Land & Renewables Connection

Land Use and Zoning Legal Issues

Solar energy generating facilities offer new ways for property owners to monetize their land. But what about the impacts of solar farms on adjoining property owners? Can a solar energy generating facility be a nuisance? A recent federal court decision out of Texas examined this question.

In Hicks v. Andrews, Civil Action No. 5:23cv81 (E.D.Tex 2024, R&R February 28, 2024), property owners sued a neighboring landowner and prospective solar developers to stop a potential solar energy development on adjoining property. One of the Hicks plaintiffs owned 1,000 acres, surrounded on two sides by a property owner who was allegedly planning to sell its acreage for a solar energy development with 620,000 solar panels, a battery energy storage system (“BESS”), and associated electric lines. The other plaintiff lived several hundred yards from the potential BESS facility.

The plaintiffs claimed that this adjacent solar development would negatively impact their properties, and filed suit. According to the plaintiffs, the BESS posed a fire and health hazard with its lithium batteries. Rainfall would allegedly run-off the solar panels and leach toxic chemicals into the groundwater. Herbicides that would have to be used to control weeds in the solar farm would cause damage. All of that, allegedly, would detrimentally impact the plaintiffs’ property.

The Hicks plaintiffs asserted claims for private nuisance. More specifically, they claimed that the solar development constituted an intentional nuisance, negligent nuisance, strict liability nuisance, and anticipatory nuisance. They also asserted a violation of the Texas Water Code. Monetary damages in excess of $10,000,000 were sought, as well as an injunction preventing development of the adjoining property for a solar farm or BESS unless the defendants could show that it would not be a nuisance or violate the water code.

The defendants moved the United States District Court for the Eastern District of Texas to dismiss the complaint. According to the defendants, the complaint was too vague and did not assert viable claims for relief. The defendants contended that the complaint asserted generalized critiques of the solar industry and political agendas, versus specific facts and actionable legal claims of damages that had been sustained.

Reviewing the motions to dismiss, a federal magistrate judge recognized that the complaint contained general critiques of the solar energy industry, but found that the complaint also asserted facts associated with the land and project at the center of the lawsuit. The Magistrate Judge also found that nuisance claims could implicate both monetary and injunctive relief. But, the problem was that the plaintiffs’ asserted damages were future-looking.

The plaintiffs asserted that they would be damaged by the proposed project if it was completed. These future damage claims were problematic under the plaintiffs’ nuisance and water code claims. The defendants argued that viable nuisance claims generally needed to involve injury that has already occurred. Since the solar energy facility had not been built, no batteries had caught fire, no water run-off occurred and no toxins washed off new solar arrays into the groundwater, the defendants contended that the plaintiffs’ claims were hypothetical and speculative. The Magistrate Judge agreed, observing that in their briefing, the “Plaintiffs do not specifically address the private nuisance claims of intentional nuisance, negligent nuisance, or strict liability nuisance. [...] Presumably this is because private nuisance claims typically arise after the injury has occurred.”  Hicks at p. 10.  Observing that elements of nuisance claims under Texas law were stated in the past tense, the Magistrate Judge found that the plaintiffs failed to state claims for intentional nuisance, negligent nuisance, and strict liability nuisance because nothing had occurred.

The Magistrate Judge turned to the future-looking, anticipatory nuisance claim. Under Texas common law, an injunction may be available to stop a “legalized” nuisance, where a use of property could result in a nuisance to an individual after it is constructed. On this front, the Magistrate Judge in Hicks reasoned that the plaintiffs could possibly amend their complaint to “...fit within the equivalent of the ‘legalized’ category of cases which can be anticipatory enjoined.” Hicks at p. 11. However, the court also observed that, in Texas, “a court of equity is empowered to interfere by injunction to prevent a threatened injury for which there is no adequate remedy at law, or where a nuisance is imminent.” Id. The Magistrate Judge in Hicks stated that the plaintiffs did not plead an imminence of threatened injury, nor could the lawful conduct of a business constitute a nuisance per se.

Based on this, the Magistrate Judge determined that the plaintiffs failed to plead a plausible nuisance claim that could entitle the plaintiffs to injunctive relief if they prevailed. The Magistrate Judge found that the claim for violating the Texas Water Code rose and fell on the anticipatory nuisance claim. Ultimately, the Magistrate Judge recommended that the plaintiffs be permitted to amend their complaint. No objections to that recommendation were filed and the District Court entered an order dismissing the plaintiffs’ complaint but allowing them to file an amended complaint. Hicks, (Mar. 20, 2024).

The Hicks decision involved Texas law and was decided by a federal court in Texas. So, does that decision have any impact on, or relevance to, the development of solar energy facilities in Pennsylvania? It may. For instance, a recent news story highlighted residents’ concerns about impacts from a potential solar development in Fayette County, Pennsylvania. The short answer is that the Hicks decision does not control any Pennsylvania courts, and it applied Texas law, versus Pennsylvania law. But, the analysis and reasoning of the Hicks court may be transferable to Pennsylvania.

