Does The Aesthetic Impact Of Wind Turbines Constitute A Nuisance?

by Tiffany Dowell Lashmet

Wind turbines are a common sight across Texas. In fact, Texas is the largest wind energy producing state in America. In 2017, the number of megawatts produced by Texas wind farms surpassed the number of megawatts of energy produced by Texas coal plants. However, not everyone is a fan of wind farms or the look of the wind turbines dotting the skyline across the Lone Star State. This has led to an interesting question: Can claimed negative aesthetic impact of a wind project by a neighboring landowner constitute a nuisance under Texas law?Basic Texas nuisance law
A nuisance is defined as a “condition that substan tially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.” Generally, nuisance lawsuits involve invasion of a plaintiff’s property by light, sound, odor, or other foreign sub stance. For example, nui sance claims have arisen related to odors from a neighboring feedlot and noise from a propane can non shot off in a grain field to deter feral hogs.

Rankin v. FPL Energy, LLC
The leading case on this issue occurred here in Texas, decided by the Eastland Court of Appeals in 2009. In Rankin v. FPL Energy, LLC, neighbors of the Horse Hollow Wind Farm in Taylor County filed a lawsuit against the farm claiming it constitut ed a nuisance. The plain tiffs’ key claim was that

the “wind farm’s aesthetic impact” and the emotional impact of the loss of the unimpeded view for neigh boring landowners was a condition worthy of con sideration by a jury.The plaintiffs claimed that the 400-feet-tall tur bines significantly dimin ished the area’s scenic beauty and, therefore, the enjoyment of their prop erty. One plaintiff claimed that because of the view of the wind farm, they aban- doned their plan of opening a bed and breakfast.

The court rejected the plaintiffs’ argument that the aesthetic impact cre ated a nuisance. Although the court recognized the wind farm’s impact on the view and the emo tional reaction this could cause, it simply did not constitute a nuisance. Texas case law limits a nuisance action “when the challenged activity is lawful to instances in which the activity results in some invasion of the plaintiff’s property and by not allowing recovery for emotional reaction alone.” Thus, Texas courts do not provide a nuisance action for damage to aes thetic impact.

Takeaways
This case is a good reminder that the nui sance doctrine exists and is something all landown ers should know about. Generally, a person has the right to do what he or she wants on his or her own property, but that right could be limited in the event that it substan tially interferes with oth ers’ use and enjoyment of their property.

The fact that Texas

law does not recognize a nuisance claim against a wind company related to aesthetic impact does not prohibit all nuisance claims. For example, claims related to noise or light could still potentially be available to a landowner neighboring a wind farm. Courts in West Virginia and New Jersey have allowed nuisance claims related to noise from neighboring wind turbines.Indeed, in Rankin and in subsequent cases, nui sance claims have been filed against wind farms for the noise caused by the turbines when the wind is blowing, the blinking red lights emanating from the turbines, and the shadow flicker effect of the turn ing blades. Although the aesthetic claims were dis missed by the court in the Rankin case, these other claims were allowed to proceed to trial.

When negotiating a wind lease (or a solar lease), a landowner may want to seek indemnity from the company in the event this type of lawsuit is filed and the landowner is named as a defendant as well. As we see addi tional wind farms being built, particularly near more urban areas, the chances of a nuisance lawsuit being filed will likely increase and a land owner could potentially be named as a defendant in this type of case.

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TIFFANY DOWELL LASHMET

is assistant professor and extension specialist with the Texas A&M AgriLife Extension. She specializes in agricultural law and blogs about legal issues related to Texas land at agrilife. org/texasaglaw.