Posted by: Patricia Salkin | February 4, 2017

VT Supreme Court Holds Private Nuisance Law Does Not Encompass a Cause of Action for Aesthetic Harm Alone from Commercial Solar Arrays

Appellants, landowners from New Haven, appealed 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. The landowners argued that the solar arrays constituted a private nuisance because they negatively affected the surrounding area’s rural aesthetic, causing properties in their vicinity to lose value.

The court found that 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. Instead, the court determined that a “substantial interference” in a nuisance claim 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.” Furthermore, unlike traditional bases for nuisance claims such as noise, light, vibration, odor, the propriety of one neighbor’s aesthetic preferences cannot be quantified because those preferences are inherently subjective.
The landowners’ second argument was that they should be entitled to recover because the solar panels allegedly caused their property value to fall. Here, however, landowners conceded at oral argument that they were not pursuing a claim that diminution in value in itself was sufficient to constitute a nuisance, but rather that the diminution in value should be considered only as a measure of damages for a nuisance. Accordingly, the court held that the trial court did not err as a matter of law when it granted the solar companies’ motions for summary judgment.
Myrick v. Peck Electric Company, 2017 WL 129041 (VT 1/13/2017)


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