Vermont Supreme Court Rules That Ugly Is Not Actionable As Nuisance Claim

500px-vtsupremecourt03fixed_tilt_solar_panel_at_canterbury_municipal_building_canterbury_new_hampshireThere is an interesting case out of the Vermont Supreme Court on aesthetic nuisance, a subject that I cover in my torts course.  At issue in Myrick v. Peck Elec. Co., 2017 VT 4 was a consolidated challenge to a solar power development on the basis that the solar power structures would be unsightly and reduce property value. In line with other courts, the Vermont Supreme Court roundly rejected the notion that ugliness or unattractiveness is a viable basis for a nuisance action under common law torts.

A group of landowners from New Haven appealed from the summary dismissal of their action before the trial court.  They were opposed to solar arrays that would to be constructed for commercial energy production.  The landowners argued that the rural aesthetic would be ruined by the structures and that they are unnecessarily unsightly.  They claimed the reduction in property values as their injuries.

As I have previously written, I have been a long-standing devotee of Vermont, which I consider one of the truly most beautiful places on Earth. I particularly appreciate the effort of Vermonters to keep their state pristine and environmentally protected.  Indeed, I have made repeated pitches to my wife through the years to move to Vermont but she (and my kids) are used to warmer weather.  However, despite my strong sympathy with the litigants (and support for effort to require companies to better incorporate their structures aesthetically into areas of this kind), the common law has always been hostile to nuisance claims based on aesthetics.  As observed in 81 N.Y. Jur. 2d Nuisances § 17 “Things merely disagreeable, however, which simply displease the eye or offend the taste, or shock an oversensitive or fastidious nature, no matter how irritating or unpleasant, are not nuisances.”  In one of the earliest such cases out of Oklahoma, the court observed in Bixby v. Cravens that landowners are “not compelled to consult the ‘aesthetic tastes’ of their neighbors as to the kind of fence they should build or whether the smooth or rough side thereof faced in or out, or as to the color of the paint they should use thereon.”

There is a division among the states on how to handle such claims but it is hard to succeed in most states on a claim of aesthetics alone.  As recognized by the Vermont Supreme Court, some states allow for aesthetic claims when combined with traditional nuisance elements while a few allow for such claims to be made with proper showings of injury.  Most states simply bar such claims.  There are cases involving “spite fences” which have been successful where there is a something of “malice” and no other cognizable purpose behind the structure or addition.  Vermont itself recognized in Coty v. Ramsey Assocs., Inc.  “the great majority of jurisdictions have held that where a defendant has acted solely out of malice or spite, such conduct is indefensible on social utility grounds, and nuisance liability attaches.” 149 Vt. at 458, 546 A.2d at 196.  That is clearly not the case here.

Faced with a non-spite case, the court found the law to be clearly on the side of the solar power companies.

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. . . . A substantial interference requires some showing that a plaintiff has suffered harm to “the actual present use of land” or to “interests in having the present use of the land unimpaired by changes in its physical condition.” Restatement (Second) Torts § 821D cmt. b (emphasis added). A landowner’s interest “in freedom from annoyance and discomfort in the use of land is to be distinguished from the interest in freedom from emotional distress. The latter is purely an interest of personality and receives limited legal protection,” since emotional distress is not an interference with the use or enjoyment of land. Id.For example, there is a difference between, on the one hand, a complaint that solar panels are casting reflections and thereby interfering with a neighbor’s ability to sleep or watch television and, on the other hand, the landowners’ complaint in this case—that the solar panels are unattractive. The former involves a potential interference with the use or enjoyment of property, while the latter involves emotional distress.

Additionally, a complaint based solely on aesthetic disapproval cannot be measured using the unreasonableness standard that underpins nuisance law. This is because unlike traditional bases for nuisance claims—noise, light, vibration, odor—which can be quantified, the propriety of one neighbor’s aesthetic preferences cannot be quantified because those preferences are inherently subjective. Cf. Naegele Outdoor Ad. Co. of Minn.. v. Vill. of Minnetonka, 162 N.W.2d 206, 212 (Minn. 1968)(observing “primary objection” to aesthetic-based regulation is “its subjective nature, for what may be attractive to one man may be an abomination to another”). The appellants [**7]  find the solar panels unsightly, but other equally reasonable people may find them attractive. And while the landowners may be frustrated by the appearance of solar arrays adjacent to their property, “they surely can see the converse mischief (and infringement) on a homeowner’s property rights if homeowners could prevent their neighbors from construction deemed unattractive.” Oliver, 76 Cal. App. 4th at 536; see also Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 512 (Tex. App. 2008) (observing that recognizing aesthetic nuisance would give neighbors “in effect, the right to zone the surrounding property”).

