INTRODUCTION
In an Opinion issued on December 12, 2024, Texas’ 11th Court of Appeals out of Eastland, Tx. upheld the trial court’s dismissal of landowners’ claims that the visual appearance of a neighboring windfarm project constituted a nuisance.
According to the Plaintiffs, they were entitled to an injunction and damages because the wind turbine project:
- will be a “daytime visible nuisance” because the turbines are painted white, stand over 500 feet high, and will produce “flickering shadows” as the blades pass through the sun’s rays;
- will be a “nighttime visual nuisance” caused by the Federal Aviation Administration-mandated flashing red lights;
- will result in “constant audible nuisance” from the turbines’ blades and internal mechanical equipment;
- will result in “constant tactile/vibrating nuisance” caused by low-frequency noise and vibration; and
- will create a “nuisance effecting and destroying wildlife” by killing bats and migratory birds and displacing wild game for hunting.
After consideration of the specific claims and type of injuries that Plaintiffs alleged, the Court of Appeals reversed the trial court’s dismissal of the Plaintiffs’ intentional nuisance and negligent nuisance claims (items 2, 3 and 4 above) that inure from pecuniary damages for auditory, tactile, and wildlife nuisances but AFFIRMED dismissal of the visual nuisance and “public nuisance” claims (items 1 and 2 above).
In disallowing the Plaintiffs’ aesthetic-based nuisance claims, the Court followed established precedent. However, the Justices affirmatively recognized the potential adverse visual impact of wind turbines on neighboring landowners:
This is not the first appeal that this court has addressed with regard to the effect of windfarms on the owners of neighboring properties and whether the presence of such windfarms constitute a nuisance. “We do not minimize the impact of [a] wind farm by characterizing it as an emotional reaction. Unobstructed sunsets, panoramic landscapes, and starlit skies have inspired countless artists and authors and have brought greatpleasure to those fortunate enough to live in scenic rural settings. The loss of this view has undoubtedly impacted Plaintiffs. A landowner’s view, however, is largely defined by what his neighbors are utilizing their property for.” Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 512(Tex. App.—Eastland 2008, pet. denied).
NUISANCE OVERVIEW
The Supreme Court of Texas has stated that “[a] ‘nuisance‘ is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.” Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 600 (Tex. 2016). The term “nuisance” refers not to a cause of action or to a defendant’s conduct but to the legal injury that the conduct causes and that gives rise to the cause of action. Id. at 604.
To establish a cause of action for which the law provides a right to relief “there must not only be an injury or loss but it must have been occasioned by the commission of a legal wrong, that is, violation of legal right and a breach of legal duty.” Id. at 601.
Importantly, inuisance liability, moreover, does not depend on whether the defendant “acted or used its property illegally or unlawfully.” Id. Historically, the “goal of private-nuisance law is to identify whether and when the law will prohibit an owner’s lawful use, or require the owner to bear the legal cost of such use, because that lawful use causes a legal injury to another. Id. at 601 & n.12. Instead, whether a defendant may be held liable for causing a nuisance depends on (1) the culpability of the defendant’s conduct, (2) whether the interference is a nuisance, and (3) whether the interference caused loss or damage. Id. at 601, 604-07.
ACTIONABLE NUISANCE REQUIRES BOTH “SUBSTANTIAL INTERFERENCE” AND “UNREASONABLE EFFECTS”
Not every interference, annoyance, or activity that irritates a neighbor rises to the level of actionable nuisance. An interference, or legal injury, constitutes a nuisance only if it is “substantial” and causes “discomfort or annoyance” that is “unreasonable.” Id. at 595-99.
SUBSTANTIAL INTERFERENCE, The requirement that an interference be “‘substantial’ . . . sets a minimum threshold that confirms that the law ‘does not concern itself with trifles, or seek to remedy all of the petty annoyances and disturbances of everyday life in a civilized community even from conduct committed with knowledge that annoyance and inconvenience will result.'” The interference must be “sufficiently extreme” to constitute a nuisance.
“Whether an interference is substantial or merely a ‘trifle’ or ‘petty annoyance’ necessarily depends on the particular facts at issue, including, for example, the nature and extent of the interference, and how long the interference lasts or how often it recurs.” In determining whether the interference is substantial, a court may review whether the use impairs the adjoining property’s market value.
