129 Nev., Advance Opinion 9 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

RICK SOWERS, AN INDIVIDUAL, 

Appellant, 

vs. 

FOREST HILLS SUBDIVISION; ANN 

HALL AND KARL HALL, 

INDIVIDUALLY, 

Respondents. 

No. 58609 

FILE 

FFR 147(113 

Appeal from a district court order granting a permanent 

injunction in a torts action. Second Judicial District Court, Washoe 

County; Brent T. Adams, Judge. 

Affirmed. 

Fahrendorf, Viloria, Oliphant & Oster, LLP, and Patrick R. Millsap, Reno, 

for Appellant. 

Karl S. Hall, Reno; Bowen Hall and Ann O. Hall, Reno, 

for Respondents. 

BEFORE PICKERING, C.J., HARDESTY and SAITTA, JJ. 

OPINION 

By the Court, HARDESTY, J.: 

In this appeal, we address whether the district court properly 

concluded that, under the particular circumstances and surroundings of 

the case, a proposed residential wind turbine would constitute a nuisance 

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warranting a permanent injunction against its construction. Below, 

respondents Forest Hills Subdivision, Ann Hall, and Karl Hall 

(collectively, the Halls) sought to permanently enjoin their neighbor, 

appellant Rick Sowers, from constructing a wind turbine on his residential 

property, asserting that the proposed turbine would constitute a 

nuisance. 1The district court agreed and granted the permanent 

injunction. 

We conclude that, in this case, substantial evidence exists to 

support the district court's conclusion that the proposed wind turbine 

constitutes a nuisance. We also determine that the wind turbine at issue 

would create a nuisance in fact. In reaching our conclusion, we hold that 

the aesthetics of a wind turbine alone are not grounds for finding a 

nuisance. However, we conclude that a nuisance in fact may be found 

when the aesthetics are combined with other factors, such as noise, 

shadow flicker, and diminution in property value. In this case, the district 

court heard testimony about the aesthetics of the proposed wind turbine, 

the noise and shadow flicker it would create, and its potential to diminish 

surrounding property values. Based on this evidence, we conclude that 

substantial evidence supports the district court's finding that the proposed 

residential wind turbine would be a nuisance in fact. Thus, we affirm the 

order granting a permanent injunction prohibiting its construction. 

1Though respondents and the district court refer to the wind turbine 

generally as "a nuisance," there are different types of legally defined 

nuisances. As addressed in detail below, this particular proposed wind 

turbine constitutes a nuisance in fact. 

2 
FACTS AND PROCEDURAL HISTORY 

Sowers informed residents of the Forest Hills Subdivision that 

he planned to construct a wind turbine on his residential property. After 

this announcement, Sowers' neighbors, the Halls, and the Forest Hills 

Subdivision filed a complaint in district court claiming that the proposed 

wind turbine posed a potential nuisance because it would generate 

constant noise and obstruct the views of neighboring properties. 2The 

Halls sought to permanently enjoin construction of the wind turbine and 

requested preliminary injunctive relief. 

At the preliminary injunction hearing, the district court heard 

testimony that the subdivision was a very quiet area, and that the turbine 

would obstruct Mr. Hall's view and create noise and shadow flicker. 3 

Another resident, who was also a licensed realtor, testified that the 

proposed wind turbine would diminish property values in the 

neighborhood. A renewable energy specialist testified that the proposed 

wind turbine would likely generate the same level of noise as "the hum of 

2The Halls also claimed that the proposed wind turbine violated the 

CC&Rs of the Forest Hills Subdivision. We agree with the district court 

that the CC&R subsections attempting to limit wind turbines in the 

community violate NRS 278.02077. Thus, further analysis into the breach 

of contract claims associated with the CC&Rs is not needed. 

3"Shadow flicker" refers to the alternating pattern of light and dark 

shadows occurring when the blades of a wind turbine rotate in the line of 

sight of the sun. These shadows often create a flickering or strobe effect. 

See Burch v. Nedpower Mount Storm, LLC, 647 S.E.2d 879, 891 (W. Va. 

2007); Residents Opposed Turbines v. State EFSEC, 197 P.3d 1153, 1160 

n.4 (Wash. 2008). 

3 
a highway," and a contractor hired to construct the turbine testified that 

there was no way to mitigate the shadow flicker caused by the wind 

turbine. 

The district court then conducted a site visit to the location of 

a comparable wind turbine. At this site visit, Sowers brought a decibelreading machine that indicated that the noise from the wind turbine did 

not exceed 5 decibels from 100 feet away. A neighbor to that wind turbine 

testified that it produced some noise and shadow flicker, but that the 

turbine did not bother him. The district court also visited Sowers' home in 

Forest Hills, the proposed site for his wind turbine, but noted there was no 

way for Sowers to test the possible decibel level at that location. 

