Tuesday, April 4, 2017
A nuisance is an invasion of an individual's interest in the use and enjoyment of land rather than an interference with the exclusive possession or ownership of the land. The concept has become increasingly important in recent years due to land use conflicts posed by large-scale, industrialized confinement livestock operations. But, that’s not the only activity that has generated nuisance litigation. “Renewable” energy also has started to produce its own subset of nuisance cases. In these cases, the claim might involve allegations of noise, vibration, flicker, and damage to local aesthetics, among other annoyances.
But, can a nuisance claim be based solely on a claim of harm to aesthetics? If so, that could spell trouble for sources of renewable energy. The issue has been addressed by court on numerous occasions, but came up most recently in Vermont involving the installation of solar panels in a rural area – a so-called solar farm.
The issue of aesthetics (visual blight) and nuisance is the focus of today’s post.
Nuisance – In General
Nuisance law prohibits land uses that unreasonably and substantially interfere with another individual's quiet use and enjoyment of property. The doctrine is based on two interrelated concepts: (1) landowners have the right to use and enjoy property free of unreasonable interferences by others; and (2) landowners must use property so as not to injure adjacent owners.
Nuisance law is rooted in the common law and two primary issues are at stake in any agricultural nuisance dispute - whether the use alleged to be a nuisance is reasonable for the area and whether the use alleged to be a nuisance substantially interferes with the use and enjoyment of neighboring land. Each case is highly fact-dependent with the court considering multiple factors.
A private nuisance is a civil wrong that is based on a disturbance of rights in land. A private nuisance may consist of an interference with the physical condition of the land itself, as by vibration or blasting which damages a house, the destruction of crops, flooding, the raising of the water table, or the pollution of a stream or underground water supply. A private nuisance may also consist of a disturbance of the comfort or convenience of the occupant as by unpleasant odors, smoke, dust or gas, loud noises, excessive light, high temperatures, or even repeated telephone calls. The remedy for a private nuisance lies in the hands of the individual whose rights have been disturbed. A public nuisance, on the other hand, is an interference with the rights of the community at large. A public nuisance may include anything from the obstruction of a highway to a public gaming house or indecent exposure. The normal remedy is in the hands of the state.
Nuisance and Renewable Energy Production Activities
Odors from large-scale livestock confinement operations are not the only activities on rural property that give rise to nuisance actions. While such activities tend to predominate nuisance actions, especially in the Midwest, the development of large-scale wind turbine operations is also generating a great deal of conflict among rural landowners. While nuisance litigation involving large-scale “wind farms” is in its early stages, a significant opinion from the West Virginia Supreme Court in 2007 illustrates the land-use conflict issues that wind-farms can present. In Burch, et al. v. Nedpower Mount Storm, LLC and Shell Windenergy, Inc., 220 W. Va. 443, 647 S.E.2d 879 (2007), the West Virginia Supreme Court ruled that a proposed wind farm consisting of approximately 200 wind turbines in close proximity to residential property could constitute a nuisance. Seven homeowners living within a two-mile radius from the location of where the turbines were to be erected sought a permanent injunction against the construction and operation of the wind farm on the grounds that they would be negatively impacted by turbine noise, the eyesore of the flicker effect of the light atop the turbines, potential danger from broken blades, blades throwing ice, collapsing towers and a reduction in their property values. The court held that even though the state had approved the wind farm, the common-law doctrine of nuisance still applied. While the court found that the wind-farm was not a nuisance per se, the court noted that the wind-farm could become a nuisance. As such the plaintiffs’ allegations were sufficient to state a claim permitting the court to enjoin the creation of the wind farm. The court remanded the case to the trial court for a trial. At trial, the defendant was given an opportunity to establish that the operation of the wind farm did not unreasonably interfere with the plaintiffs’ use and enjoyment of their property. That’s how most of the cases positioned like this would turn out. Courts thend not to permit a claim for “anticipatory nuisance.” A party is entitled to show that they can conduct their activity without creating a nuisance.
In another case involving nuisance-related aspects of large-scale wind farms, the Kansas Supreme Court upheld a county ordinance banning commercial wind farms in the county. Zimmerman v. Board of County Commissioners, 218 P.3d 400 (Kan. 2009). The court determined that the county had properly followed state statutory procedures in adopting the ordinance, and that the ordinance was reasonable based on the county’s consideration of aesthetics, ecology, flora and fauna of the Flint Hills. The Court cited the numerous adverse effects of commercial wind farms including damage to the local ecology and the prairie chicken habitat (including breeding grounds, nesting and feeding areas and flight patterns) and the unsightly nature of large wind turbines. The Court also noted that commercial wind farms have a negative impact on property values, and that agricultural and nature-based tourism would also suffer.
Aesthetic Injury Only?
But what if the only complained-of problem is aesthetic? Is that enough to make out a claim for nuisance? The issue came up recently in a court case from Vermont that involved solar panels. In Myrick v. Peck Electric Co., et al., No. 16-167, 2017 Vt. LEXIS 4 (Vt. Sup. Ct. Jan. 13, 2017), the plaintiff was a landowner that sued the defendant, two solar energy companies, when the plaintiff’s neighbors leased property to the defendants for the purpose of constructing commercial solar arrays (panels). The plaintiff claimed that the solar arrays constituted a private nuisance by negatively affecting the surrounding area’s rural aesthetic which also caused local property values to decline. The trial court granted summary judgment to the defendants. On appeal, the Vermont Supreme Court affirmed. The Court noted that Vermont law has held, dating back to the late 1800s, that private nuisance actions based on aesthetic disapproval alone are barred. The Court rejected the plaintiff’s argument that the historic Vermont position should change based on changed society. The Court also rejected the notion that Vermont private nuisance law was broad enough to apply to aesthetic harm, stating that, “An unattractive sight, without more, is not a substantial interference as a matter of law because the mere appearance of the property of another does not affect a citizen’s ability to use and enjoy his or her neighboring land.” Emotional distress is not an interference with the use or enjoyment of land, the court stated. But, if the solar panels casted reflections, for example, that could be an interference with the use and enjoyment of one’s property. Aesthetic values, the court noted, are inherently subjective and the court wasn’t going to set an aesthetic standard. The Court also noted that the plaintiffs had conceded at oral argument that they were not pursuing a claim that diminution in value, by itself, was sufficient to constitute a nuisance. However, the Court went on to state that a nuisance claim based solely on loss in value invites speculation that the Court would not engage in.
The decision from Vermont follows the majority rule among jurisdictions in the United States. Of course, there are some exceptions. For example, a few courts have held that proof of general damages (diminished quality of life) may be sufficient evidence to support a monetary award. See, e.g., Stephens, et al. v. Pillen, 12 Neb. App. 600 (2004). But, in general, aesthetic injury, by itself, is not enough to make a claim for nuisance. However, if it is coupled with claims of substantial interference with use and enjoyment of property, a nuisance claim might successfully be made. Renewable energy generation tends to require a large amount of land for its operation, but unsightliness, by itself, probably won’t be enough to make it a nuisance.