Last Friday, the Vermont Supreme Court issued a decision in Myrick v. Peck Elec. Co. et al., 2017 VT 4, affirming the longstanding rule in Vermont, which dates back to a case in 1896, that aesthetic harm alone cannot form the basis of a private nuisance claim.
In Myrick, neighbors to property leased to two solar companies in New Haven filed suit against the solar companies, alleging that the solar arrays installed on the property constitute a private nuisance because they interfere with the aesthetics of the rural area and cause lowered property values.
The Court rejected neighbors’ argument to overturn the 120-year old rule, holding that the reasons visual impacts alone do not constitute a private nuisance are still applicable today, despite neighbors’ contention that other states are moving towards allowing visual nuisance suits. Applying a common sense approach, the Court highlighted the subjective nature of aesthetic preferences and the flood of lawsuits that would result from allowing neighbors to sue each other solely because they deem some construction unattractive, noting that “[t]he judicial branch is ill-suited to be an arbiter of style or taste.”
More specifically, the Court rejected the notion that visual interference of the solar project was either “unreasonable” or “substantial,” both of which are required to pursue a private nuisance claim. Drawing a line between actual interference with the use of one’s land, and “emotional distress” resulting from finding something visually displeasing, the Court held that “[a]n 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.” The Court was equally unpersuaded that the aesthetic impacts of a solar project could be deemed “unreasonable,” observing that “[t]he appellants find the solar panels unsightly, but other equally reasonable people may find them attractive.”
The Court also briefly addressed the idea that lowered property values alone could constitute a nuisance. Distinguishing previous case law specific to perceived chemical contamination, the Court clarified that “a decrease in property value does not mean there has been an interference with that property’s use, a requisite for a nuisance claim,” and recognized the many factors that can affect property values beyond activities on a neighbor’s land, not to mention the likely increase in “neighborly discord in the form of claims for damages” that could result from adopting such a rule.
With this pragmatic approach, the Court ultimately reaffirmed that Vermont law does not encompass private nuisance claims solely on the basis of visual aesthetic impacts.
This is the first case to be decided of three cases involving solar projects heard by the Court last October. For summaries of these cases and other recent renewable energy and environmental decisions from the Vermont Supreme Court, see our 2016 Vermont Supreme Court Review: Energy & Environmental Decisions.
