HOWLING WINDS

Feb. 20, 2011

Howling Winds: Neighbors in a spin over turbine in Leelanau
By Anne Stanton

In one of Leelanau County’s most beautiful and peaceful corners, things aren’t quite so harmonious among the neighbors.
Richard and Kay Kobetz contend that their neighbor’s 115-foot wind turbine is causing them problems, including lack of sleep, nausea, headaches and fatigue.
But neighbors say that the Kobetz’s own construction efforts over the last few years have harmed the lives of those around them.
In 2006, the Kobetz’s built a luxury, multi-story home on a high ridge, made even higher after building up the lot with tons of additional fill dirt, scooped from their meadow below. Their home on County Road 651 oversees a majestic view of Good Harbor Bay.
The Spencer family lives southwest of the Kobetz’s in a cozy farmhouse on East Kilwy Road, where they erected a wind turbine in November. The wind turbine is not in the Kobetz’s view shed of Lake Michigan, but is, ironically, on the same visual plane of the Kobetz’s house thanks to the home’s raised foundation.
The Kobetz’s filed a lawsuit on January 10 against Shandy and Penny Spencer. The lawsuit contends that light from the spinning wind turbine blades reflects into their home and office area. The resulting glare, flash and flicker are “disorienting and distracting” and cause the couple to suffer nausea, headaches and fatigue, according to the lawsuit. They charge that the wind tower creates a range of noises inside and outside their home. The lawsuit claims the couple has suffered from sleep loss and has difficulty carrying on normal recreational activities. The lawsuit asks the Spencers to remove and/or relocate the wind turbine and pay them $25,000.

DIFFERING OPINIONS
The Kobetz’s filed a complaint about the wind turbine soon after it went up in November of 2010, but Centerville Zoning Administrator Tim Cypher said the turbine was in compliance.
He wrote in a December 23, 2010, response to the complaint that that there were reflections of the wind tower on “glossy surfaces and glass windows, however, nothing to the extent more than any other reflection of trees or any other structures. I did not observe motion, glare, flash, and flicker that I would describe as disorienting, distracting, or nauseating, as stated in your complaint.”
He also did not notice any vibration greater than what’s normal when the wind is blowing. Shandy said he is ready to counter the claims about flicker with scientific calculations prepared by an engineer.
The Kobetz’s attorney, Aaron Phelps of Grand Rapids, refused to comment further on the lawsuit, and Richard and Kay Kobetz did not return phone calls to the Express.
Shandy and Penny Spencer said they located the turbine for good reason: four different consultants recommended the site based on the wind strength and its close proximity to their home — the turbine is 250 feet from the Spencers’ back door. The closer to the house the better, because it means less electricity is lost, Shandy said.
A court hearing hasn’t been scheduled yet.

SIMMERING TENSIONS
This lawsuit is the latest controversy along a ridge of homes where everyone once got along and walked freely on neighboring properties.
That changed when the Kobetz’s bought a 21.9 acre parcel about nine years ago. The couple’s attorney contacted five property owners in writing to let them know they were going to build “Kilway Ridge,” large luxury homes and that their view rights were not guaranteed.
The couple never did build the homes, but tensions remained after someone — no one knows who — pulled stakes for the planned development. In Thanksgiving of 2006, bulldozers showed up along the Kobetz’s property line and directly in front of the home of Bill and Susan Wheadon. The bulldozers constructed a l0-foot high berm, spanning the boundary line. Wheadon alleged that the bulldozer destroyed his fence and an apricot tree.
Then eight months later, the Kobetz’s planted 30-foot mature pine trees atop the 10-foot high berm. The tall trees have nearly blocked the Wheadons’ view of Good Harbor Bay. Last May, more trees were planted to fill in the few remaining gaps. The couple concedes that no law protects scenic views, but they feel that the Kobetz’s could have achieved a visual barrier without destroying their view.
“If they consider the windmill a ‘nuisance’ in legal terms and are concerned about their property values, then — in the same vein — I consider the earth berm a nuisance that’s affected our property values,” said Susan Wheadon.
Susan Wheadon, who was home alone when the bulldozers arrived, said she still gets upset at the sound of heavy machinery. Although they lost the view, the incident brought them closer to their neighbors, she added.

‘NO VIEW RIGHTS’
Mary Bemowski, another neighbor, owns property along the same ridge as the Wheadons. She intended to sell 3 1/2 acres of land several years ago and listed it for sale with a realtor. Soon afterward, the Kobetz’s posted large signs on the adjoining property line and distributed a packet of information that depicted a large barn they intended to build, which would block Lake Michigan views from her property. The pamphlet warned prospective purchasers that the neighboring property did not have view rights.
“My property is on a ridge and they also tied bright contracting ribbon on trees to draw attention to the fencing and their signs; the ribbon was pretty high up and I expect they had to use ladders to get that high. It was clear to me that the Kobetz’s purposefully placed visual obstructions on the property line with the intent to thwart the sale of our land.” she said.
Bemowski also suspected that the Kobetz’s were also meeting with prospective purchasers and telling them about their plans to develop their property in a way that would block any view of Lake Michigan from her property.
Bemowski and her husband confirmed their beliefs in 2008, when they visited their 3 1/2-acre parcel. Believing that the Bemowskis were prospective buyers, the Kobetz’s showed them drawings that detailed the supposed development of their property. “They met us on our property and were very aggressive. They brought plans to show what their proposals were for a barn, right in front, and blocking the view.”
Bemowski said the Kobetz’s became angry and upset when they realized that Bemowski and her husband were not prospective buyers, but the actual property owners.

