Texas court rejects aesthetic nuisance wind turbine challenge

Texas’ 11th Court of Appeals recently upheld a lower court ruling that there can be no successful nuisance claim against a wind farm based on an aesthetic complaint or, in other words, that the thing is wicked ugly. In the law, a “nuisance” generally speaking is a substantial, unreasonable interference with another’s enjoyment or use of his or her own property.

Multiple neighbors of the Horse Hollow Wind Energy Center near Abilene had filed suit in 2005 because, among other things and as the court noted, that the now reportedly 60,000-acre 400-turbine wind farm “had permanently and significantly diminished the area’s scenic beauty and, with it the enjoyment of their property.”

The court noted  that the plaintiff’s’ evidence

makes clear that if the wind farm is a nuisance, it is because Plaintiffs’ emotional response to the loss of their view due to the presence of numerous wind turbines substantially interferes with the use and enjoyment of their property. The question, then, is whether Plaintiffs’ emotional response is sufficient to establish a cause of action.

The court concluded that under Texas law, it did not, notwithstanding the fact that one plaintiff had characterized the wind farm neighboring her property as “the death of hope.” The defendant, FPL Energy, was  using its property lawfully, and Texas caselaw “recognizes few restrictions on the lawful use of property.” The court noted, however, that it was not intending to minimize the impact of the wind farm on the plaintiffs simply because the impact was emotive (and not, for instance, physically invasive) .

The court also affirmed the lower court’s decisions limiting the plaintiffs’ ability to proffer evidence relating to sound levels. Whether that evidence, had it been allowed at trial, would have affected the outcome is anyone’s guess.

The court’s decision in Rankin v. FPL Energy (No. 11-07-00074-CV) is here. Here for a related story by the Associated Press. And here for what the author suspects, but cannot confirm, is the geographic location of Horse Hollow.

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