UNREASONABLE DISCOMFORT. The “unreasonable” component of a nuisance injury looks to the effect on the plaintiff, not the conduct of the defendant. In this regard, a Plaintiff must focus on the effects of the Defendant’s substantially interfereing conduct without a requirement to prove that the defendant’s conduct or land use was unreasonable.
Whether the effect is unreasonable is an objective test, looking to whether it would disturb or annoy a person of ordinary sensibilities, tastes, and habits. A plaintiff’s personal annoyance is not sufficient. Rather, the “discomfort or annoyance” must be objectively unreasonable, i.e., that ‘”the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.”
AESTHETIC / VISUAL BASED NUISANCES NOT RECOGNIZED IN TEXAS
Under Texas law, aesthetic-based nuisance injury claims are not permitted. Rankin, 266 S.W.3d at 513 (affirming partial summary judgment dismissing plaintiff’s aesthetic-based nuisance claims on a wind turbine project); see also Ladd v. Silver Star I Power Partners, LLC, No. 11-11-00188-CV, 2013 WL 3377290, *3 (Tex. App.-Eastland May 16, 2013, pet. denied) (mem. op.) (citing a collection of case supporting same).
As harsh as this seems, there is good reason. For starters, aesthetics are subjective because beauty is in the eye of the beholder.
For a great read about the rationale for not permitting visual /aesthetic nuisance claims, check out this well-written opinion from the Supreme Court of Vermont. Their logic, as contained in the following excerpts, applies equally in Texas:
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.
Additionally, a complaint based solely on aesthetic disapproval cannot be measured using the unreasonableness standard that underpins nuisance law. This is because unlike traditional bases for nuisance claims — noise, light, vibration, odor — which can be quantified, the propriety of one neighbor’s aesthetic preferences cannot be quantified because those preferences are inherently subjective.
Likewise, recognizing aesthetic nuisance would transform nuisance law “into a license to the courts to set neighborhood aesthetic standards.” Oliver, 76 Cal. App.4th at 525, 90 Cal.Rptr.2d 491. “In our populous society, the courts cannot be available to enjoin an activity solely because it causes some aesthetic discomfort or annoyance. Given our myriad and disparate tastes, life styles, mores, and attitudes, the availability of a judicial remedy for such complaints would cause inexorable confusion.” Green v. Castle Concrete Co., 181 Colo. 309, 509 P.2d 588, 591 (1973) (en banc). The judicial branch is ill-suited to be an arbiter of style or taste, and given the subjectivity of aesthetic preferences, they must remain the province of legislative decision-making in the form of zoning laws and, in specific instances, restrictive covenants that the courts are competent to interpret and apply.
WHY THE COURT PERMITTED DISMISSAL OF PLAINTIFFS’ DAYTIME and NIGHTTIME VISUAL NUISANCE CLAIMS RELATED TO WIND TURBINES AND AESTHETIC INJURY
1. Daytime Visible Nuisance
The Plaintiff landowners alleged that the wind turbines create a daytime visible nuisance “because of their large size and white paint, standing out from the surroundings, and creating a flicker effect as the blades pass through the sun’s rays.”
Citing the doctrine of stare decisis, the Court determined that it was bound by their its decisions that “the appearance of the windmills in contrast with the natural landscape” do not constitute a nuisance as a matter of law. The Court specifically pointed to its prior ruling in Rankin, 266 S.W.3d at 513:
“[M]atters that annoy by being disagreeable, unsightly, and undesirable are not nuisances simply because they may to some extent affect the value of property.
Plaintiffs unsuccessfully attempted to differentiate their complaints regarding the wind turbines’ flicker effect by pointing out that shadow flickers can cause “severe headaches, nausea, difficulty concentrating, and in some cases seizures.” The Court was unpersuaded and cited Supreme Court holdings that moving shadows are a uniform characteristic of all windfarms and the type of complaint that has been described as an “injury without a wrong.” See CrossTex, 505 S.W.3d at 601 (quoting State v. Brewer, 169 S.W.2d 468, 471 (1943)).
