Kobetz v Spencer - Small Wind Conference

A Landmark Lawsuit Against
a Small Wind Turbine Owner
Centerville Township Michigan
November, 2011
Tom Gallery
North Wind Measurement
 It addressed all the common
complaints against small wind
turbines.
 It was the first time these issues
were fully addressed in a court of
law.
 The usual anti-wind “experts”
testified for the plaintiffs.
 All issues were decided in favor of the
defendants.
 The case was not appealed.
 It was very costly:
 Over $100,000 for the plaintiffs
 Over $50,000 for the defendants.
 Shandy and Penny Spencer installed an
XZeres 442 on their farm.
The windmill had been installed legally. All
permits were secured and all zoning
ordinances were followed.
 Neighbors Dick and Kay Kobetz sued.
Claimed it was a nuisance, that the
windmill be removed, and Spencers pay
them $25,000 for their suffering.
 Shadow flicker
 Noise
 Flash and glint
 Loss of property
value
 Improper siting
 Reflections inside the home
 “Wind Turbine Syndrome”
 “Space and Motion
Discomfort” (SMD)
 Physical and psychological
illnesses
Xzeres 442
100 ft Tower
800 ft from
Kobetz home
Shandy and Penny Spencer – Defendants



Own a 13 acre lavender farm
Shandy works outside for Sequint Energy.
Three young children.
Dick and Kay Kobetz – Plaintiffs
•
Own a 30 acre “Estate” in the middle of an active
agricultural area.
•
Paid $1.3M in 2006 for the 4000 sf home and land.
For the Plaintiffs
Aaron Phelps
 Varnum Law is one of the largest law firms in Michigan.
For the Defendants
Karen Ferguson and Kristyn Houle
 Local attorneys
 Liked to remind us that the Varnum paralegals were
making more money than they were as defense
attorneys.
Plaintiffs
 Rick James (Engineer, Michigan) – acoustics
 Mike McCann (Chicago) – property values
 Marc Green PhD (Toronto) – optics and motion disorders
Defendants
 James Forbes (Engineer, Detroit) – optics
 Melinda Miller (Engineer, Grand Rapids) – acoustics
 Mike Tarnow (Traverse City, MI) – property values
 Tom Gallery (Engineer, Northport, MI) – acoustics, turbine
siting, wind resource assessment, wind analysis, turbine
performance/operation, shadow flicker
Hon. Thomas Power
Chief Judge of Michigan 13th Circuit Court
 Small plane pilot
 Technically very competent
 Very familiar with noise and wind
 Bench trial
 Kept the trial very entertaining!
 The turbine is 800 ft from the Kobetz
residence.
 Both the defendant’s and plaintiff’s
experts concluded that shadows could
not be cast on the Kobetz residence.
March 14
7:35 PM
262 deg sun
azimuth
 Plaintiff’s expert Mike McCann
testified that the Kobetzes lost
25% of their property value due
to the wind turbine.
 Based this on a study of home
values near a wind farm in
Illinois.
 Scaled the turbine sizes
 Defense expert Mike Tarnow simply called the
author of the study and asked about McCann’s
process.
 The author stated that McCann’s process was
flawed and an inappropriate use of his data and
study.
 Tarnow also testified that the appraised value
of Kobetz’s property had dropped from $1.3M in
2006 to $480K in 2010 before the turbine was
installed.
 Marc
Green, PhD, of Toronto testified
that the motion, glint and glare from
the turbine created “Space and
Motion Discomfort” (SMD).
 When the Kobetzes look out their
window, their attention is drawn to
the turbine off to the left.
 After 30-60 seconds, nausea ensues.
Plaintiff’s closing arguments:
Judge: “Are you going to tell me about Dr. Marc
Green’s testimony?”
Phelps: “Yes”
Judge: “In all my years on the bench, I’ve never
heard a less convincing expert. You paid him
$5100? That guy was one big zero. If you want to
talk about him, go ahead, but I’m not listening!”
Plaintiff’s expert Rick James made many claims of excessive
noise from the 442:
 “Sounds like a kamikaze plane attacking your home”
 Sound exceeds 43 dBA “most of the time” (2-3%)
 Sound level always exceeds the Centerville township
commercial wind ordinance limit of 35 dBA.
 NREL sound test of 442 was flawed because “NREL has
been charged by DOE and the President to hide any
negative data in wind testing”.
 You should use “C” weighting when measuring turbine
sound, not “A” weighting.
 The building offers no attenuation of sound from outside.
 The
plaintiffs played a sound
recording of the turbine in court
and set it to 43 dBA.
 Rick James declared that this is
what the Kobetzes hear most of the
time.
 The judge asked Rick James the maximum
sound level allowed by the Centerville Township
Commercial Wind ordinance.
“35 dBA”
 The judge asked for the sound level meter and
told everyone in the courtroom to be quiet.
 A minute later the judge says:
“OK everyone, you’re all in violation of the
Centerville Township ordinance. The sound level
in this room is 38 dBA!”
 The ordinance contains the Rick James
background sound theory and a 35 dBA limit.
 The judge’s final ruling:
“It’s clear to me that the only purpose of the
Centerville Township Commercial Wind Turbine
Ordinance is to insure that a commercial wind
turbine is never built in Centerville Township.”
 The most problematic of Rick James’
testimony was his contention that turbine
sound should be evaluated without
considering wind-generated ambient sound
or any other environmental sound.
 He contended that you should measure the
background (L90) sound level with no wind,
no birds, no nocturnal insects, etc. and then
compare that to the sound of an operating
turbine.
The judge didn’t buy any of it.
 The 442 on Nello and Valmont 100 ft lattice
towers resonate in windspeeds of 8-11 mph –
right around cut-in speed.
 This showed up in the NREL test, Rick James
testing, and in my tests.
 I contacted Xzeres about it and suggested a
change in setpoints to mitigate the forcing
function.
 Tested four sets of strategies and found one
that reduced the sound levels by about 6 dBA
from the production settings.
Blades