Likewise, recognizing aesthetic nuisance would transform nuisance law “into a license to the courts to set neighborhood aesthetic standards.” Oliver, 76 Cal. App. 4th at 525. “In our populous society, the courts cannot be available to enjoin an activity solely because it causes some aesthetic discomfort or annoyance. Given our myriad and disparate tastes, life styles, mores, and attitudes, the availability of a judicial remedy for such complaints would cause inexorable confusion.” Green v. Castle Concrete Co., 509 P.2d 588, 591 (Colo. 1973) (en banc). The judicial branch is ill-suited to be an arbiter of style or taste, and given the subjectivity of aesthetic preferences, they must remain the province of legislative decision-making in the form of zoning laws and,in specific instances, restrictive covenants that the courts are competent to interpret and apply.

The Court noted that this has been the rule of 120 years and will not change in 2017.  On the positive side, solar power will hopefully reduce pollution over all in the state and preserve Vermont, one of our nation’s greatest natural treasures.

 

Here is the opinion: Myrick Decision

 

27 thoughts on “Vermont Supreme Court Rules That Ugly Is Not Actionable As Nuisance Claim

  1. Reminds me of a round:

    Don’t throw your trash in my backyard,
    my backyard, my backyard.
    Don’t throw your trash in my backyard,
    my backyard’s full!

  2. What about coal companies blowing the tops off of mountains – “removing” beautiful scenery along with it’s top soil?

    What about cell-phone towers installed by private companies? Unconstitutional under Eminent Domain just a few years ago before the activist U.S. Supreme Court amended the Constitution (without a constitutional amendment).

    What about a Tea Party flag or some other flag?

    Be careful what you want to regulate, it might go places you don’t like!

    • The issue is whether there is a law preventing you from doing so. Traditionally the law of nuisance has not encompassed aesthetics, and that is what the opinion was about. On the other hand, threats to health and safety have traditionally been actionable as nuisances. Therefore, if you throw litter all over your front yard but not to the extent that it either 1) violates a statute or ordinance in effect or 2) constitutes a hazard to health and safety, yes you can. In fact, I frequently see yards full of what I consider trash and the owner probably considers decoration.

  3. Vermont is a beautiful state. But, it is too socialistic for me. I have relatives in the Green Mountain State and visiting is all I need. Living there holds no attraction. New Hampshire is just as beautiful and not as socialistic. Plus, NH has a coast, VT is the only New England state w/o an ocean coastline.

  4. Today. The next door neighbor of any of the judges who sign on to this premise can erect a solar panel in their front yard. A photo of long dong silver could go up too.

  5. A friend of mine in NY lives next door to Hillary and was going to sue her for nuisance for being ugly. I just sent him this article.

  6. Aesthetics is a fundamental ingredient when considering new developments and changes to existing developments. Of course, extremes can be involved in both arguments. It is not entirely I nor is it entirely We. One should have the right to install solar panels but every effort should be made to make them aesthetically pleasing or as inoffensive as possible. Americans seem to gravitate to the extremes these days. That’s how we ended up with such a disgusting and deplorable upcoming President, DDT.

  7. The judges, who write these opinions–or, perhaps, their law clerks–have clearly never been faced, personally, with such dilemmas. Living in their respective and contained bubbles, they are unaffected and untouched by such realities–such as living next to a neighbor, whose property is filled with unsightly solar panels or gargantuan wind turbines–and they proceed to conjure up these lofty platitudes, which do not account for or consider the aesthetics involved when pristine landscapes are scarred by these monstrosities. What’s that expression? Something about the pebble, in your own shoe, causing pain? The bottom line is, obviously, that one needs to feel the pinch and the discomfort, personally, to truly empathize with another’s condition. These opinions, no doubt, are the work of individuals who live quite sheltered and sanitized lives, where such trivialities of the little people haven’t encroached upon their comfortable and undisturbed lives. Meat comes from plastic packages in the grocery, electricity comes from that switch on the wall and clean water magically appears from the tap. There is no thought to the processes needed to make such things happen, and, especially, what living next to a facility, would entail. Once that encroachment does, however, occur, that’s when we will begin reading some drastically different opinions pertaining to this issue. Until then, more of the same.

    • “There is no thought to the processes needed to make such things happen,”

      There is far more consideration given to empowering institutions to infringe the rights of those we disagree with than there is in the consequences of such empowerment. So let’s say the courts side with the aesthetic beauty argument today. That’s no longer a slippery slope of property rights infringement, that’s a freefall to the end of property rights altogether.

