergyCom’s situation, the company is meeting an important national energy need, and it runs the wind turbine on the land that was vacant for almost 20 years. The wind turbine provides energy to power the sales center and warehouse. So the court is likely to hold that EnergyCom engage a useful business and in a suitable area.
(2) whether the defendant's operation come before or after plaintiff?
In determine who came first, the defendant or the plaintiff, the court consider both the actual time that each of them came and their relation to the properties.
In Arbor, the court held that the mushroom farm owner began his business long before the plaintiff moved there doing the business. 296 N.E.2d at 13. In that case, the mushroom farm owner purchased the farm in November 1945 and its mushroom growing operation began in 1947. Id. After more than 13 years, the neighbors contracted to buy the land to the northeast of defendant's mushroom farm in December 1960. Id. The neighbor’s theatre opened for business in August 1961. Id. The court found that the neighbor had visited the mushroom farm owner's farm some time prior to the purchase, knew the nature of the operation and odors. Id. And the neighbor was advised that the odors were worse at times than at the time of the visit. Id. The neighbor even had discussed ‘the odor situation’ prior to the purchase, but the neighbor nevertheless built its drive-in theatre at that location. Id.
In the contrary, the court in Toftoy held that the neighbors came first, before the cattle operation owner started his business. 2011 WL 5833875 at *10. In that case, the court reasoned that although the cattle operation owner started the cattle operation in 1992 and the neighbors got the land in 1998 then moved into their residence in 2004, the neighbors’ family bought the original property in 1967, and hand been farming since that time. Id. The neighbors had boarded horses at the land since 1989, concerning the neighbors’ family’s connection to the land, the property was part of a family operation, then the court held that the neighbors came earlier than the cattle operation owner.
Compared with these two cases, the EnergyCom’s situation is more similar with the Arbor. All the plaintiffs bought their houses before EnergyCom went to construct the wind turbine. Except Plaintiffs Helen Jones and Bruce Jones, all the other plaintiffs also moved in before EnergyCom came. EnergyCom finished construction of the wind turbine’s facility in August 2011 and used it since September 1, 2011. It is a very short time. The court is very likely to hold that EnergyCom come after all the plaintiffs.
(3) can the defendant reduce the invasion? and is modification of defendant's operation practical?
In Arbor, the court found that since the neighbor's outdoor theatre running the business, the mushroom farm owner modified its operation and has tried various experiments in order to control, reduce and eliminate the odors. 296 N.E.2d at 14. The court held that the occasional odors are caused from the mushroom farm owner’s pursuit of a useful occupation. Id.
The court in Toftoy found that the odor and flies from the cattle operation owner’s cattle operation can be reduced because one of the employees testified that he could have controlled the flies if the flies been a bother to him. 2011 WL 5833875 at *10. But the cattle operation owner did not make any effort to reduce the invasion. So the court answered the question in the neighbors’ favor.
In EnergyCom’s situation, the facts are similar with Toftoy. Here, EnergyCom can reduce the hours the wind turbine ran, but EnergyCom refused to turn off the wind turbine or limit its hours. So the court is likely to hold the conclusion on this question in the favor of the plaintiffs.
All in all, the court of Arbor held that the invasion of the owner’s mushroom farm was reasonable. 296 N.E.2d at 12. But the court of Toftoy concluded that the invasion of the odor and flies from the owner’s cattle operation was unreasonable. Consider all the factors mentioned above, the noise from EnergyCom’s wind turbine is likely to be concluded as an unreasonable invasion.
EnergyCom is likely to win on the motion to dismiss that against Plaintiffs Carol Martinez if she claims that the noise is a private nuisance to her recording business. Because her business is more sensitive with the circumstance, it dose not satisfy the normal standard to determining the invasion is substantial. It is excluded by the rules of claiming a private nuisance. However, for all the plaintiffs, EnergyCom may fail to establish the defense to dismiss their claim of private nuisance. Because the noise from EnergyCom’s wind turbine constitutes a substantial invasion to the plaintiffs’ daily lives. Though EnergyCom knew the noise affect the plaintiffs daily lives so much, it refuse to shorten the turbine’s working time. All the facts made the invasion intentional and unreasonable, so the noise from the wind turbine constitutes a private nuisance to the plaintiffs.