Following the preliminary injunction hearing, the district 

court granted the permanent injunction. 4The district court heavily 

considered its visit to the site of the comparable turbine and its 

observation that it "was astonished by the size of the structure and the 

'overwhelming impression of gigantism." The district court also considered 

that the Forest Hills Subdivision had panoramic views and was a very 

quiet neighborhood, and that the proposed wind turbine would likely lower 

property values in the area. Based on these findings and the site visits, 

the district court held that the proposed wind turbine constituted a 

nuisance because the turbine would substantially interfere with the 

neighboring residents' enjoyment and use of their property. As such, the 

4At the preliminary injunction hearing, the parties stipulated to 

advance the hearing into a trial on the merits of the Halls' claim for a 

permanent injunction pursuant to NRCP 65(a)(2). 

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district court ordered a permanent injunction enjoining construction of the 

wind turbine. Sowers now appeals. 

DISCUSSION 

On appeal, Sowers argues that the district court improperly 

concluded that the proposed wind turbine constituted a nuisance and 

improperly granted the permanent injunction. We disagree. 

A nuisance is "[a] nything which is injurious to health, or 

indecent and offensive to the senses, or an obstruction to the free use of 

property, so as to interfere with the comfortable enjoyment of life or 

property." NRS 40.140(1)(a). There are several kinds of nuisances, two of 

which are pertinent to this discussion. A nuisance at law, also called a 

nuisance per se, is "a nuisance at all times and under any circumstances, 

regardless of location or surroundings." See66 C.J.S. Nuisances§ 4 

(2013). A nuisance in fact, also called a nuisance per accidens, is "one 

which becomes a nuisance by reasons of circumstances and surroundings." 

Id. 

We recognize that the Washoe County Development Code 

permits the construction of private wind turbines in residential areas if 

such turbines otherwise comply with the requirements of the Code. See 

generallyWashoe County Code Ch. 326 (2010). We are also cognizant of 

this state's aggressive policy favoring renewable energy sources, such as 

wind turbines. See NRS 278.02077. We further acknowledge the 

testimony from the neighbor of the person owning the comparable wind 

turbine who said that the turbine did not bother him. Based on these 

considerations, we do not believe that wind turbines are severe 

interferences in all circumstances, and thus wind turbines are not 

nuisances at law. 

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However, even when a structure or act is not a nuisance per 

se, "[a] nuisance may arise from a lawful activity conducted in an 

unreasonable and improper manner." 66 C.J.S. Nuisances§ 16 (2012) 

(footnote omitted). Thus, a wind turbine may "be or become a nuisance by 

reason of the improper or negligent manner in which it is conducted, or by 

reason of its locality, as where it is done or conducted in a place where it 

necessarily tends to the damage of another's property." Id. Accordingly, 

"a fair test as to whether a business or a particular use of a property in 

connection with the operation of the business constitutes a nuisance [ ] is 

the reasonableness or unreasonableness of the operation or use in relation 

to the particular locality and under all existing circumstances." Burch v. 

Nedpower Mount Storm, LLC, 647 S.E.2d 879, 893 (W. Va. 2007) (internal 

quotations omitted). 

"When deciding whether one's use of his or her property is a 

nuisance to his neighbors, it is necessary to balance the competing 

interests of the landowners, using a commonsense approach." 66 C.J.S. 

Nuisances§ 13 (2012). Although we recognize that preserving a 

residential neighborhood's character is an important and substantial 

interest for subdivision homeowners, see Zupancic v. Sierra Vista 

Recreation,97 Nev. 187, 194, 625 P.2d 1177, 1181 (1981), we have 

consistently held that a landowner does not have a right to light, air, or 

view. See Probasco v. City of Reno,85 Nev. 563, 565, 459 P.2d 772, 774 

(1969); Boyd v. McDonald, 81 Nev. 642, 651, 408 P.2d 717, 722 (1965). 

Thus, in resolving this issue on appeal, we must determine whether the 

proposed wind turbine is "so unreasonable and substantial as to amount to 

a nuisance and warrant an injunction" by balancing "the gravity of the 

harm to the plaintiff against the utility of the defendant's conduct, both to 

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himself and to the community." Cook v. Sullivan,829 A.2d 1059, 1066 

(N.H. 2003) (internal quotations omitted). 

Substantial evidence supports the district court's conclusion that the 

proposed wind turbine is a nuisance in fact 

The determination of whether an activity constitutes a 

nuisance is generally a question of fact. Jezowski v. City of Reno,71 Nev. 

233, 239, 286 P.2d 257, 260 (1955). This court will uphold the factual 

findings of the district court as long as these findings are not clearly 

erroneous and are supported by substantial evidence. Kockos v. Bank of 

Nevada,90 Nev. 140, 143, 520 P.2d 1359, 1361 (1974). 

