By: Kevin J. Parker
Traditional bases for private nuisance claims include circumstances where noise, light, vibration, or odor emanating from a neighboring property harm the value of your property. Such bases can be objectively verified and quantified. Courts in various states depart, however, on the issue of whether pure unsightliness of a neighboring property, which diminishes the value of your property, supports a cognizable damages claim against the neighboring property owner under the law of nuisance.
As explained by the Vermont Supreme Court in the recent case of Myrick v. Peck Electric Co., 2017 WL 129041 (January 13, 2017), state laws vary on the viability of a claim for aesthetic nuisance. In that case, the question was whether the plaintiff homeowners had a cause of action for private nuisance against solar energy companies who leased property from their neighbors for the purpose of constructing commercial solar arrays. According to the plaintiff landowners, 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 determined that there was no such cause of action under Vermont law. In determining that Vermont law would not support such a cause of action, the Court explained that the judicial branch is ill-suited to be an arbiter of style or taste, and that the subjectivity of aesthetic preferences required that such matters remain the province of legislative decision-making in the form of zoning laws, or restrictive covenants, matters that the courts are competent to interpret and apply.
In explaining its rationale, the Court outlined some differences among the various states. The Court noted that some states recognize aesthetic nuisance as a stand-alone claim, while others recognize aesthetic nuisance only when the complained-of harm includes an element of traditional nuisance, such as noise, odor, light disruption, or physical invasion. The Court also noted a universal exception in the great majority of jurisdictions – where a defendant has acted solely out of malice or spite, nuisance liability attaches because such conduct is indefensible on social utility grounds.