Turning to the specific facts, the Court noted that the nearest wind turbine is “several hundred yards” from Green’s property line and “less than two miles” from Wilks’s. Also, Plaintiffs alleged that the project “stretches for miles,” suggesting that only a few of the over forty turbines are near their property lines. Using this allegation, the Court inferred that “the distance of the turbines from the properties and the duration for which any “shadow flicker” effect might last, heavily suggests that Plaintiffs have asserted this claim in an effort to avoid it being cast as the type of aesthetic complaint previously rejected by Texas courts. ”
“While we understand Appellants’ arguments, we will not disturb our precedent today.”
2. Nighttime Visible Nuisance
With regard to nighttime, Plaintiffs complained that a nuisance is created by the effect of the flashing red lights affixed to the turbines as mandated by FAA regulations that “require each turbine carry one or more 2,000 Candela power L-864 aviation red flashing, strobe, or pulsed obstruction lights which must be synchronized with other nearby turbines to flash simultaneously.”
Plaintiffs alleged that these lights “rob” them of their ability to “enjoy the night sky, the moon, and the stars.” Citing Rankin, Plaintiffs argued that nuisance claims are regularly brought for situations involving light pollution. See 266 S.W.3d at 509 (collecting cases relating to bright light nuisances).
Again unpersuaded, the Court agreed with the Project owner Defendants that this complaint “is nothing more than an aesthetic-based complaint, this time occurring at night.”
The plain language of Appellants’ first amended petition makes clear that their complaint is based on an obstruction of their view of the night’s sky, which is not permitted as a nuisance injury, see id., when compared to a complaint that bright lights will shine into their homes, which is.
Again turning to the specific case facts, the Court noted that the red flashing lights are FAA mandated, which could reasonably lead to the conclusion that they are not sufficiently bright to constitute a nuisance from a “few hundred yards” to “just over a mile” or more away. . The Court also noted with particularity that neither Plaintiff resided on their respective properties, thereby rendering other cases involving nuisances from bright lights shining into an individual’s home inapposite.
SUFFICIENTLY EXTREME LIGHTS CAN CONSTITUTE A NUISANCE IN SOME CIRCUMSTANCES
This is not to say that lights can never constitute an actionable nuisance. The Court identified several cases where lights, whether alone or in concert with other interferences, were considered a nuisance. See, e.g., C.C. Carlton Indus., Ltd. v. Blanchard, 311 S.W.3d 654, 660 (Tex. App.-Austin 2010, no pet.) (finding sufficient evidence of nuisance where construction company placed several “bright lights . . . directly behind the Homeowners’ residences” and “began working `around-the-clock'”); Pascouet, 61 S.W.3d at 616 (finding sufficient evidence of nuisance where “bright lights” from radio tower immediately next to plaintiffs’ property shined directly into their backyard all night); Lamesa Coop. Gin v. Peltier, 342 S.W.2d 613, 616 (Tex. App.-Eastland 1961, writ ref’d n.r.e.) (affirming nuisance as a matter of law where cotton gin would “cause loud noises, glaring lights, dust, odors, smoke and cotton lint to come into plaintiff’s home”); Vaughn v. Drennon, No. 12-11-00395-CV, 2013 WL 3270880, at *3 (Tex. App.-Tyler June 25, 2013, no pet.) (mem. op.) (affirming nuisance where neighbor shined bright lights “98% of the time” onto plaintiffs’ property where they resided). See also, Crosstex, 505 S.W.3d at 597 n.8 (noting that bright lights may constitute a nuisance “if sufficiently extreme“) (internal quotation marks omitted).
CONCLUSION / TAKEAWAY
There can be little doubt that the unsightly appearance of a neighboring property can be annoying, cause a reaction each time it is viewed and even diminish the attractiveness or value of a claimant’s property. In some cases, the adverse damage to a landowner’s view can be tremendous. As a frequent traveler and lover of wide open spaces, I find wind turbines particularly unattractive and believe that their utility is marginal, with less benefit than has been suggested by their proponents. I believe that they should sometimes (and in some settings) be considered a nuisance. However, Texas Courts disagree.
Permitting the Court to be the arbiter of style, taste or aesthetic standards would be a slippery slope that could cause a litigation explosion. Alter all, “beauty is in the eye of the beholder.” But still, there should (and maybe someday will) be an objective standard or “bright line test” to establish when a neighbor’s view impact is so severe as to plainly constitute a substantial interference.
Until then, visual nuisance cases based upon aesthetics will have a very difficult time getting traction in Texas courts.