The generator was replaced just
before the trial began.

We removed the blades and painted
them with a gray primer to reduce
reflections.
 The entire trial hinged on the judge’s
site visit on the last day of trial.
 The weather conditions were the worst
possible for turbine sound
 The wind was 8-12 mph blowing directly
toward the Kobetz residence. It was cold
with 90-100% humidity.
 The judge discovered that he could indeed
hear the turbine when the wind was directly
toward him (patio)
 He could not hear it when the wind was 2030 deg off line
 Could not hear it when he was inside the
house
 Could not hear it at the closest property line
(280 ft, wind 90 deg off line).
Frivolous Lawsuit?
 The judge ruled that the lawsuit was not
frivolous based on the fact that the
defendants made modifications to the system
to mitigate sound and reflections.
 Therefore the defendants could not collect
costs or damages from the plaintiffs.
Do your research
 Understand shadow flicker
 Do a sound propagation study
 Understand local zoning
Challenge
 Prohibitive zoning ordinances
 Anti-wind “experts
Install certified turbines (NREL, IEC 61400,
SWCC)
Shandy Spencer – He spent over $50,000 of his
own money to defend this suit. He saved the
wind industry in Michigan.
A loss would have set a precedent that would
allow anyone who could hear or see a windmill,
to have it declared a nuisance and have it
removed.
It was very close. No one knew until the judge’s
ruling how it would go. Even as he read the
ruling, you couldn’t tell which way it was going.
 There was surprisingly little support from
anyone in the small wind community.
 Installers and manufacturers would say things
like: “You just tell the judge this is wrong and
he’ll understand”.
 Or, “Don’t worry, it’ll never go to trial.”
 Manufacturer was very slow to respond
A Landmark Lawsuit Against
a Small Wind Turbine Owner
Centerville Township Michigan
November, 2011
Tom Gallery
North Wind Measurement