Which Way the Wind Blows

Which way the WIND BLOWS

The windmill in the distance belongs to the Spencer family, who run a lavender farm in Leelanau County’s Centerville Township. (photos by Patrick Sullivan)

Adecision expected this week could end a nearly year-long lawsuit over a wind turbine erected at a Leelanau County farm.

Penny and Shandy Spencer spent around $74,000 to construct a 112-foot windmill that rises above their lavender farm north of Cedar. They got the windmill last November in response to federal incentives and because they wanted to generate sustainable, green energy, even if it cost more than electricity from fossil fuels.

Leelanau County Turbine Pits Neighbor Against Neighbor

A couple who lives nearby, Kay and Richard Kobetz, objected and sued. The couple, whose sprawling Lake Michigan-view home is about 750 feet from the windmill, demanded damages and the removal of the turbine.

Now after a three-day trial and what must be tens of thousand of dollars spent by the Kobetzes for lawyers and experts on wind turbines, 13th Circuit Court Judge Thomas Power is scheduled to announce a decision Tuesday about whether the Spencers can keep their windmill.

The case has drawn the attention of neighbors around a northern section of County Road 651 overlooking Good Harbor Bay and Lake Michigan, many of whom attended the trial and support the Spencers. Supporters say they have no problem with the erection of a windmill in an agricultural district.

THE WAY THE WIND BLOWS

One of those in the gallery for most of the trial was Bob Marshall, a secretary emeritus for the Northern Michigan Environmental Action Council.

He believes the case may wind up saying a lot about which way the wind is blowing for private wind developments in Northern Michigan.

“We’re kind of concerned that if this were to be turned down, then it could set a precedent that alternative energy has got a lot of problems,” Marshall said.

Marshall said he finds it significant that in an area of numerous neighbors, the Kobetzes are apparently alone in opposing the windmill.

“Many of them who are fairly close don’t seem to be disturbed by it at all,” Marshall said.

What the case comes down to, Marshall said, is if someone carefully selects a spot for a wind turbine and then gets all of the proper permits and approvals from the township, they shouldn’t need to worry about someone with big pockets coming along and suing just because they don’t like it.

“Our concern was that we don’t want to see an obstacle put in the path of getting alternative energy introduced anywhere,” Marshall said.

The Kobetzes could not be reached for comment and their attorney, Aaron Phelps, did not return a message from the Express seeking comment.

The Spencers said they didn’t want to comment until they learn Power’s decision.

KITCHEN SINK STRATEGY

The Kobetzes originally argued that it wasn’t just noise from the windmill that bothered them, but also shadow flicker from the motion of the blades and vibration from its operation, said Karen Ferguson, an attorney who is representing the Spencers with attorney Kristyn Houle.

Ferguson said those are boilerplate arguments made across the nation whenever residents want to oppose a large-scale wind farm.

“They kept changing what it is they were really concerned about,” Ferguson said of the evolution of the Kobetzes’ case. “What it really came down to was, they didn’t want to see it. They were looking for other things to complain about.”

Just not liking the looks of something in a neighbor’s yard doesn’t constitute a legal reason to have it removed, Ferguson said.

Ferguson originally tried to argue the case based on the Right to Farm Act, saying the wind turbine was equipment that was part of a sustainable farming operation. Ferguson said Power apparently was reluctant to settle that question with this lawsuit because there is no case law in Michigan regarding how wind turbines fall under Right to Farm.

The case wound up centering on whether the windmill could be considered a nuisance.

Nonetheless, Ferguson said she feels good about the Spencers’ case.

“I think we felt very good after the site visit, and so we’re optimistic,” she said.

The case may have been at its heart an argument between neighbors, but the litigation grew to three thick files stored at the Leelanau courthouse as if it was a much bigger suit.

The number and quality of experts the Kobetzes paid to bring to Leelanau County was extraordinary, Ferguson said.

“The Kobetzes tried to make this small, private wind turbine the case of the century, and it’s just not a big huge industrial wind farm,” she said. “It’s not comparable at all.”

“IT’S ANNOYING, IT’S DISRUPTIVE”

In his closing arguments, Phelps argued the Kobetzes brought the case to court because they find the wind turbine they can see outside of the home so irritating.

“It’s annoying, it’s distruptive, it’s not a pleasant sound. That is what the Kobetz’s are dealing with,” Phelps said.

Power, though, frequently interrupted Phelps during his closing.

He was concerned that during a site visit to the Kobetzes’ home earlier that day, he had listened to the windmill outside and then inside their house and he didn’t hear any noise inside.

“I have to tell you, I didn’t hear it inside the house,” Power told Phelps.

Phelps said that was because there was only a light wind that afternoon and that during the day there is less ambient background noise than there is at night.

But if it was a windier day, wouldn’t the sound of the wind mask the sound of the turbine as each got louder? Power wondered.

Phelps pointed to an expert for the plaintiffs who testified that the wind sound is at a different frequency than the turbine sound so one does not cancel out the other.

Power wondered aloud if perhaps that flew in the face of common sense.

“It could be that, even if the exact wavelength isn’t cancelled out by the wind, ... that the human perception of it pays attention to the louder noise and doesn’t notice” the other noise, Power said. “Three people testified that on a windy day, they couldn’t hear it.”

Phelps countered that the Kobetzes said they hear it and it disturbs them and it keeps them up at night.

“This is their property,” Phelps said. “This is their retirement home, but it’s also their retirement investment.”

During Phelps’s closing, Power made another observation, however – a sawmill had once been located on the farm where the Spencers now live, so that would presumably be an allowable use.

Power left it to those watching to imagine whether a sawmill or a wind turbine would be a bigger nuisance.

Penny Spencer at her lavender farm in Leelanau County.

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