Texas Court Rules in Horse Hollow Wind Farm Case
The Texas Court of Appeals handed down its decision in Rankin v. FPL Energy, LLC on August 21, 2008. Plaintiffs had brought public and private nuisance claims against FPLE's Horse Hollow Wind Farm in southwest Taylor County, Texas. The court noted that "Texas caselaw recognizes few restrictions on the lawful use of property" and ruled that, under Texas law, there is no nuisance action for "aesthetical impact." In other words, the turbines were not a nuisance just because the plaintiffs thought they looked really ugly.
Plaintiff's remaining nuisance claims were based on the noise that the turbines allegedly produced; the trial court allowed those claims to go to the jury. The jury found against the plaintiffs, and the trial court entered a take-nothing judgment. The balance of the appellate court's opinion analyzes and upholds the trial court's decision to exclude certain testimony. In theory, the plaintiffs could have prevailed on their nuisance claim if they had proven to the jury's satisfaction that noise from the turbines amounted to "the encroachment of a sensory damaging substance." They apparently failed to do so on the evidence presented.
The limitation of nuisance actions to cases involving noise, dust, bright lights, or other health risks -- as opposed to aesthetic objections -- is consistent with the laws of other states, including Washington. See Pierce v. Northeast Lake Wash. Sewer and Water Dist., 847 P.2d 932 (Wash. App. 1993) (4.3 million gallon municipal water storage tank that "loomed" in plaintiff's view was not a nuisance or a trespass or a case of inverse condemnation. Cf. Steele v. Queen City Broadcasting Co., 341 P.2d 499 (Wash. 1959) (television transmission tower built on parcel smaller than required by law constituted a nuisance, in part because it created disagreeable wind noise). We expect that future challenges to wind energy projects will focus on noise and alleged health risks.
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