Wind Energy's Impact on Land Value: an interview with Steven Thompson

(Originally produced for Texas Rural Land News & Review which merged with The Texana Review in March 2008)

Steven E. Thompson is an attorney-at-law and founder of Steven E. Thompson & Associates, P.C.  He's been an active advocate for landowners opposing wind energy development in certain areas of Texas.

Mr. Thompson is one of the few attorneys in Texas, if not the nation, who have been involved in litigation in regard to wind energy and wind energy rights. His insights are interesting and thoughtful.

Listen to Mr. Thompson’s comments…

Listen...

14:30 minutes

Music by Torchmatic under creative Commons License Podshow Podsafe Music Network

Download a transcript of Steven Thompson's interview HERE

 

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Technorati Tags: Texana Review,TRLNR,Texas Rural Land News & Review,Texas,Wind Energy,Energy,Ed Blackburn,Rural Texas,Rural Living,Alternative Energy

Comments

[Texas Land Sales]

It seems to me that the problem with such suits is that they could apply to any number of other situations - oil field being only one example. And that would be a hard to overcome later on,

[Property in Turkey]

Great post. I enjoyed reading thanks.

[Scott]

Appeals court upholds wind farm victory
chron.com/disp/story.mpl/ap/business/5958601.html
ABILENE, Texas — An appeals court has upheld a lower court's ruling that people can't sue over wind turbines just because they don't like how they look.

Some landowners had sued in 2005 over FPL Energy's Horse Hollow Wind Energy Center near Abilene, saying the turbines were too loud, lowered their property values and ruined their scenic views.

Before the 2006 trial, the judge wouldn't let plaintiffs argue that the towering turbines were a nuisance based on their blinking lights or how they looked. After the two-week trial in which noise levels and land values were discussed, jurors ruled in favor of FPL Energy.

In a ruling issued Thursday, the 11th Court of Appeals said the trial judge did not err because Texas law "does not provide a nuisance action for aesthetical impact." But the appeals court seemed sympathetic to landowners.

"We do not minimize the impact of FPL's wind farm by characterizing it as an emotional reaction," the judges wrote in the ruling. "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."

The judges also ruled that the lower court would have to reconsider how much the plaintiffs would pay FPL Energy for its court costs.

Attorney Trey Cox of Dallas, representing FPL Energy, said the company was "very pleased" with the ruling.

"We think it's the right result," he said.

Plaintiffs' attorney Steve Thompson, of Houston, did not immediately return calls or e-mails from The Associated Press seeking comment Thursday.

Horse Hollow now spans about 60,000 acres in Taylor and Nolan counties in West Texas and has more than 400 turbines, according to Juno Beach, Fla.-based FPL Energy.

[Scott]