To sustain a claim for private nuisance, an interference with 

one's use and enjoyment of land must be both substantial and 

unreasonable. Lied v. County of Clark, 94 Nev. 275, 278, 579 P.2d 171, 

173 (1978). Interference is substantial "la normal persons living in the 

community would regard the [alleged nuisance] as definitively offensive, 

seriously annoying or intolerable." Rattigan v. Wile, 841 N.E.2d 680, 688 

(Mass. 2006) (quoting Restatement (Second) of Torts § 821F cmt. d (1979)). 

Interference is unreasonable when "the gravity of the harm outweighs the 

social value of the activity alleged to cause the harm." Burch,647 S.E.2d 

at 887 (internal quotations omitted). 

In the small body of national caselaw regarding wind turbines, 

noise and diminution of property values are the most universally 

considered factors in determining whether a private nuisance exists. 

Some states also consider the presence of shadow flicker in combination 

with noise and property value reduction. 5 

5We have not previously addressed whether the aesthetics of a wind 

turbine is a proper consideration in determining the existence of a 

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Noise 

In a case with similar facts from another jurisdiction, the 

Superior Court of New Jersey held that a residential wind turbine located 

in a quiet neighborhood constituted a nuisance solely on the basis of the 

constant loud noise that the turbine generated. Rose v. Chaikin,453 A.2d 

1378, 1381-82 (N.J. Super. Ct. Ch. Div. 1982). In Rose,the Superior Court 

found that the distinctive sound of the wind turbine produced a 

heightened level of intrusiveness because the neighborhood was quiet, 

separated from commercial and heavier residential noise, and the 

residents had specifically chosen to live in the area due to the peacefulness 

the community afforded. Id. We conclude that the citizens who were 

protected in Roseare analogous to the Halls and other Forest Hills 

...continued 

nuisance. We adopt the view of several jurisdictions that hold aesthetics 

alone cannot form the basis of a private nuisance claim. See Wernke v. 

Halas,600 N.E.2d 117, 121-22 (Ind. Ct. App. 1992); Oliver v. AT&T 

Wireless Services,90 Cal. Rptr. 2d 491, 500 (Ct. App. 1999); Ness v. 

Albert,665 S.W.2d 1, 1-2 (Mo. Ct. App. 1983). The reason for this general 

rule, with which we agree, is that "[a] esthetic considerations are fraught 

with subjectivity." Ness,665 S.W.2d at 2. But we also adopt Burch v. 

Nedpower'sholding that aesthetics-based complaints can be one of several 

factors to consider, because we agree with the rationale of that court when 

it stated: "Unsightly things are not to be banned solely on that account. 

Many of them are necessary in carrying on the proper activities of 

organized society. But such things should be properly placed, and not so 

located as to be unduly offensive to neighbors or to the public." 647 

S.E.2d at 891 (quoting Parkersburg Builders Material Co. v. Barrack, 191 

S.E. 368, 371 (W. Va. 1937)). Thus, while Sowers is correct that the large 

proportions of the turbine alone cannot form the basis of a nuisance 

finding, the district may properly consider the enormity of the object as 

one factor in its decision. 
residents, as the district court heard testimony of several persons living in 

the Forest Hills Subdivision that the subdivision was very quiet, and they 

were concerned that the level of noise from the wind turbine would change 

the character of the neighborhood they had sought to live in. Since a 

renewable energy expert testified that the noise created by the turbine 

would be similar to that of the hum on a nearby highway, there is some 

evidence that the quiet would most likely be gone. Based on this evidence, 

the district court could have determined that the proposed wind turbine 

constitutes a nuisance as a source of excessive noise. 

Diminution to property value 

Burchalso allows for the consideration of potentially 

diminished property values where it is shown that a landowner's use and 

enjoyment of his or her property may be infringed. 647 S.E.2d at 892. 

Since the district court received testimony from subdivision residents that 

they feared an impact on the use and enjoyment of their property, it was 

fair for the district court to also take into account potential harm to 

property values. Thus, it was acceptable to include in its findings and 

conclusions the opinion of the real estate agent who testified that 

properties in proximity to wind turbines decreased in value. 6 

6While Sowers objected to the real estate agent's qualifications as an 

expert, he does not raise that issue on appeal. See Attorney General v. 

Montero,124 Nev. 573, 577 n.9, 188 P.3d 47, 49 n.9 (2008) (an issue raised 

by the appellant for the first time in the appellant's reply brief need not be 

considered on appeal). 

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Aesthetics and shadow flicker 

As noted in footnote 5, a district court may consider the 

aesthetics of the wind turbine only if factors other than unsightliness or 

obstruction of views are claimed. In Burch,the West Virginia court noted 

that shadow flicker was a kind of aesthetic concern that could be 

considered in conjunction with other factors. Id. at 898. It further 

anticipated how a commercial wind turbine facility abutting a 

neighborhood could constitute a private nuisance where constant shadow 

flicker was likely to ruin the enjoyment of residents. Here, Karl Hall 

testified that the wind turbine would create a shadow flicker on his 

property, and the contractor hired to construct the wind turbine testified 

that there is no way to mitigate shadow flicker. Thus, it was not clearly 

erroneous for the district court to consider shadow flicker. 

