Dirty dishes, dirty laundry, and windy mills: a framework for regulation of clean energy devices.

• Author: Reed-Huff, Lavonda N.

1. INTRODUCTION II. SELECT COMMUNICATIONS AND ENERGY GOVERNMENTAL LAW AND POLICY A. The Over-the-Air Reception Devices Rule 1. OTARD Rule Provides No Private Right of Action 2. Preemptory Scope Of the OTARD Rule 3. The OTARD Rule Has Been Interpreted Not To Constitute a Compensable Taking B. State Right-to-Dry Laws C. State Right-to-Farm Laws 1. Bormann v. Kossuth County Board of Supervisors 2. Gacke v. Pork Xtra, L.L.C D. State and Local Ordinances Regulating Windmills and Similar Devices E. Recent Attempts at Federal Energy Legislation III. WHEN THE WELL-INTENDED BECOMES A NUISANCE A. Public and Private Nuisance Law B. Where is the Harm? 1. Diminution of Property Value 2. Is Ugliness Actionable? 3. Physical Harm a. Physical Harm to the Person b. Physical Harm to Property IV. DOES THE OTARD RULE'S PREEMPTION OF COMMON LAW NUISANCE ACTIONS EFFECT A COMPENSABLE TAKING? A. Government-Created Nuisances B. Is There a Compensable Taking? V. A POSSIBLE REGULATORY FRAMEWORK FOR CLEAN ENERGY DEVICES VI. CONCLUSION I. INTRODUCTION

   When Congress and the Federal Communications Commission (FCC or Commission) acted in 1996 to protect the right of property owners and tenants to place small satellite dishes on private property, they hoped, among other things, to increase the availability of video services, enhance consumer choice, create competition, and contain consumer costs in the video services market. (1) Today, there are a number of parallels between the government's interests that led it to occupy a space in the regulation of satellite dish placement and the government's interests in encouraging Americans to conserve energy and incentivizing the creation of "green" energy technology. Should the federal government step in to protect the ability of property owners and tenants to install windmills, solar panels, clotheslines, and other clean energy devices, then it could logically look to its regulation of over-the-air reception devices (OTARDs) and borrow some of the most significant principles of FCC's Over-the-Air Reception Devices Rule (OTARD Rule or Rule) (2) and other similar roles. The OTARD Rule might serve as a blueprint for a federal rule protecting the right to install and use clean energy devices.

   Consumers desiring satellite service have a powerful tool in the OTARD Rule should they run up against state and local restrictions or prohibitions against the installation or use of satellite reception devices. FCC and federal courts have uniformly held that such prohibitions are preempted by federal regulation to the extent that they impair, delay, or raise the cost of receipt of satellite service. (3) Widespread demand for and presence of satellite reception devices has resulted in numerous clashes between property owners, tenants, and homeowners' associations about the rights to install or prohibit installation of satellite dishes on private property. (4) In recent years, homeowners and tenants have engaged in battles with neighborhood homeowners' associations over the installation of satellite dishes and component dish equipment on homes and condominiums in subdivisions where homeowners' associations have enacted a wide range of restrictions on the installation of satellite dishes. (5) These restrictions include, for example, outright prohibitions on installation; complex pre-approval procedures and monetary pre-installation fees; requirements that devices be concealed, painted a particular color, or placed in particular locations; as well as ongoing inspection requirements. The OTARD Rule preempts most of these types of prohibitions. (6)

   Clashes now are brewing in communities across the country over the placement of clean energy devices such as windmills, clotheslines, and solar panels. (7) One of the most contentious topics of the modern eco-revolution is the increasing presence of windmills and wind farms in rural areas. For example, one upstate New York family has nearly been torn apart by the decision of the family's patriarch to lease family farm land to a wind farm operation despite the noise and other headaches that the wind turbines have caused their neighbors--some of whom are members of the family. (8) Others in the Lowville, New York community applaud the positive economic impact that the wind farm has had on the community, including generating jobs and tax revenue, as well as the overall benefit to the environment. (9) Similar disputes have occurred in less rural residential areas. (10) Similarly, the placement of solar panels has also given rise to notable litigation. (11) In California, neighbors have been embroiled in litigation regarding the placement and overgrowth of redwood trees that block sunlight to solar panels installed on the neighboring property. (12)