From Texas A&M’s Real Estate Center’s news letter Law Letter Fall 1995 “Obstruction of View, Light, and Air” recenter.tamu.edu/pdf/1092.pdf
I’ll quote the parts I believe are relevant to wind turbines:
“Boundary disputes between adjoining neighbors are inevitable…Basically, does a landowner have the unrestricted right to a particular view either to or from the property, the unrestricted right to receive sunlight on the property or the unrestricted right to receive a breeze across the property?
Most case law examining the issue involves spite fences and billboards. Spite fences are solid structures built purely to spite a neighbor and not necessarily to benefit the owner. One general rule, however, recited repeatedly by the Texas courts, is useful. An owner of real estate may, in the absence of building restrictions [zoning codes] or other regulations, erect a building, wall, fence or other structure [including turbines] on the property, even if it obstructs a neighbor’s vision, light or air and even if it depreciates the neighbor’s land. Motives for erecting the structures [in the case turbines] are irrelevant. However, owners can not use their property in a way that constitutes a nuisance…Exactly what is a nuisance, and how is it applied to these cases? A nuisance is a condition brought about by a property use so unusual that it causes injury or inconvenience to another’s use of [his/her] property. Sometimes it is defined as a condition that substantially interferes with another’s use and enjoyment of land….The trial court and appellate court denied the injunction, citing the rule about unrestricted, lawful use of property. On the issue of damages, the court concluded, “It is a rule of long standing that in the absence of nuisance, or negligence, or physical harm there is ordinarily no liability for diminution in adjoining land values resulting from the lawful use of one’s own land….” The Scharlock court denied the plaintiff’s petition for an injunction, stating, “Under the rule recognized in this state, a building or structure cannot be complained of as a nuisance merely because it obstructs the view of neighboring property.” Another noteworthy case involves walls (Boys Town v. Garrett, 283 S.W. 2d 416)…The court denied the plaintiffs’ request by reciting from Klein v. Gehrung, 25 Tex. Supp. 232: “Nothing, as has been said, can be more certain than that every one has a right to use his own as he pleases, provided he does not thereby injure others; and it is inconceivable that, upon any principle, one can acquire a right or interest in that which is another’s merely by the manner in which he uses his own.” End quotes
Admittedly I’m not an attorney, but I read that to mean a nuisance suit based upon aesthetics cannot be grounds for a lawsuit even if the structure(s) devalued neighboring properties. In Dale Rankin vs. FPL Energy the plaintiffs’ attorney, Steven Thompson, file this law suit (see next link to photocopy of suit) largely based around aesthetics: windaction.org/?module=uploads&func=download&fileId=837. And Abilene Reporternews reported: “The plaintiffs in the suit against FPL Energy, an affiliate of Florida Power & Light, are mostly individuals and families who live on the land they claim has been marred by the installation of wind turbines nearby. Noise created by the wind turbines was the crucial issue in the lawsuit, after 42nd District Judge John Weeks ruled that Texas law did not provide grounds for a claim based on visual aesthetics.” reporternews.com/news/2006/Dec/21/lawyer-ponders-next-step-in-anti-wind-turbine/ In the follow up suit the jury ruled the noise created wasn’t enough to constitute a nuisance.
It seems to me that the problem with such suits is that they could apply to any number of other situations - oil field being only one example. So using oilfield as an example: Texas has a two tiered ownership of private property. The mineral is the dominate estate: http://www.rrc.state.tx.us/about/SurfaceOwnerInfo.pdf. If, for example, a city dweller bought a surface estate for its aesthetic appeal and recreational purposes he could not stop the mineral estate owner from using the surface for oil exploration. Nor could he argue that the drilling and completion of an oilfield devalued his property’s perceived aesthetic monetary value. He bought the surface with the foreknowledge his surface was subordinate to the mineral estate.
If the surface estate owner couldn’t stop a drilling operation from obstructing the views of his on surface of what chance would he have acquiring an injunction against drilling operations on neighboring estates to which he owns no title rights? None. And since rural property is unrestricted, the same argument holds true for neighboring surface estates wanting to build any structure it so chooses. Any structure could be a house, shop, subdivision, feedlot, windmill...anything that obstructs the this surface owner’s view to another’s scenery.
I sat in on a public forum against the Cooke county wind farm where a surface owner argued that he paid a premium above his property’s ag value so that he could have the scenic views. And now with even the talk of a wind farm visible from his property if he wanted to resale he wouldn’t be able to recoup investment premium. The problem with his argument is that in paying his seller a premium for the scenic views, of neighboring properties, that does not encumber the neighbors to his personal desires. If it did then those neighbors should have gotten their share of that premium - Klein v. Gehrung, 25 Tex. Supp. 232: “…it is inconceivable that, upon any principle, one can acquire a right or interest in that which is another’s merely by the manner in which he uses his own.”
nortexwind.org/News.htm “At the meeting on Saturday, January 20, 2007, attorney Steve Thompson discussed the results of the Abilene lawsuit, where the jury at one point was hung, six to six, before ultimately deciding for FPL Energy and against the plaintiffs (see Abilene news story below). He also announced that the court had set a trial date of October 2007 for the Cooke County suit seeking an injunction against FPL's proposed Wolf Ridge project. FPL indicated to the court that they did not intend to break ground until 2008. Costs of a suit appear to be in the $250,000 range.”