In torts, I teach aesthetic nuisance cases where courts tend to reject claims of injury due to eyesores and blight. Such claims are disfavored in both codes and cases: “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.” 81 N.Y. Jur. 2d Nuisances § 17 (2014).
As one court ruled in Missouri in Ness v. Albert, 665 S.W.2d I (Mo. Ct. App. 1983):
“Aesthetic considerations are fraught with subjectivity. One man’s pleasure may be another man’s perturbation…Judicial forage into such a nebulous area would be chaotic. Any imaginary good from doing so is far outweighed by the lurking danger of unduly circumscribing inherent rights of ownership of property and grossly intimidating their lawful exercise.”
While not a nuisance action, the decision in National Park Service, et al. v. National Trust for Historic Preservation in the United States raises a parallel issue on standing. At issue is the right of a private group to stop a major construction project based on claims that the ballroom is oversized and obnoxious to some.
The Court has long maintained a demanding standing doctrine under Article III of the Constitution, requiring a showing of an “injury in fact” that is based on the “invasion of a legally protected interest.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). That requires an injury that is “(a) concrete and particularized . . . and (b) actual or imminent.”
The claim, upheld by the D.C. Circuit, is based primarily on the eyesore injury of one person who would have to walk by the structure:
“To establish its standing to bring this case, the Trust relies on a declaration from a single of its members, Alison K. Hoagland. Hoagland says she lives in Washington, D.C., and expects to visit the neighborhood around the White House “about once a month.” App. to Application 73a–74a. She asserts that having to view the finished ballroom the government is constructing would cause her to suffer “injuries” to her “aesthetic, cultural, and historical interests” because she finds the “scale,” “height,” and “massing” of the government’s design distasteful. Id., at 75a. On the strength of that declaration, the Trust contends, it has Article III standing to challenge the East Wing project.”
The per curiam opinion rejects the aesthetic injury at the base of the standing claim. The majority notes the importance of the project, including security elements such as the bunker below the ballroom. It then states:
Meanwhile, on the other side of the ledger and against these harms, the only harm the Trust claims is the offense one of its members will suffer from having to view a structure of the “scale,” “height,” and “massing” the government intends…These harms and equities are not nearly in equipoise.
The size of the ballroom has drawn criticism from many, including many who agree with the President that a ballroom has long been needed. Architects associated with the project demurred as the President demanded a large structure. However, the question is whether that injury alone can sustain judicial review. The Supreme Court has reaffirmed that an eyesore is no injury when it comes to Article III standing.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”