There 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