NEW HAVEN — Just because you think something your neighbor is putting up on his land is ugly doesn’t mean you can get a Vermont court to make him take it down.
That was the consensus of the Vermont Supreme Court in a ruling last Friday in a case that involved two proposed solar arrays in New Haven.
The solar fields at issue are one on Field Days Road proposed by Peck Solar and Encore Renewable Energy and the second off Dog Team Road and proposed by Suncommon and Helios Solar. Nancy Myrick, who lived across from the Field Days Road site, and Dale Hastings and Jess Whitney, who lived in a house directly abutting the Dog Team Road project, had sued in separate cases to stop the respective developments. Addison Superior Court had combined the cases ruled in favor of the solar developers. The Supreme Court last week affirmed that ruling, citing an 1896 ruling that said differences in aesthetic sensibilities alone was not grounds for a successful lawsuit.
The landowners in this 21st century case argued that the solar arrays negatively affect the surrounding area’s rural aesthetic and thus cause the value of properties in the area to fall.
In a ruling authored by the Hon. Harold E. Eaton, Jr., associate justice, the court rejected the argument.
“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 ruling reads.
It says the landowners may suffer emotional distress, but case law only protects citizens from “annoyance and discomfort.”
“There is a difference between, on the one hand, a complaint that solar panels are casting reflections and thereby interfering with a neighbor’s ability to sleep or watch television and, on the other hand, the landowners’ complaint in this case — that the solar panels are unattractive,” Eaton wrote.
“The former involves a potential interference with the use or enjoyment of property, while the latter involves emotional distress,” and emotional distress is entitled to “limited legal protection.”
The justices also declined to take sides based on the beauty or ugliness of a property, and said that lawmakers could get involved:
“The propriety of one neighbor’s aesthetic preferences cannot be quantified because those preferences are inherently subjective … 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.”
The landowners’ lawyer, Wanda Otero-Weaver, a partner at Langrock, Sperry & Wool, was disappointed in the ruling, saying it rested on an 1896 court ruling, not on aesthetics standards of today.
The justices also did not explain how the court could cite the protection of aesthetics in earlier rulings in favor of the law that bans billboards on Vermont road, but deny aesthetics as a cause for suit when it comes to solar arrays.
“The billboard law is entirely about protecting aesthetics,” she said.
Otero-Weaver said her clients were also disappointed that the supreme court didn’t recognize the harm they suffered in the loss of property value. She made a comparison to the law that allows the state to condemn privately owned land and use it for a road or a public building.
“When the state takes private property for public good (through condemnation), even the state has to give just compensation,” Otero-Weaver said. “But private (solar) companies don’t have to” in this case.
Otero-Weaver said the Myrick, Hastings and Whitney were exploring other options to protect their property.
While the ruling may have closed off one avenue for property owners opposed to large solar arrays planted on neighboring property, this will not be the last time the high court hears a case on solar arrays.