The claims in Hicks centered around the legal concept of a nuisance. In Pennsylvania, “[i]n evaluating a private nuisance claim, the key question is whether one person has impaired another person's private right of use or enjoyment of their land.” Carnahan v. Slippery Rock Township Zoning Hearing Board, 305 A.3d 211, 224 (Pa. Commw. Ct. 2023). One is liable for a “. . . private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either:

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

Id. (quoting Restatement (Second) of Torts § 822 (Am. Law Inst. 1979)). These concepts are similar to those
employed in Hicks under Texas law.

Likewise, Pennsylvania recognizes the concept of an anticipatory nuisance, like the claim that could have potentially moved forward in Hicks if the plaintiffs successfully re-pleaded their complaint. “Where [relief] is sought [regarding] an anticipated nuisance, it must be shown (a) that the proposed construction or the use to be made of property will be a nuisance per se; (b) or that, while it may not amount to a nuisance per se, under the circumstances of the case a nuisance must necessarily result from the contemplated act or thing. The injury must be actually threatened, not merely anticipated; it must be practically certain, not merely probable.” Carnahan at 224-25; See also, Borough of McKees Rocks v. Allegheny County Sanitary Authority, No. 2:21-CV-530-NR (W.D. Pa. May 6, 2022) (“[A]n injunction to enjoin a threatened or anticipated nuisance not yet existing is appropriate only if the plaintiff shows either: (1) the anticipated use of the property will be a nuisance per se, or (2) it is “practically certain” that a “nuisance must necessarily result” in fact”).

A nuisance “per se” exists “‘when [the business or act] is generally known to be injurious to health and to cause legal damage to property in certain localities and surroundings, regardless of how it may be carried on.’ That is, a nuisance per se arises when the business or act has “unavoidable, inherent characteristics” that injure the public, no matter how the business or act is conducted. McKees Rocks at p. 7 (quoting Pennsylvania Company for Insurances On Lives & Granting Annuities v. Sun Co., 138 A. 909, 911 (Pa. 1927)). The McKees Rocks court further wrote that, under Pennsylvania law, “[a]s to the second scenario, the plaintiff must show that the business or act ‘is conducted in such way as to become injurious. The injury arises from either an improper conduct of business or one that could be remedied.’ That is, a nuisance in fact arises when the business or act is not inherently injurious, but rather is conducted as to necessarily become a nuisance. And the ‘injury must be actually threatened, not merely anticipated; it must be practically certain, not merely probable.’” McKees Rocks at p. 7 (quoting Pennsylvania Company for Insurances On Lives & Granting Annuities at 911; City of Erie v. Gulf Oil Corp., 150 A.2d 351, 353 (Pa. 1959)).

In the context of an anticipatory nuisance, the imminence of the alleged harm is a critical inquiry. For instance, in Carnahan, residents challenged a rezoning of land for an asphalt plant based on the theory that it would create a nuisance. The Pennsylvania Commonwealth Court disagreed, writing that “[e]ven if a private nuisance eventually comes into existence, it would not be directly attributable to the Property's rezoning; rather, any such nuisance would be spawned by the precise manner in which the Property is or will be used, not by the predicate zoning change. In other words, Remaining Appellants’ private nuisance argument is far too speculative and attenuated at this juncture to be viable.” Carnahan at 225 (internal citations omitted). But, in Borough of McKees Rocks, where a municipality was challenging the potential construction of sewer-related infrastructure, the district court allowed the borough’s anticipatory public nuisance claims to proceed, where the borough alleged that the potential construction would result in significant noise, dust, noxious fumes, increased traffic congestion and danger to pedestrians.

To answer the question posed by the title, can a solar farm be a nuisance, the answer is “potentially”, because nuisances involve lawful activities and they “. . . may be enjoined where they unreasonably interfere with another's property rights.” Liberty Place Retail Associates, L.P. v. Israelite School of Universal Practical Knowledge, 102 A.3d 501, 509 (Pa. Super. Ct. 2014). Courts applying Pennsylvania law “apply the ‘community standard’ to determine whether something constitutes a significant invasion that might give rise to a private nuisance—that is, whether ‘normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable....’”. Tiongco v. Southwestern Energy Production Company, 214 F. Supp. 3d 279, 286 (M.D. Pa. 2016) (quoting Karpiak v. Russo, 676 A.2d 270, 273 (Pa. Super. Ct. 1996)).

The fact that certain conduct, whether a solar farm or other type of land use, satisfies ordinance requirements does not necessarily relieve it of potential characterization as a private nuisance. See, Tiongco at 287. But, whether conduct is a legal nuisance requires a specific fact-based analysis concerning the land use, its location, and its impact on neighboring properties. And, while it may be possible to stop potential development under the theory that it constitutes a nuisance, that cannot be a speculative or hypothetical claim.

To avoid potential nuisance claims, and to mitigate potential impact of solar energy facilities on adjoining property owners, landowners leasing to solar operators may consider including stormwater and erosion provisions in a lease, together with appropriate and practical screening of the facility from other lands. Property owners may also protect their interests by interacting with local governments to draft zoning ordinances pertaining to solar development which require applicants to present data about things like glare.

If you have been approached with a solar lease, or solar energy development is planned in your community or on nearby property, the Renewable Energy, Zoning and Land Use Attorneys at Houston Harbaugh can assist. Contact Brendan A. O’Donnell at 412-288-2226 or odonnellba@hh-law.com