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Brouha v. Vermont Wind, LLC

United States District Court, D. Vermont

September 23, 2014

PAUL BROUHA, Plaintiff,



Plaintiff Paul Brouha brings this action against Defendants Vermont Wind, LLC, Northeast Wind Partners II, LLC, and First Wind Holdings, LLC, claiming that Defendants' operation of the Sheffield Wind Project is a private nuisance. Presently before the court is Defendants' motion to dismiss Brouha's complaint for failure to state a claim upon which relief can be granted. Defendants argue that Brouha should be collaterally estopped from litigating his nuisance claim because he participated in and appealed the Vermont Public Service Board proceeding granting the wind project a certificate of public good. For the reasons set forth below, the motion to dismiss is DENIED.

I. Factual Background

Brouha filed a complaint in Vermont Superior Court alleging private nuisance against Defendants. In his brief complaint Brouha alleges that the Sheffield Wind Project ("Project"), which Defendants developed and currently own and operate, creates an unreasonable noise impact.[1] Specifically, Brouha alleges that the turbines, some of which are visible from his home, create a noise "of such a nature, magnitude and frequency that it unreasonably interferes with Plaintiff's use and enjoyment of his land...." (Doc. 5 ¶ 13.) The Project is located about 1, 100 feet from Brouha's property line "and approximately one mile from Plaintiff's home." ( Id. ¶ 10.)

Brouha "experiences extreme and frequent stress and irritability, and the inability to enjoy... activities such as working outside, gardening, eating outside, walking, hiking, " etc., which he was able to enjoy before the Project was constructed. ( Id. ¶ 16.) Brouha has consequently endured "pain and suffering, emotional distress, discomfort and inconvenience, loss of the use and enjoyment of [his] property, and a reduction in value of [his] property." ( Id. ¶ 17.) Brouha requests compensatory damages and an injunction against the operation of the turbines. ( Id. at 4.) Defendants removed the action to federal court pursuant to 28 U.S.C. § 1441 and 28 U.S.C. § 1332. (Doc. 1.)

The parties in their motion filings assert additional facts related to the history of the Vermont Public Service Board's ("PSB") issuance of a Certificate of Public Good ("CPG"). However, since the complaint neither alleges these facts nor relies on them, see Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006), they are not detailed here, but are considered in the legal analysis to the extent the parties marshal them for their arguments.

II. Legal Analysis and Conclusions

A. Standard of Review

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A complaint need not contain "detailed factual allegations, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but to survive a motion to dismiss it must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. If a plaintiff has failed to "nudge[] [his] claims across the line from conceivable to plausible, " Bell Atl. Corp., 550 U.S. at 570, they must be dismissed.

B. Brouha Has Pled Facts Plausibly Stating a Claim of Private Nuisance

The court applies the Vermont law of private nuisance. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). "[P]rivate nuisance does not describe any particular conduct of the defendant, but a type of harm suffered by the plaintiff - impaired enjoyment of rights in land." Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 398 (2d ed. 2014). Under Vermont law, a private nuisance is an "interference with the use and enjoyment of another's property [that is] both unreasonable and substantial." Coty v. Ramsey Assocs., Inc., 546 A.2d 196, 201 (Vt. 1988). The standard for a substantial interference is "definite offensiveness, inconvenience or annoyance to the normal person in the community." Id. (internal quotation omitted). "Substantial harm is that in excess of the customary interferences a land user suffers in an organized society." Id. (internal quotation omitted).

Brouha's complaint, while focusing on the noise produced by the Project, mentions that some of the 420-foot-tall turbines of the "utility-scale electric generation facility" are "visible from Plaintiff's property, including from Plaintiff's home." (Doc. 5 ¶¶ 5-11). The parties' motion filings detail the PSB's consideration of the adverse aesthetic impact the Project would pose. (Docs. 11, 14, 15.) Vermont does not recognize adverse aesthetic impact alone as a basis for a private nuisance claim. See Coty, 546 A.2d at 201 (noting that "[a]s a general rule, the unsightliness of a thing, without more, does not render it a nuisance under the law, " and declining to reconsider the general rule).

Brouha's complaint focuses much more extensively on the noise's impact on his use and enjoyment of his land. Unlike unsightliness, excessive noise is an appropriate basis for a private nuisance claim. See Wild v. Brooks, 862 A.2d 225 (Vt. 2004); Trickett v. Ochs, 838 A.2d 66 (Vt. 2003); Pierce v. Riggs, 540 A.2d 655 (Vt. 1987). Brouha alleges that the turbines produce a noise that is "excessively loud, and continues unabated for long periods of time during both day and night, including for periods of multiple days at a time." (Doc. 5 ¶ 14.) Brouha further alleges that the noise impact "causes substantial and extreme stress and annoyance to persons of normal ...

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