Nor was it error for the district court to consider the size of the 

proposed wind turbine. Evidence was heard from a representative of the 

company who was supposed to construct the turbine indicating that the 

height of the proposed turbine exceeded 75 feet. The district court got to 

experience just how tall 75 feet is during its site visit to a comparable 

wind turbine. With this perspective, the site visit to Sowers' property 

revealed that his proposed turbine would be a significant imposition on 

the Halls' ability to use their property, as their land, which lays lower 

than Sowers' land, would now have a sizeable obstacle overshadowing it. 

Since evidence of other factors was presented, it was proper for the district 

court to add into its consideration the presence of shadow flicker and the 

size of the turbine and the impact on views. 

As such, we conclude that this evidence concerning the noise, 

diminution in property value, shadow flicker, and aesthetics far outweighs 

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any potential utility of the proposed wind turbine within the Forest Hills 

Subdivision. 7Accordingly, we conclude that the proposed wind turbine 

constitutes a nuisance in fact. 

The district court properly granted the injunction 

A district court may grant a permanent injunction to abate a 

nuisance. NRS 40.140(1). Typically, we review the district court's 

decision to grant a permanent injunction for an abuse of discretion. 

Commission on Ethics v. Hardy, 125 Nev. 285, 291, 212 P.3d 1098, 1103 

(2009). Purely legal questions surrounding the issuance of an injunction, 

however, are reviewed de novo. Secretary of State v. Give Nevada A 

Raise,120 Nev. 481, 486 n.8, 96 P.3d 732, 735 n.8 (2004). 

Sowers argues that the injunction is void because it does not 

specifically state the reasons for its issuance as required by NRCP 65(d). 8 

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7We recognize that the utility of the wind turbine is the fact that it is 

an alternative energy source, which Nevada's public policy favors. See 

NRS 278.02077. However, an NV Energy representative informed the 

court that only Sowers would benefit from this alternative energy source 

since any energy credit for the turbine's use would only be extended to 

Sowers' property, and not to the other subdivision residents. Thus, we 

conclude that the wind turbine's utility within the community is far 

outweighed by its potential harm to the Forest Hills Subdivision residents. 

8In addition, Sowers argues that the injunction should not have been 

granted pursuant to NRS 33.010(1) and (2) because the Halls' complaint 

merely alleged that the proposed wind turbine will cause inconvenience, 

annoyance, and hardship, and did not specifically address how the 

plaintiffs would prevail on their claims or how Sowers' turbine would 

produce irreparable and great injury. However, Nevada is a noticepleading jurisdiction where courts liberally construe pleadings so long as 

claims are fairly noticed to the adverse party. Hay v. Hay,100 Nev. 196, 

198, 678 P.2d 672, 674 (1984). In addition, the permanent injunction was 

based on more than the Halls' complaint. The district court reached its 

decision based on the evidence presented by both parties. Thus, because 

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1 1 
Specifically, Sowers complains that the district court judgment only 

discussed the aesthetics of the proposed wind turbine, and thus, any other 

factors considered by the district court are not apparent on the face of the 

judgment. 

Pursuant to NRCP 65(d), "[e]very order granting an injunction 

and every restraining order shall set forth the reasons for its issuance; 

shall be specific in terms; [and] shall describe in reasonable detail, and not 

by reference to the complaint or other document, the act or acts sought to 

be restrained . . . ." However, "the lack of a statement of reasons does not 

necessarily invalidate a permanent injunction, so long as the reasons for 

the injunction are readily apparent elsewhere in the record and are 

sufficiently clear to permit meaningful appellate review." Las Vegas 

Novelty v. Fernandez, 106 Nev. 113, 118, 787 P.2d 772, 775 (1990). 

While the district court expressed concern with the size of the 

proposed wind turbine, a review of the record reveals it did consider the 

anticipated noise level of the proposed wind turbine, the actual noise level 

of an existing wind turbine, the quietness of the Forest Hills Subdivision 

community, the effects of shadow flicker, and the diminution in value of 

surrounding properties that the wind turbine would cause. Since each of 

these findings is supported by evidence in the record, we conclude that the 

reasons for the injunction are readily apparent in the record and are 

sufficiently clear to permit meaningful appellate review. 

...continued 

the district court's decision was based on the evidence and the district 

court retains the authority to grant any appropriate relief, see NRCP 

54(c), Sowers' argument lacks merit. 

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Hardesty 

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Accordingly, we affirm the district court's order granting a 

permanent injunction.