Takings Implications of Offshore Wind Energy Development

Takings Implications of Offshore Wind Energy Development

2.4 Nuisance Takings Page 7

"A wind turbine has been ruled a nuisance in at least one case to date. In Falmouth v. Falmouth ZoningBd. Of Appeals, the court held that two town-owned wind turbines were a nuisance and ordered themto halt.47 The nuisance claim was raised by the Funfars, neighbors to the town-owned turbines, whoalleged harms from turbine noise including stress, anxiety, insomnia, and nausea, and deprivation ofthe use and enjoyment of their land as they could not stand to be outside for extended periods.48The court did not find a reduction in property value, but it nonetheless upheld the decision of theZoning Board of Appeals that the “wind turbines and the consequent sound emissions constitute asubstantial and unreasonable interference with the Funfars’ enjoyment of their property andconstitute a nuisance.”49 This case suggests that, at least in cases where turbines are located close toprivate properties, they can meet the legal standard to be considered a private nuisance."

"Circumstances similar to the Falmouth case could potentially satisfy the Richards test for takingsclaims if they were considered “direct and peculiar and substantial.”50 The court in Falmouth acceptedthat the harm was directly caused by the turbine, and it was peculiar to their particular propertyrather than being shared by the public as a whole. On the other hand, it is not clear that the harmwas sufficiently substantial to satisfy a takings analysis, given that the property values wereunaffected by the noise and the threshold for harm in a takings case is likely to be higher than in atort action for nuisance. Thus, while turbine claims could potentially satisfy a takings/nuisanceanalysis in certain cases, those cases are likely to involve substantial fact-finding and requireparticularized showing of individual impacts to the plaintiff’s property."

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This study is a product of the Marine Affairs Institute at Roger Williams University School of Law and the Rhode Island Sea Grant Legal Program. Jourdan Thompson, Rhode Island Sea Grant Law Fellow, conducted research and drafting under the guidance of Read Porter,
Senior Staff Attorney.

All errors and omissions are the responsibility of the Marine Affairs Institute.

This study is provided only for informational and educational purposes and is not legal advice.

https://seagrant.gso.uri.edu/wp-content/uploads/2019/10/Offshore-Wind-Takings-FINAL-1.pdf