   Local governments, which are often caught in the middle, must balance a number of competing interests and concerns in this so-called ecorevolution. One interest that local governments must consider IS the interests of people who have adopted what has been labeled an "eco-chic" lifestyle, people who simply seek to reduce monthly energy costs, and people who want to protect the environment. (13) On the other hand, local governments must also consider interests of neighboring property owners and homeowners' associations who are concerned about a panoply of nuisances, such as noise, the threat of personal physical harm, harm to property, harm to the aesthetic appeal of neighborhoods, harm to panoramic views, and the diminution of property values. Of course, many of these seemingly competing parties have some overlapping interests which are similar to those involved in disputes regarding placement of satellite dishes. The overwhelming success of the OTARD Rule in resolving disputes over the placement and use of satellite dishes suggests that a regulation similar to the OTARD Rule could present a workable resolution to the problems posed by the placement and use of clean energy devices as well.

   Governmental balancing of competing interests is happening largely in a piecemeal fashion--from town to town--resulting in a lack of uniformity of laws across the country. With energy issues occupying such a prominent place in current federal government policy, it is natural to ask whether the United States needs a nationally coordinated effort to protect the rights of private property owners to install and maintain windmills and similar devices on private property while preserving and protecting the rights of other property owners and those of the public at large.

   Just as the federal government took great interest in the availability and affordability of communications services, as reflected in the OTARD Rule, states and the federal government have increasingly adopted a more proactive environmental conscience in recent years. The Obama Administration has adopted an energy policy based on promoting conservation and promoting alternative and renewable sources of energy. (14) The Administration has also adopted an economic policy, a significant component of which focuses on creating green jobs, such as windmill manufacturing. (15) It remains to be seen whether the Administration's policy will include express protections of the right to install clean energy devices.

   The public's renewed interest in energy conservation and efficiency could prompt the federal government to enact legislation and regulations with certain key similarities to the Telecommunications Act of 1996 (1996 Act) (16)--which authorized FCC to enact the OTARD Rule--with a focus on encouraging and incentivizing Americans to "go green." (17) More specifically, the federal government could provide similar sweeping protections to property owners and renters who want to install energy conservation devices and apparatus on their property over the objections of homeowners' associations, landlords, and despite private covenants and state and local laws.

   Of course, there are significant differences between satellite dishes and clean energy devices, such as differences in their size, placement, and the potential to harm persons and property. These differences may also invoke different reactions on the state and local level as those governments seek to balance the interests of their constituents. Because of the potential for fields of windmills and solar panels in suburbia, the relevant legal issues are much more profound in those areas. Generally, clean energy devices are significantly larger, obtrusive, noisier, and more disruptive than satellite dishes. Another difference between satellite dishes and clean energy devices is that the problems associated with excessive energy consumption are arguably more profound than the lack of access to communications and video services. One could argue that the public interests involved in energy conservation are more compelling than the public interests in the communications arena. However, while many might subscribe in theory to the value of widespread communications connectedness and energy conservation, the time honored mindset of "not-in-my-backyard" often stifles well-intended public policy when these policies are actually implemented.

   On the other hand, there are several similarities and parallels between satellite dishes and clean energy devices, such as their need for particular location, directional orientation, and their vulnerability to natural elements such as sunlight and wind. Should the federal government choose to protect the right to install clean energy devices, then pursuing legislation similar to the 1996 Act and the OTARD Rule, with some nuanced changes as discussed herein, would be a viable option. The federal government could adopt a similar, preemptive regulatory scheme, complete with federal preemption of state and local laws, leases, contracts, and deed restrictions. The federal government could also pursue options similar to the so-called right-to-dry and right-to-farm laws, which effectively preempt private...