Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Myrick v. Peck Electric Co.

Supreme Court of Vermont

January 13, 2017

Nancy Myrick
v.
Peck Electric Company, d/b/a Peck Solar, Encore Middlebury Solar I, LLC and Encore Redevelopment, LLC Dale Hastings and Jess Whitney
v.
Solarcommunities, Inc., d/b/a Suncommon, Sun CSA 6, LLC and Helios Solar, LLC

         On Appeal from Superior Court, Addison Unit, Civil Division, Helen M. Toor, J.

          Peter 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.

          Joslyn 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.

          EATON, J.

         ¶ 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 property").

         ¶ 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 natural beauty).

         ¶ 8. This understanding of nuisance law-as requiring more than aesthetic disapproval-has been settled law in Vermont since this Court's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.