Monday, January 16, 2017

The Eye of The Beholder

Myrick v. Peck Electric Co., 2017 VT 4

By Elizabeth Kruska

Ugly does not equal nuisance. That pretty much sums up this whole case.

Some individual landowners sued a couple different solar companies over the installation of solar arrays near their homes. They argued that the solar arrays were unsightly, and as a result, drove down their property values because the arrays took away from the local rural aesthetic.

Beauty, of course, is in the eye of the beholder. The Supreme Court isn’t about to get in to what looks good or what doesn’t look good. That becomes weird judicial micromanagement of things that just aren’t any of SCOV’s business. I used to work for a law firm in White River Junction. In 2005 I got to move from one office to another office within the building. The new office needed to be painted, and I was given permission to paint it whatever color I wanted. I painted one wall my favorite color—spring green. Once it was on the wall I loved it. One of my co-workers looked at it, snorted a little bit and said, “well, at least you like it.”

I did. I loved it. And she hated it and I don’t care (I didn’t care then, either). I’d point out that this year’s Pantone color of the year is called “Greenery,” and I feel like a visionary for getting on the gorgeous-green train over a decade ago.

My co-worker wasn’t inconvenienced by my green wall. She just didn’t especially like it. Our boss didn’t care and wasn’t about to do anything about the green wall; he had better things to care about and since the green wall wasn’t hurting anyone or having an adverse impact on anyone’s ability to practice law in the building where we worked, the green wall stayed. Eventually she came around on it.

This may or may not have been an interesting story, but it is definitely illustrative. The homeowners in this case filed suit when their neighbors leased their land to solar companies for the purpose of constructing solar arrays. Their argument was that the arrays were going to be ugly, for lack of a better word, and that the ugliness would take away from the rural character of the area, and bring down property values.

The solar companies filed a motion for summary judgment, which was granted. The homeowners appeal. SCOV affirms the lower court’s granting of summary judgment.

We’ve talked about summary judgment so many times we could sing the standard. And there probably are civil practitioners who can sing the standard. Summary judgment is granted when, taken in the light most favorable to the nonmoving party, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law.

This boils down to a question of what is or is not a nuisance under Vermont law. For over 120 years, Vermont has followed the same law on public nuisance. Courts generally stick to established law but will overturn old law from time to time. This was not one of those times.

SCOV reviews questions of law de novo, or anew, and looked at just the law on nuisance. The question regarding a private nuisance is whether the offending thing actually interferes with someone else’s use and enjoyment of their own property. The offensive thing, whatever it is, must be unreasonable and substantial. This is a question of fact. But, if the complaint does not establish the offensive thing as unreasonable or substantial, it must fail as a matter of law.

By way of example, my next door neighbor is in her late 70s. She likes the Red Sox, and in the summertime watches Sox games on television. Loudly. I can hear it, and it’s kind of annoying, but it’s not something I can complain to someone about. Eventually the game gets finished and she turns off the television. If she decided, instead, that she was going to open her own landfill or dynamite blasting test field next door to my house, it would be reasonable to complain about that. That’s because it would interfere not only with the enjoyment of my property, but the stink and or the noise would probably interfere with my use of my own property.

And that was the problem in this case. The landowners were unhappy, but couldn’t show that the proposed solar arrays were really going to have an adverse impact on their use and enjoyment of their respective lands. If they could have shown that the solar panels actually did something to their land, like caused reflections or interference with electronics, then there might be a problem.

Furthermore, beauty is in the eye of the beholder. The current landowners might not like the looks of the solar arrays, but there may be people who sort of dig them, and who might specifically enjoy living near an array. This is speculative. The landowners argued that their property values could go down as a result of this nuisance. But, they probably wouldn’t be sad if their values actually went up as a result of the solar array. In any case, the homeowners conceded at oral argument that diminution in value was not, in and of itself, a nuisance. If you concede, it’s binding, so let’s move on.

Lastly, the homeowners argue that another case where some homeowners sued due to diminution in value from a nuisance should apply here. SCOV disagrees. In that particular case, there was an issue with water pollution having a negative effect on property values. SCOV isn’t about to conclude that something that may or may not be unsightly (depending who you ask) rises to the same level as water pollution, and finds the argument unavailing.

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