PRAYER FLAGS
The Bemowskis considered a lawsuit to force the Kobetzes to remove the signs and pamphlets.
“I decided not to start a lawsuit,” Mary Bemowski said. “However, I might reconsider, particularly if the small windmill the Kobetzes complain about is deemed a nuisance. That windmill appears to me to have less of an impact on the Kobetz property than the Kobtze’s actions have had on ours.”
Instead of a lawsuit, the Bemowskis decided to change the energy of the property by hanging Tibetan prayer flags on their land.
“The flags represent compassion for all living beings and loving-kindness among other things. I wanted to do something to change the energy that’s been seeping into property — it was a very special place and I have very happy memories. It is a beautiful piece of the property. It has been a source of positive feelings for me, and I hope the positive energy of the flags not only seeps into my property, but also have a positive effect on the Kobetz’s.”

NO TALKING
The Spencers said that they had discussed the idea of putting up a wind turbine previously with Dick Kobetz, but decided not to share their final plans after hearing about the past controversies.
The couple, who have two daughters and a toddler son, said their decision to erect the $74,000 wind turbine ($52,000 after a tax credit) wasn’t necessarily an economic decision, but a philosophical one. The wind turbine, so far, has been supplying 100% of their energy needs for the home. Ideally, they will save about $2,800 a year (or more if electric rates go up). Penny Spencer said she finds it offensive that the couple is suing over a form of alternative energy that the federal government is actively supporting with a 30% construction subsidy.
Shandy Spencer spends his professional life buying and selling natural gas, and anticipates the day when fossil fuel supplies become scarce and alternative energy is a necessity, not a choice.
“If I can’t put up a wind turbine on my 13 1/2 acres in Leelanau County, how are we going to get green by 2020 like the state talks about?” he asked.

PROPERTY RIGHTS
“The story on this lawsuit has to get out there, or everyone will be afraid to build these things,” Shandy said. “There is no panacea when it comes to different energy sources. All of them have perceived issues. People in the Gulf of Mexico would argue that oil is not clean. People in the Yucca Mountains don’t like nuclear. Unless we are willing to live in caves, we have to be willing to find solutions.”
Shandy said that he doesn’t feel compelled to ask a neighbor’s permission to put up a wind turbine.
“To me, where are the private property rights? Why do we own our property and pay taxes if we can get sued for doing something that’s within the law?”
Bob Eitzen, who owns property adjacent to the Kobetz’s said he doesn’t see anything wrong with the wind turbine.
“I’m fourth generation here. I remember when there used to be a windmill right where the Spencers are. There have been windmills for generations. That’s how they got their water. I read where the Kobetz’s were complaining how nobody asked their permission before they put the windmill on the property, but they never asked first before building the berm. I don’t see how they could do that,” Eitzen said.

Will lawsuit blow down region’s wind power movement?

By Anne Stanton

Will the lawsuit in Leelanau County put a damper on other folks putting up wind turbines? (See related article.)
“It might,” said Brian Beauchamp, energy policy specialist for the Michigan Land Use Institute, “but the important thing to remember is everything is site specific. The reality for folks in Leelanau County will be different than what happens in Benzie County. You have to look at folks on the ground. I’d encourage people not to base their judgment on this one case and look at the whole picture.”
The issue of civil lawsuits may or may not play into a proposal by Duke Energy Corporation to build 112 commercial wind turbines in four townships located in the southern part of Benzie County and the northern part of Manistee County.
“I think neighborly communication is a good thing, but I think the requirements for residential and commercial wind turbines should be in the master plan and zoning ordinance,” Beauchamp said. “Do I think it’s a friendly thing to ask your neighbor about putting up a wind turbine? Yes. But should you have to ask your neighbor for their permission? No, not necessarily.”
Duke’s proposed project represents a $360 million investment and would create an estimated 150 temporary and 25 permanent jobs. Yet township officials and landowners alike are wringing their hands over the potential impact of the industrial wind turbines that would reach 500 feet into the air.

MORATORIUM
Because of serious concerns, Pleasanton Township in December approved a one-year moratorium on construction and land-use permits relating to wind energy systems.
And last week, a new process was unveiled by the Manistee County Alliance for Economic Success that will gather questions about wind energy from residents and seek to provide answers. It will also assist six townships in evaluating their current ordinances and providing a model energy ordinance. Although only four townships are in the Duke Energy project footprint, two others have signed on, Beauchamp said.
“Bear Lake and Onekama townships wanted to get ahead of the curve since they are in a high potential wind area in a map that was put together by the Land Policy Institute at MSU,” he said.
Joyfield Township in Benzie County currently has no zoning ordinance. Theoretically, anyone could build a wind turbine wherever they want. “It’s like the Wild West out there,” Beauchamp said.
The process, which is expected to take two months, is titled “Understanding Wind Initiative: Education and Technical Assistance about Wind Energy for Residents, Communities, Businesses, and Others in Benzie and Manistee Counties.”
The aim of a model ordinance would be to resolve an array of concerns, including “flicker” from the turbine blades, changes to the view shed, the turbines’ impact on birds and bats, and the regulation of heavy construction equipment, according to a press release.
Duke Energy won’t go ahead with the project unless it can find a buyer for the wind energy. The Michigan Land Use Institute has had limited conversations with Traverse City Light and Power, a publicly owned utility, about buying the wind power, in part, because TCL&P has repeatedly said it wants to buy energy from a local or regional source.
“They have clearly stated that they are not interested in this at the moment. I think there’s no reason they couldn’t at least talk to Duke to find out what the rates would be and when it will come on line, and to learn more about it. From the last meeting it seemed they weren’t even going to talk to them,” Beauchamp said.