January 14, 2017
Vermont

Think it’s ugly? Not enough, court says

By GORDON DRITSCHILO, STAFF WRITER | Times Argus | January 14, 2017 | www.timesargus.com

The Vermont Supreme Court ruled Friday that buildings in Vermont are still allowed to be ugly.

“For 120 years, Vermont has recognized that the unsightliness of a thing, without more, does not render it a nuisance under the law,” the court wrote. “We uphold Vermont’s long-standing rule barring private nuisance actions based upon aesthetic disapproval alone.”

The ruling came in response to challenges to two planned solar power developments in Addison County, one by Peck Solar and one by Suncommon. Neighboring landowners sued, saying the developments would be ugly and hurt property values. Addison County civil court threw the cases out, citing an 1896 precedent barring nuisance claims based only on aesthetics.

Lawyers for the landowners sought to have the precedent overturned, arguing that the state’s nuisance law was broad enough to cover aesthetic harm and that in the years since 1896, the country had begun to value “the importance of scenic resources in today’s economy.”

“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,” the court wrote.

The justices wrote that a nuisance complaint might be in order if solar panels reflected light into a neighbor’s home, making it harder to sleep or watch television, but not if a neighbor simply doesn’t like looking at them.

“The former involves a potential interference with the use or enjoyment of property, while the latter involved emotional distress,” the decision read.

The court further observed that while factors such as noise and light produced by a development can be objectively measured, attractiveness cannot. Further, an aesthetic nuisance standard would essentially let neighbors zone the properties around them and require courts to set aesthetic standards.

“The judicial branch is ill-suited to be an arbiter of style or taste,” the decision read. “This Court has not backed away from the rule we announced in 1896, and since that time the Legislature has not acted to create a remedy for purely aesthetic concerns. We reiterate that we do not lightly overturn our precedent.”

Olivia Andersen, executive director of Renewable Energy Vermont, said the decision was good news not just for renewable energy development, but for any kind of development in the state. A decision to the contrary would have applied to more than just solar arrays, she said.

“Including farms, including breweries, any businesses,” she said. “It’s an important decision for maintaining a positive business climate in the state.”