Preliminary Injunction Denied to Abutters of Wind Turbine

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Preliminary Injunction Denied to Abutters of Wind Turbine: McKeever v. Board of Health of Town of Scituate, PLCV2012-01424 (Mass. Super. Ct. 2013)

PD&P successfully opposed the efforts of Scituate residents seeking to shut down a private wind turbine built on property leased from the town. On January 15, 2013, Plymouth Superior Court Judge Charles Hely denied a Motion for Preliminary Injunction brought by Scituate residents, Mark and Lauren McKeever. The McKeever home abuts the Scituate wastewater treatment plant where, in 2012, Scituate Wind, LLC, constructed a wind turbine standing 263 feet high, with three blades that measure 132 feet in length. On December 14, 2012, the McKeevers filed suit in Plymouth Superior Court against the Scituate Board of Health, claiming the turbine was causing them and their children a variety of health problems. Among the relief requested, the McKeevers sought to compel the Board of Health to exercise its authority under M.G.L. c. 111, § 123, by determining that the turbine constituted a private nuisance harmful to the public health which, therefore, must be abated. They further demanded that the Board issue an order requiring the turbine operator to cease and desist from all further operations.

In April 2010, the Scituate Planning Board issued a special permit to Scituate Wind authorizing the construction of a wind turbine on town property adjacent to the municipal wastewater treatment plant. Around the time Scituate Wind received its special permit, the McKeevers obtained a settlement payment from Scituate Wind in return for a signed release wherein they agreed not to challenge any permits granted to install the turbine. In exchange for the McKeevers’ silence, Scituate Wind paid them $20,000 and agreed to plant six trees on their property to serve as a sound and sight barrier. Despite the language of the release, the McKeevers nonetheless sued the Board of Health complaining of noise and shadow flicker allegedly created by the turbine. In support of their Motion for Preliminary Injunction, the McKeevers admitted that the Planning Board had signed off on the special permit, but argued that the Board of Health did not, and that such approval (so they alleged) was also required. The McKeevers also submitted a videotape of shadow flicker inside their home and letters from health care providers as evidence that the health of their family was being negatively affected by the turbine’s operations.

Following a hearing, Judge Hely denied the Motion, ruling that the McKeevers failed (on several grounds) to meet the requirements for injunctive relief under Mass. R. Civ. P. 65(c) and Packaging Inds. Group, Inc. v. Cheney, 380 Mass. 609 (1980). First, plaintiffs failed to show a reasonable likelihood of success on the merits in that they did not adequately demonstrate “that the wind turbine is a public health nuisance that must be immediately shut down.” That question, reasoned the Judge, remained an “open issue” still pending before the Board of Health. Second, plaintiffs failed to show a substantial risk of irreparable harm should their request for injunctive relief be denied. Plaintiffs provided the Court with only limited evidence to support their claims regarding the adverse health effects of shadow flicker and noise. In light of such limited showing, Judge Hely was clearly reluctant to interfere with the orderly and lawful proceedings of the Board of Health. Finally, in balancing the plaintiffs’ risk of irreparable harm against the potential harm to the town if such injunctive relief was granted, Judge Hely adopted a cautious and practical approach. “There is a substantial public interest in not interfering with lawful pending proceedings of the local governmental body with primary jurisdiction over the matter.” After the Court denied their Motion for Preliminary Injunction, the McKeevers voluntarily stipulated to a dismissal of their Complaint.

Not mentioned in the Court’s decision, but worth noting, is that, in January 2012, the Massachusetts Department of Environmental Protection and Massachusetts Department of Public Health issued a joint Wind Turbine Health Impact Study concerning the alleged adverse health effects of wind turbines. The Study is the product of a panel of independent experts mandated “to identify any documented or potential health impacts of risks that may be associated with exposure to wind turbines, and, specifically, to facilitate discussion of wind turbines and public health based on scientific findings.” The experts’ opinion, as stated in the Study, is that while “it is possible” that noise from some wind turbines can cause sleep disruption, “[t]here is insufficient evidence that noise from wind turbines is directly (i.e., independent from an effect on annoyance or sleep) causing health problems or disease.”

At present, at least seventeen communities in Eastern Massachusetts have working wind turbines and others have turbines under construction. According to the Massachusetts Clean Energy Center (“MassCEC”), there are currently 24 wind projects throughout the Commonwealth generating over 46 megawatts of clean, efficient energy. Debate about the adverse health effects of wind turbines on those living in close proximity to them will no doubt continue before local boards, at town meetings and in the courts. But Judge Hely, for one, was not prepared to order a wind turbine shut down pending the outcome of that debate.

Published in Developments in Municipal Law Spring 2013 Newsletter.