A San Francisco Bay Area town is suing the owner of the so called “Flintstone House”, alleging that it is a public nuisance after she added dinosaurs in her backyard to go with the iconic structure designed by architect William Nicholson in 1976. Nicholson built the 2700 square foot living space with new materials in a structure promptly declared the Flintstone House by supporters and detractors alike. The action raises troubling questions in the use of a claim of aesthetic nuisance.
The town of Hillsborough filed a complaint and declared the house a “highly visible eyesore” and “out of keeping with community standards.” Hillsborough is specifically demanding the removal of the dinosaurs.
As we have previously discussed, such charges are usually rejected. The Vermont Supreme Court put it well in a recent opinion (citing California cases):
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.
=What is interesting is that the actual Hillsborough code expressly cites “aesthetic nuisances” as actionable:
Nuisance conditions means any nuisance as defined by law; or any attractive nuisance which may be detrimental to the health or safety of children whether in a building, on the premises of a building, or upon an unoccupied lot.” This includes “physical conditions.”
You can make your own judgment on whether these dinosaurs are an eyesore but the nuisance question goes to free speech and the right of property owners to decorate their property as they see fit. This strikes me as outside of recognized parameters for nuisance actions.