      • Olly

        I believe that you have missed the point of my comment. Until and unless those, who write these opinions, personally experience the pain or discomfort associated with such obstructions–whether such obstructions are situated next door, at a neighbor’s yard, or placed in their once pristine and untouched neck of the woods– their comments and decisions will persist and continue to convey the naivete of those whose lives remain untouched by such nuisances and annoyances. A pretty simple concept, really. Whether you are Joe Average or wearing a black robe–it’s the same, basic concept. One doesn’t understand comprehend that which is foreign to him. Empathy is the result of personal, and, often painful experiences. Without the benefit of those experiences, one merely surmises and tries to guess at the impact of what others endure. I say, let the owners of a slaughterhouse buy the property adjacent to one of the precious and treasured country homes of one of these judges, where the putrid and unrelenting stench and noise, 24/7, never subsides. I say, let a neighbor, build and plant a series of wind turbines, strictly on the neighbor’s own property, which obstructs one of these judge’s once, unobstructed view of the mountains, the forest or the ocean. I say, let the value of that beloved country home–in the judge’s family, for generations, and, a sanctuary from the hustle and bustle of everyday life–tumble, as the neighbor exercises his right to erect and assemble any assortment of structures. Yes, Olly, I use the term “let” because it is evident, from the out-of-touch and clueless opinions, which these judges espouse, that such occurrences have yet to happen in their lives. Once the impact of such occurrences is, however, personally felt by these judges, I suspect that we will witness a more sympathetic and compassionate answer, which recognizes the rights and interests of all involved.

        • “Until and unless those, who write these opinions, personally experience the pain or discomfort associated with such obstructions–whether such obstructions are situated next door, at a neighbor’s yard, or placed in their once pristine and untouched neck of the woods– their comments and decisions will persist and continue to convey the naivete of those whose lives remain untouched by such nuisances and annoyances.”

          Bam Bam,
          I got your point but I believe you missed mine. Let me take liberty with the above quote to try again.

          Until and unless those, who write these opinions, personally experience the pain or discomfort associated with such speech–whether such speeches are situated next door, at a neighbor’s yard, or placed in their once pristine and untouched neck of the woods– their comments and decisions will persist and continue to convey the naivete of those whose lives remain untouched by such nuisances and annoyances.

          Madison wrote regarding Property:

          “Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.

          Where there is an excess of liberty, the effect is the same, tho’ from an opposite cause.

          Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”

          I prefer the Courts have empathy for the rights of man. I believe a just and enduring society is one that respects rights first. Show me a culture sustained on that principle and we’ll discover one with the capacity for empathy towards their neighbor.

          • The question, is, obviously, whose rights? Do the rights of the neighbor, business, etc., trump my rights? And, if so, why? When do I, as a neighbor, as a citizen of the community, etc., have the ability to demand that my rights be protected against what I consider to be an infringement of said rights?

            It is crucial to remember that when Madison penned the above-referenced quote, that individuals were living on large plots of land which were located, most probably, a great distance from the closest neighbor. That doesn’t diminish the underlying principles contained in his writings, but reading words, without any reference as to context–including the time, the place and the era–is foolish, at best. When Madison put these words to paper, there was no thought regarding the rapid and wholesale disappearance of vast, untouched and open spaces. Vast, untouched and open spaces that we, in 2017, comprehend need our constant and vigilant protection and safekeeping. A thought that never crossed Madison’s mind. It’s called context. Madison had no conscious drive to address areas which needed to be reserved and protected from man and his artificial structures. It was, indeed, a different time, and the challenges and dangers faced today are not consistent with those which existed for Madison. It is in that context that you must read and interpret his thoughts–applying those principles to the realities which exist in 2017.

            • Are you arguing that property rights are alienable depending on the context (aesthetics) in which it is demanded? You would be wielding the sword from the pointy end.

              • I’m alleging that Madison’s words need to be read and, more crucially, to be understood and interpreted in the context and era in which they were written. As brilliant as he may have been, someone born in 1751 would, obviously, have had no experience or knowledge with what constitutes life, with all of its complexities and intricacies, in 2017. That’s a given. The key is to balance those principles with life as it is today–the challenges and the hurdles, which, for Madison, never existed or ever would exist. He couldn’t address what he could not fathom.

                While different from property rights, for how many years did I, as a nonsmoker, endure dinners, at restaurants, ruined, as inconsiderate and rude smokers puffed away, oblivious to those who must share the same, contained airspace? For how many years did I, return from the movies or other establishments, with my hair and my clothes reeking from the stench of cigarette smoke, not to mention the secondhand smoke to which I was unfairly exposed? I can still remember flying to the Middle East, on TWA, no less, in the non-smoking section, only to be trapped, in a plane, with those who believed that their right to smoke, inconvenience and harm others trumped my freedom to be spared such indignities. It hasn’t been so long since laws have been enacted to spare, those of us, from what the smokers refer to as their precious rights, allowing us to attend movies, restaurants and other contained spaces free from their alleged right to smoke and kill themselves. Again, not property rights, but an example of where one has the right to be free of the harm caused by others exercising their purported rights. The harm inflicted upon others–either in the form of smoke, or solar panels littering a community or wind turbines altering and damaging the landscape–must be weighed against the rights and the needs of others.

