PORTSMOUTH — A Superior Court judge has denied a request by a group of residents living near the wind turbine at Portsmouth High School for a preliminary injunction to prevent the machine from operating.

The plaintiffs — Denise Wilkey, Mark Wilkey, Jayme Souza, David Souza, Donna Olszewski, Anthony Olszewski, David Schuller, and Mark Jones — had argued the turbine, which was installed in 2016 after a previous one had failed, constituted both a public and private nuisance.

They also argued they are third-party beneficiaries of the contract between the town and WED Portsmouth One, the turbine’s owners, and that the contract required the new turbine to have “no greater adverse impact on the neighboring properties than the previous” one. Each of the eight plaintiffs, who live between 740 and 1,115 feet from the turbine, alleges the new machine generates more noise and shadow flicker than the prior turbine.

They contended that “the constant noise, vibrations and flicker (emanating) from the turbine prevents them from enjoying their homes, disrupts their sleep, causes headaches, nausea, requires them to close their windows, prevents them from enjoying their outdoor portions of their property and is annoying and aggravating,” according to the complaint.

In his March 23 ruling, however, Associate Justice Richard Licht sided with the defendants, WED and the Town of Portsmouth, who argued the plaintiffs “failed to meet their burden to show an irreparable harm.”

One issue was the timeliness of the complaint, said the defendants, who argued the plaintiffs waited between five and 12 years to bring the notion, and that the U.S. District Court for the District of Rhode Island has found that a delay in seeking preliminary injunctive relief generally “cuts against a finding of irreparable injury.”

The current wind turbine started supplying power in August 2016, but its predecessor — some of the defendants also complained about noise and shadow flicker from that machine — began operations in March 2009, the defendants noted. 

The judge agreed with that argument, stating that “living with the (current) wind turbine for over five years (inclusive of its noise and shadow flicker) is an exceptionally long time to now claim irreparable, immediate harm.”

Furthermore, the judge stated, “It is highly questionable whether being free from flicker is a public right.”

Noise levels questioned

Wilkey and the Souzas had, over the years, complained to police about the noise generated by the turbine after 10 p.m. Under the Portsmouth noise ordinance, sound levels from property boundaries in residential areas and open spaces cannot exceed 65 decibels between 7 a.m. and 10 p.m. and 55 decibels between 10 p.m. and 7 a.m. In commercial areas, sound levels cannot go over 75 decibels at all times.

At the Souza home, which is in a residential zone, 15 readings ranged from 44.1 decibels to 56.6 decibels from October 2017 to September 2018, with only one of them exceeding 55 decibels, the court ruling stated. At the Wilkey home, which is in a commercial zone, the readings all stayed below 75 decibels, ranging from 53.7 to 64.1 decibels.

An expert retained by the plaintiffs, Harold Vincent, who holds a Ph.D in ocean engineering from the University of Rhode Island, conducted his own study of the turbine at two different sites in December 2020 and January 2021. He found the radiated noise levels at the measurement sites were “consistently higher than those obtained in previous noise studies,” and reasoned that was “due to the improper use of the A-weighting that deliberately reduces the contributions of low frequency noise and suppresses the contributions of any strong tones.”

However, the judge pointed out that Vincent does not hold degrees in either acoustics or audiology, nor could he identify any other Rhode Island community that doesn’t use an A-weighted scale when taking noise measurements. 

Physical, mental discomforts

The plaintiffs had argued that the turbine caused them to experience physical and mental harm due to the turbine’s operation. Among their claims:

• Donna Olszewski said she was forced to install solar panels to offset the high electric bills due to the fact she could no longer open her windows because of the noise.

• She and several other plaintiffs said they needed prescription sleeping pills due to the noise.

• The shadow flicker generated by the turbine creates a “strobe light effect” which causes migraine headaches, dizziness and nausea, forcing “some plaintiffs to leave their home because it is so unbearable.”

Judge Licht, however, stated the plaintiffs presented “no empirical (i.e., non-testimonial) evidence linking the wind turbine to any of their alleged harms.” Furthermore, Vincent “could not link this high noise level to any of the Plaintiffs’ alleged adverse health effects,” the judge stated.

Plaintiff comments

Denise Wilkey, one of the plaintiffs, stated in an e-mail to The Portsmouth Times that she and the other residents are discussing their options and have not yet decided whether to appeal the Superior Court decision. 

They disagree with Judge Licht’s decision, she said.

“First off, we are not against industrial electric generating plants, just the improper siting of them in residential neighborhoods,” Wilkey said. “This second, 100-foot taller turbine does indeed exceed our town noise ordinances, as evidenced by police meter readings in the middle of the night and the issuance of notices of violation to the turbine owner.

“Until this issue is resolved, we will continue to fight for our rights as taxpaying town residents. We strongly believe that once all the facts are exposed in a jury trial, they will agree that this is a public nuisance.”