An Unfamiliar Breeze: Nuisance and Texas Wind Law
Imagine that you spend millions of dollars and build your dream home as far away from civilization as possible. But then, one day, up pops a two hundred foot tall metal tower with one hundred foot long spinning blades attached at the top. And then another, and another. Soon, all you see in one direction is dozens and dozens of wind turbines, obstructing your once-scenic view. And your neighbor never even asked for your permission to build them! What is a landowner (and his lawyer) to do?
The question of whether you can successfully bring or defend against a nuisance claim for the construction of a wind farm is a complicated one. In recent years, courts have considered nuisance lawsuits brought on a number of different grounds—public and private nuisance, and nuisance for noise, visual impact, or aesthetic concerns—and plaintiffs have varying degrees of success. Ultimately, most courts will likely reject a nuisance claim not soundly based on a quasi-trespassory cause of action. This will almost certainly be the case in Texas, the largest wind electricity-generating state in the country. Given its preeminence in the energy industry, other states might very well follow Texas’ lead. However, a recent Nevada Supreme Court opinion suggested a sight-based nuisance claim might still have some hope of success, depending on the jurisdiction.
In Texas, nuisance law is based on the common law. The Texas Supreme Court has defined nuisance as “a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.” In Rankin v. FPL Energy, LLC, which involved a nuisance lawsuit brought against a wind farm, the Texas Eleventh Circuit Court of Appeals recognized that “[i]n practice, successful nuisance actions typically involve an invasion of a plaintiff’s property by light, sound, odor, or foreign substance.” This “invasion” element creates a heavier burden on a plaintiff than the common law definition of nuisance would seem to suggest. In Rankin, the court gave positive consideration to the defendant’s argument that “notions of beauty or unsightliness are necessarily subjective in nature and that giving someone an aesthetic veto over a neighbor’s use of his land would be a recipe for legal chaos.” After all, according to the court, “the law does not cater to men’s tastes or consult their convenience merely, but only guards and upholds their material rights, and shields them from unwarrantable invasion.” What is ugly to one man might be beautiful to another, and the court felt it was not its place to consider whether a structure on one man’s land devalued the property of another. All the court could protect against was an actual invasion by one neighbor against another, something that was missing from those facts. The court ultimately decided that “[R]ecognizing a new cause of action for aesthetical impact causing an emotional injury is beyond the purview of an intermediate appellate court.”
The recent Nevada Supreme Court opinion which postdates Rankin arrived at the opposite conclusion as to the validity of visual nuisance claims. In Sowers v. Forest Hills Subdivision, the court held that aesthetics could be considered one factor constituting a cause of action for nuisance. The decision suggests that in a post-Rankin world, there might still be some courts willing to recognize a visual nuisance claim.
The facts in Sowers were analogous to many other nuisance cases in the wind law context: the defendant proposed building a turbine on his property, his neighbors argued that the turbine would be a nuisance, and then the neighbors were granted a permanent injunction against the turbine’s construction. The Nevada Supreme Court upheld the injunction and stated that “[W]e hold that the aesthetics of a wind turbine alone are not grounds for finding a nuisance.” However, “[W]e conclude that a nuisance in fact may be found when the aesthetics are combined with other factors, such as noise, shadow flicker, and diminution in property value.” These are exactly the same elements argued by the Rankin plaintiffs in their unsuccessful nuisance claim. Clearly, the Sowers court was willing to come to the exact opposite conclusion of Rankin and allow aesthetics to constitute part of a cause of action for nuisance.
Perhaps the willingness to accept an argument based partly on aesthetics was due to the broad definition of nuisance in the state of Nevada. According to the court, “nuisance is ‘[a]nything which is injurious to health, or indecent and offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’” This is a very broad definition of the cause of action, and since there is no “invasion” element required, this may be one reason why it might be easier to succeed on a nuisance claim in Nevada than in Texas. Further, while the court was unwilling to consider a turbine to be a nuisance per se, it could be a nuisance in fact depending on the circumstances. In delineating what constituted a nuisance in fact, the court cited a Massachusetts case which held that interference with another’s use and enjoyment of their land is substantial if “normal persons living in the community would regard the [alleged nuisance] as definitively offensive, seriously annoying or intolerable.” This is a departure from the “person of ordinary sensibilities” standard cited by many courts in other nuisance cases. The “ordinary sensibilities” standard is a fiction that purports to delineate how one would and should react to what one perceives, in all times and at all places. Instead, “normal persons living in the community” seems to take into account the mores and sensibilities of other people very much like the plaintiff. Seemingly, this is a much easier standard to overcome. If other similarly situated people around you wouldn’t like something, it’s a nuisance. It doesn’t matter if you and other people in your community have abnormal sensibilities.
One final important aspect of Sowers is the case law that it (perhaps selectively) relied on in reaching its holding. In its discussion of the plaintiff’s noise complaints, the court cited Rose v. Chaikin, a New Jersey Superior Court case, and relied even more heavily on the West Virginia Supreme Court decision in Burch v. NedPower Mount Storm, LLC. The court cited Burch in its sections on the plaintiff’s property value diminution and visual nuisance claims. In a footnote the court explicitly stated that “we . . . adopt Burch v. Nedpower’s holding that aesthetics-based complaints can be one of several factors to consider. . . .” Clearly, the court felt the need to engage in research across jurisdictions to support its holding. But nowhere did the court cite Rankin. This is not surprising given that if the court wanted to recognize a visual nuisance claim, Rankin stands in direct opposition to that outcome. It is, however, somewhat surprising that the Sowers court completely ignored the highest authority on the matter in the largest wind electricity producing state. One would think that if the Sowers court was going to have to rely on case law in other jurisdictions, Texas’ position on the issue would carry greater weight than West Virginia’s or New Jersey’s. Not even the fact that Rankin was not a Texas Supreme Court case can explain that strategic decision. After all, Sowers relied on Rose, which was a New Jersey Superior Court case, not a state Supreme Court case. The Sowers court was almost certainly aware of Rankin but simply chose to ignore it. This strongly suggests that a visual nuisance claim is certainly not dead letter in jurisdictions which haven’t yet addressed the issue.
 Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004) (citation omitted).
 Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 509 (Tex. App.—Eastland 2008, pet. denied).
 Id. at 510-11.
 Id., quoting Shamburger, 198 S.W. at 1071.
 Id. at 512.
 Sowers v. Forest Hills Subdivision, 294 P.3d 427, 429 (Nev. 2013).
 Id. at 429-30.
 Id. at 431, quoting Nev. Revised Statutes 40.140(1)(a).
 Id. at 432, quoting Rattigan v. Wile, 841 N.E.2d 680, 688 (Mass. 2006).
 Id. at 431, 432-33.
 Id. at 432 n.5.