                • In your example of smoking, there was no change in the law until it was proven second-hand smoke was harmful to others. The principle is still the same. As noxious as second-hand smoke might have been to some, it took science to prove the actual harm to the natural rights of others. It took time and the case was made. The aesthetic opinion didn’t and shouldn’t be allowed to infringe the rights of others. It will always be used to persuade others to action, but it should never be the basis to restrict rights. If you permit this then EVERYTHING is fair game.

                  • Unfortunately, it took decades before these laws were enacted to protect nonsmokers. If you truly and honestly believe that the medical establishment had no clue or data that those exposed to secondhand smoke could suffer any detrimental effects, then I have a bridge to sell you. Even, if I played along with your example, where you believe that no harm had previously been proven from such exposure, what about the simple and irrefutable discomfort suffered by those forced to endure smoke-filled establishments? Why should nonsmokers have been forced to suffer the teary eyes, congestion and stench just because others who claimed to have been exercising their rights? At what point do those competing rights collide? I’ll tell you when: the moment that my right to breathe freely and easily, unencumbered by smoke or any other toxins emanating from the smokers, was altered, that’s the moment that my right to be protected from such reckless and inconsiderate acts took precedence. Medical science simply proved what I, along with most others, already knew. Again, as I said before, once these judges start to have their homes impacted by these alleged, innocuous nuisances–the fields of solar panels adjacent to their vacation homes or the wind turbines blocking their view of the ocean–we will begin to read some alternate decisions. Smokers finally had to have laws enacted to prevent them from disrupting and disturbing the lives of others; those who disrupt the lives of their neighbors, via these structures, will find the laws changing after those on the bench have been sufficiently impacted.

                    • “At what point do those competing rights collide? I’ll tell you when: the moment that my right to breathe freely and easily, unencumbered by smoke or any other toxins emanating from the smokers, was altered, that’s the moment that my right to be protected from such reckless and inconsiderate acts took precedence.”

                      Bam Bam,
                      Finally. That’s the right question and an even better answer. We cannot establish laws to accommodate every perceived slight to our aesthetic tastes. We’re already seeing this playing out with speech restrictions and it’s not going so well for the 1st amendment. Do you really want our judiciary to base their decisions on empathy or would you want them to base their decisions on the law? Leave empathy or utilitarianism to the legislator, after all, they are looking for votes. But when it comes to the judiciary, I want them to be limited by the constitution and the security of rights.

                      When it comes to these solar panels, if there is an infringement of rights it should be quantifiable.

                    • “Their reluctance to follow the evidence gives us a third kind of purported protection in which the code words “public-health crisis” and “epidemic” form the tip of a spear intruding into the lives of individuals to restrict lawful activities that the academy simply finds distasteful.”

                      http://www.nationalreview.com/article/443876/public-health-crisis-gun-violence-debunked?utm_source=Sailthru&utm_medium=email&utm_campaign=Daily%20Trending%20Email%20Reoccurring-%20Monday%20to%20Thursday%202017-01-16&utm_term=NR5PM%20Actives

                      If you want judges to simply be empathetic to your cause then you should have no problem when they are empathetic towards gun control.

    • I think you missed the point of the arguments and judgement. Aesthetics was the argument and it is so subjective as to deny quantification. The judgement follows the law. Until the argument can be made objective, the law is unlikely to change.

      I, too, prefer the rural environment sans man-made stuff, but that preference is modified by the choice between a solar spill and an oil spill.

      The state could encourage the installation of solar panels on the roofs of all buildings, and require it for all new developments. It would surely upset the corporations planning large installations of solar panels for commercial sale, but in the long run, would preserve the bucolic while providing clean power (ignoring for the moment the building of the solar panels).

  8. A wise and eminently sensible decision. Of course, those who prefer aesthetic regulation in their lives can choose from residential developments subject to a broad range of mandatory rules and restrictions.

  9. Of course this is in a rural area. They wouldn’t have approved the zoning of anything unsightly in a suburb.

    I love solar power, especially end user production. However, the commercial solar generators look quite industrial. It certainly wouldn’t fit in with an upscale neighborhood. And rural residents lack the votes for self determination of what gets built in their communities. So the answer to any eyesore is to stick it in a rural town. I suppose they are lucky that this is not the type of solar power utility that heats water, as it would zap any wildlife, and I suppose kids, who wander by.

    I do have to admit, however, that the Libertarian side of me does love the right to build what you want on your property. It’s the not-in-my-backyard syndrome that I dislike.

  10. It would seem aesthetics is the fundamental argument for the curtailing of speech. It’s relatively easy to quantify the negative impact on one’s physical property but how do you quantify the negative impact on one’s mind?

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