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Effort to Block Wind Farm Based on Aesthetic Impact Rejected by Texas Courts
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December 14, 2009
By Laura Kent
Neighbors sued wind farm developer-operators for injunctive relief, claiming public and private nuisance arising from construction and operation of the wind farm. Defendants moved for partial summary judgment against those nuisance claims “based upon the wind farm’s aesthetical impact,” and the motion was granted. The remaining claims were tried before a jury, with an instruction that it could not consider the wind farm’s aesthetic impact, and the jury returned a verdict for defendants. Plaintiffs appealed.
On appeal, plaintiffs made three arguments to support their position that the trial court erred when it dismissed their nuisance claims based on the aesthetic impact. First, they argued “that aesthetics may be considered as one of the conditions that creates a nuisance,” taking account of its visual impact in connection with is blinking lights, shadow flicker and operational noise. Next, plaintiffs argued that “nuisance law is dynamic and fact-specific” and that “older case holdings [that aesthetics could not be the basis for a nuisance claim] should not be blindly followed without considering intervening societal changes.” Finally, they argued that nuisance claims should be viewed from the perspective of reasonable people and that “case law involving unreasonable plaintiffs asserting subjective complaints should be considered accordingly.”
Defendants responded that: 1) no Texas court had recognized a nuisance claims based on aesthetics; 2) public policy supports this rule because “giving someone an aesthetic veto over a neighbor’s use of land would be a recipe for legal chaos”; and 3) the impacts claimed by plaintiffs from the wind farm were an “emotional reaction to the sight of the wind turbines” and did not prevent them from using their property.
The Texas Court of Appeals affirmed the trial court’s grant of summary judgment on the aesthetics issue and the jury verdict. Rankin v. FPL Energy, LLC, 266 S.W.3d 506 (Tex.App. 2008).
Texas law defines a nuisance as “a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfiture or annoyance to persons of ordinary sensibilities.” The appeals court noted that successful nuisance claims typically involve an invasion of plaintiff’s property by light, sound, odor or foreign substance, citing cases involving floodlights, noisy air conditioners, dust, lint, cotton burrs, flooding, flies and foul odors. It wrote that Texas courts had found not nuisance on the basis of aesthetics.
The appeals noted that under Texas law, nuisance claims are either per se or in fact. Because the wind farm was lawful, it could not constitute a nuisance per se. The court also noted that a nuisance can arise in three circumstances: “(1) by the encroachment of a physically damaging substance; (2) by the encroachment of a sensory damaging substance; and (3) by the emotional harm to a person from the deprivation of the enjoyment of his or her property, such as by fear, apprehension, offense, or loss of peace of mind.”
The appeals court wrote that no existing Texas law allowed a nuisance in fact cause of action “based on fear, apprehension, or other emotional reaction resulting from the lawful operation of industry.”
The court agreed with defendants’ contention that evidence introduced in connection with the summary judgment evidence showed that “if the windfarm is a nuisance, it is because Plaintiffs’ emotional response to the loss of their view due to the presence of numerous wind turbines substantially interferes with the use and enjoyment of their property.” Such a nuisance claim, the court explained, was not supported by Texas law.
The court acknowledged the plaintiffs’ plight, noting their claims that the windmills had permanently and significantly diminished the area’s scenic beauty and their quiet enjoyment of their property; that wind farm was abnormal and out of place in its surroundings; and that it had diminished their property values and reduced their possible uses of the property. But, the court explained that if plaintiffs could sustain a nuisance action “because a neighbor’s lawful activity substantially interferes with their view, they have, in effect, the right to zone the surrounding property.”
The court explained that “Texas case law has balanced these conflicting interests by limiting a nuisance action when the challenged activity is lawful to instances in which the activity results in some invasion of the plaintiff’s property and not by allowing recovery for emotional reaction alone.”
The court concluded that “altering this balance” was “beyond the purview of an intermediate appellate court.” The Texas Supreme Court subsequently declined review of the decision.
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