Eastland Court rejects argument that wind farms are so ugly as to constitute a nuisance to nearby landowners; says recognizing aesthetic damages is not for an intermediate court to decide

Rankin v. FPL Energy, LLC (Tex. App.–Eastland Aug. 21, 2008)

“We do not minimize the impact of FPL’s 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 great pleasure 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. Texas caselaw recognizes few restrictions on the lawful use of property. If Plaintiffs have the right to bring a nuisance action because a neighbor’s lawful activity substantially interferes with their view, they have, in effect, the right to zone the surrounding property.”

If municipalities can zone property for aesthetic reasons, it’s not entirely clear to me why common-law nuisance claims couldn’t accomplish the same goal. But I understand the reluctance of courts to let purely aesthetic concerns rule the day, if that would lead to inconsistent or unpredictable results in different cases.

I saw some similar windmills up close on a recent trip. They are much bigger than I had imagined. I can see why T. Boone Pickens doesn’t want them on his own lawn. (( “Q: And you’ll do all this on your beautiful 68,000-acre ranch?

A: I’m not going to have the windmills on my ranch. They’re ugly. The hub of each turbine is up 280 feet, and then you have a 120-foot radius on the blade. It’s the size of a 40-story building.

Q: So whose land are they going on?

A: My neighbors, mainly south of my ranch. …” ))

Here, the trial court instructed the jury that it could not weigh aesthetic damages because that was not a component of Texas nuisance law. It also granted partial summary judgment to FPL on that aspect of the plaintiffs’ claims.

The court of appeals affirmed, holding that the trial court’s instruction was proper.

Aesthetical impact either is or is not a substantial interference with the use and enjoyment of land. If a jury can consider aesthetics as a condition, then it can find nuisance because of aesthetics. Because Texas law does not provide a nuisance action for aesthetical impact, the trial court did not err by granting FPL’s motion for partial summary judgment and by instructing the jury to exclude from its consideration the aesthetical impact of the wind farm.

And the Abilene paper reports that this will soon be on the Supreme Court’s docket. See “Wind farm opponents plan appeal” (Abilene Reporter-News)

Other coverage: “Court sides with wind farm in suit by landowners” (Austin American Statesman)

Potentially broader personal liability for corporate officers for state taxes

This case illustrates an appellate dilemma that comes up more often than you’d expect.

The Texas State and Local Tax Law Blog, run by Alan Sherman, has a post about a recent Third Court case that could affect the personal liability of business executives for state taxes.

The question is whether an individual is a “responsible person” such that they can personally be required to pay the taxes, piercing through whatever corporate shield would normally exist. The case is State of Texas v. Crawford, No. 03-07-00622-CV (Tex. App.—Austin Aug. 21, 2008).

In short, the Third Court ruled for the corporate officers, but did so while restating the standard in terms that were (Sherman suggests) broader than previous law. Now, instead of having to have “actual knowledge,” it would be enough for the officers to act in “reckless disregard.”

Here’s the rub: Who would bring this appeal to the Texas Supreme Court? If the State does, then the State risks upsetting a potentially helpful new standard in the Third Court, which has exclusive jurisdiction over these claims. ((The State may well file a petition; there may be other aspects of this new standard with which the State disagrees, such as the Third Court’s allocation of the burden of proof about recklessness to the State.))

On the other hand, the corporate officers in this particular case have no personal incentive to appeal because they are off the hook. Unless there is some other party behind the scenes that is a repeat litigant (such as a D&O insurer), then it seems unlikely that the idea would even be entertained. (( And even if the corporate officers were the kinds of repeat litigants who cared more about the state of the law than the outcome of any particular case, it’s not entirely clear that they could file a petition that was just about the reasoning of the opinion. After all, the judgment of the Third Court already favors them; they would just be asking the Texas Supreme Court to issue the same judgment with a different opinion attached. (Texas Rule of Appellate Procedure 53 also talks in terms of a petition being filed by “[a] party who seeks to alter the court of appeals’ judgment must file a petition for review.”) ))

This dilemma comes up more often than you might expect. When I was at the State, we would sometimes find ourselves on the other side of it — the party winning a judgment below but disagreeing with the legal standard applied in the opinion. Unless the losing party takes the case up, you can be stuck with bad law until there is another vehicle to raise the same question.