When public utilities interfere with the private use of land, conflict is extremely common. Often, private landowners will be upset by development, construction, and utility work, as these activities can negatively affect the landowners’ comfort, safety, and property values. Members of the public may be able to successfully challenge municipal utility work or other construction projects by claiming the construction constitutes a public or private nuisance. A Rhode Island state court recently denied a group of plaintiffs’ request to temporarily halt the operation of a wind turbine while their nuisance case against the Town of Portsmouth proceeds.
The plaintiffs in the recently decided case are a group of neighbors in Portsmouth who live close to a wind turbine that was constructed on the grounds of a high school in 2016 at the town’s behest. The plaintiffs grouped together and filed suit against the town, seeking to stop the operation of the wind turbine because it was a nuisance. Specifically, the plaintiffs argued that the sound of the turbine was unreasonably loud and that the “shadow flicker” from the blades against the sun was irritating and interfered with their enjoyment of the property. In addition to asking for the turbine to be permanently shuttered, the plaintiffs asked the court to issue a temporary injunction, which would stop the operation of the turbine while the plaintiffs’ claims proceeded toward trial.
The Superior Court in Newport heard the plaintiffs’ request and declined to issue the injunction. In order for a Rhode Island court to issue an injunction in a nuisance case, a plaintiff must show that failure to issue the injunction would cause them immediate and irreparable harm. The court ruled that because the plaintiffs waited five years to file their suit, the argument for immediate harm lacked merit. Additionally, for an injunction to be issued, the plaintiffs must demonstrate that their claim was likely to succeed at trial. Because the plaintiffs had issues with witness credibility, as well as a lack of evidence to prove several required elements of the plaintiffs’ ultimate claim, the court found that there was an insufficient likelihood that the plaintiffs’ claim would succeed at trial. As a result of these findings, the Court denied the plaintiffs’ preliminary injunction request.