Daily Development for Thursday December 2,
1999
By:
Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu
Readers are urged to respond, comment, and
argue with the daily development or the editor's comments about it.
Thanks to Chuck Trainor of California for
the tip on this one.
NUISANCE; VISUAL NUISANCES;
TELECOMMUNICATIONS TOWERS: One hundred thirty foot telecommunications tower centered
forty one feet from property line does not, as a matter of law constitute a
nuisance, because landowners are not entitled to freedom from visual
offensiveness in California.
Oliver v. AT & T Wireless Services No. C029233 99 C.D.O.S. 9332 (Cal. App. 11/29/99)
Plaintiffs argued that the presence of the
behemoth tower next door to their two acre plot clearly reduced property
values, was an extraordinary use of the land, and therefore unreasonable and a nuisance.
There were special factors that weakened their argument most notably that there
had been a one hundred ten foot tower located on the defendant's site before,
and plaintiffs hadn't protested. The court discusses this fact to a degree. It
also discusses the fact that there is some argument that construction regulated
by the Public Utilities Commission cannot be actionable as a nuisance because
the common law is preempted. Only inverse condemnation can apply. But the real holding
of the case renders these issues moot.
The court's summary says it all:
"In
this particular case, while we have sympathy for plaintiffs' plight,
not all plights give rise to legal rights. We conclude that the
mere displeasing appearance in size and shape of a neighboring structure that
is otherwise permitted by law, the only admitted effect of which is an alleged
diminution in value of the adjacent property, cannot constitute a
nuisance. . . "
The court summarizes California and out of
state authority on the point that aesthetic values are not protected by
nuisances law. Period. The court quotes
with approval from a 1909 California case that sets a very tough standard on
the issue:
"No
case has been cited, nor are we aware of any case, which holds
that a man may be deprived of his property because his tastes
are not those of his neighbors. Esthetic considerations are a
matter of luxury and indulgence rather than a necessity, and it is
necessity alone which justifies the exercise of police power to take
private property without compensation."
Of course, since 1909, there undoubtedly
have been cases here and there that have concluded that neighbors have just
gone "over the top" in ugliness and have created visual nuisances. But
the cases are few and far between.
Comment 1: Congratulations to the California
court for stepping up to the issue and holding foursquare that visual nuisances
are not actionable, instead of weaseling out of the issue on the basis of any
one of a dozen available arguments. In
a state in which the "Hollywood" sign is an icon and graffiti is
studied as an art form, courts are wise to stay out of the aesthetic regulation
business.
Comment 2: The court invites legislative
standards as an alternative to nuisance theory. Note, however, that the Supreme
Court has looked for the presence of a "traditional nuisance" as one
of the elements for differentiating legitimate land use regulation from
regulatory takings. Let us assume that the value of a particular parcel, with
poor access in a useless location, is very low. But the value of putting a cell
tower on the parcel is very, very high. Prohibition of a cell tower might
reduce the potential value of the property by 90% or 95%. Does this move us to
a regulatory taking issue?
EMINENT DOMAIN; INVERSE CONDEMNATION: One hundred
thirty foot telecommunications tower centered forty one feet from property line
does not, as a matter of law constitute an inverse condemnation because visual
injury is not so intrusive a nonphysical impact as to amount to the equivalent
a physical entry.
Oliver v. AT & T Wireless
Services No. C029233 99 C.D.O.S. 9332
(Cal. App. 11/29/99)
The court assumed, for purposes of the
opinion, that the telecommunications companies using the tower in question had
the power of eminent domain and therefore could be sued in inverse condemnation.
Further, unlike the U.S. Constitution, California's constitution provides for
compensation for "taking or injury" of property, not just for
takings. Thus, "nuisance like" invasions of property can be
actionable as inverse condemnation. The court notes that noise from airports
and fumes from sewage plants have been found inverse condemnations in the past.
In this case however, the court, consistent
with its view that visual impacts are not actionable as a nuisance, concludes
that the degree of interference with use and enjoyment caused by an unsightly
object "looming over" one's property from next door is not the
equivalent of a physical intrusion, notwithstanding the impact on property
values, and consequently cannot be actionable as an inverse condemnation.
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and argue with the daily development or the editor's comments about it.
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