Town’s construction of a water tank 30 foot-high and 35 feet in diameter on an adjacent parcel does not constitute a private nuisance. A private nuisance is an intentional interference with a person’s right to use and enjoy his or her property that is “substantial in nature” and “unreasonable in character”. Copart Indus v. Consolidated Edison Co. of N.Y., 41 N.Y. 2d 564, 570 (1977). Court rejected plaintiff’s allegations that the water tank would substantially interfere with the use and enjoyment of the property because it will be located approximately 60 feet from the property line and clearly visible from all parts of their back yard. The Court found that “things that are merely disagreeable, which simply displeases the eye no matter how irritating or unpleasant, are not nuisances. The mere fact that the tower will be visible through their home is insufficient to raise an inference of substantial interference no matter how unsightly”. The trial court had earlier dismissed the allegations that the placement of the water tank constituted a taking and that it was a public nuisance.
Balunas v. Town of Owego, 867 N.Y.S. 2d 788 (3d Dept 10/6/2008).
The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/decisions/2008/504755.pdf
