Appeal from Superior Court, Addison Unit, Civil Division,
Helen M. Toor, J.
F. Langrock and Wanda Otero-Weaver of Langrock Sperry &
Wool, LLP, Middlebury, for Plaintiffs-Appellants.
Ritchie E. Berger and Justin B. Barnard of Dinse, Knapp &
McAndrew, P.C., Burlington, for Defendants-Appellees.
S. Wilschek of Primmer Piper Eggleston Cramer, PC,
Montpelier, and Kathryn E. Taylor, Burlington, for Amicus
Curiae Lake Champlain Regional Chamber of Commerce.
PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and
Bent, Supr. J., Specially Assigned.
1. For 120 years, Vermont has recognized that the
unsightliness of a thing, without more, does not render it a
nuisance under the law. See Woodstock Burying Ground
Ass'n v. Hager, 68 Vt. 488, 35 A. 431 (1896). These
consolidated cases require us to revisit whether Vermont law
recognizes a cause of action for private nuisance based
solely on aesthetic considerations. Appellants, a group of
landowners from New Haven, appeal from the trial court's
grant of summary judgment to defendants, two solar energy
companies. The landowners filed suit after their neighbors
leased property to the solar companies for the purpose of
constructing commercial solar arrays. According to the
landowners, the solar arrays constitute a private nuisance
because they have negatively affected the surrounding
area's rural aesthetic, causing properties in their
vicinity to lose value. The trial court consolidated the
cases and, noting that this Court's precedent in
Hager bars nuisance actions based purely on
aesthetics, granted summary judgment to the solar companies.
We uphold Vermont's long-standing rule barring private
nuisance actions based upon aesthetic disapproval alone.
Accordingly, we affirm.
2. We review a trial court's decision to grant summary
judgment under a de novo standard of review. Deveneau v.
Wielt, 2016 VT 21, ¶ 7, ___Vt.___, 144 A.3d 324.
Summary judgment is appropriate when there are no disputed
material facts and the moving party is entitled to judgment
as a matter of law. Id. There are no disputed
material facts here. The sole question on appeal is whether
Vermont law recognizes a private nuisance cause of action for
alleged interference with property resting solely upon
aesthetic considerations. Landowners argue the superior court
erred in granting summary judgment for two reasons.
3. Landowners' primary argument is that "[t]he
ordinary comfort of human existence, as conceived in
today's society, requires application of well-established
nuisance law to claims based on aesthetics." According
to landowners, Vermont's existing private nuisance law is
broad enough to apply to aesthetic harm, and landowners argue
that our only precedent to address this question,
Hager, is "no longer good law" because it
was decided in 1896 and society has since come to recognize
"the importance of scenic resources in today's
economy." Citing Coty v. Ramsey Assocs., Inc.,
landowners argue that this Court "foreshadowed the
application of private nuisance law to claims based solely on
aesthetics" and invite us to join what we described in
1988 as "a trend" in other states towards
acknowledging such aesthetic nuisance claims. 149 Vt. 451,
458, 546 A.2d 196, 202 (1988). Additionally, landowners argue
that aesthetic "injury to the sensibilities and ordinary
comfort" of the average person is cognizable as nuisance
and compensable by reference to diminution in property value.
We address each argument in turn.
4. "The law of private nuisance springs from the general
principle that it is the duty of every person to make a
reasonable use of his own property so as to occasion no
unnecessary damage or annoyance to his neighbor."
Pestey v. Cushman, 788 A.2d 496, 502 (Conn. 2002)
(quotation omitted). In Vermont, a private nuisance is
defined as an "interference with the use and enjoyment
of another's property" that is both
"unreasonable and substantial." Coty, 149
Vt. at 457, 546 A.2d at 201. Whether a particular
interference is unreasonable is a question for the
factfinder, see Post & Beam Equities Grp., LLC v.
Sunne Vill. Dev. Prop. Owners Ass'n, 2015 VT 60,
¶ 24, 199 Vt. 313, 124 A.3d 454, and "[t]he
standard for determining whether a particular type of
interference is substantial is that of 'definite
offensiveness, inconvenience or annoyance to the normal
person in the community.' " Coty, 149 Vt.
at 457, 546 A.2d at 201 (quoting W. Prosser, Law of Torts
§ 87, at 578 (4th ed. 1971)). A claim for nuisance that
cannot establish that a complained-of interference is either
unreasonable or substantial must fail as a matter of law.
Compare Post & Beam, 2015 VT 60, ¶ 25
(affirming trial court's finding that blockade was
private nuisance where blockade caused difficulties for
vehicles and generated complaints by patrons because trial
court did not err in finding "the gravity of the harm
outweigh[ed] the utility of the actor's conduct")
(quoting Restatement (Second) of Torts § 826(a) (1979)),
with Lopardo v. Fleming Cos., Inc., 97 F.3d 921,
929-30 (7th Cir. 1996) (affirming trial court's grant of
summary judgment for plaintiff on question of private
nuisance where court found defendant neighbor's use of
land was unreasonable as matter of law).
5. 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. See,
e.g., Oliver v. AT&T Wireless Servs., 76
Cal.App.4th 521, 534 (Cal.Ct.App. 1999) (holding that cell
transmission tower was not nuisance because "the essence
of a private nuisance is its interference with the
use and enjoyment of land" and
unpleasant appearance alone does not interfere); Oklejas
v. Williams, 302 S.E.2d 110, 111 (Ga.Ct.App. 1983)
(holding that unsightly wall was not nuisance, even if it
tended to devalue adjoining property, because wall did not
interfere); McCaw v. Harrison, 259 S.W.2d 457, 458
(Ky. 1953) (holding that cemetery was not nuisance
"merely because it is a constant reminder of death and
has a depressing influence on the minds of persons who
observe it"); Bansbach v. Harbin, 728 S.E.2d
533, 538 ( W.Va. 2012) (describing private nuisance as
requiring significant or material reduction in
homeowner's enjoyment of property and noting that not
every interference with enjoyment of land is actionable). 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.
6. 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 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
7. 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. See Wernke v.
Halas, 600 N.E.2d 117, 122 (Ind.Ct.App. 1992); cf.
In re Cross Pollination, 2012 VT 29, ¶ 10, 191
Vt. 631, 47 A.3d 1285 (mem.) (describing standard for
compliance under Vermont's land use and development law
as including inquiry into any adverse impact on scenic and
8. This understanding of nuisance law-as requiring more than
aesthetic disapproval-has been settled law in Vermont since
this Court's ...