Construction of a 130-foot-tall cellular telephone transmission tower does not constitute inverse condemnation of a neighboring property from which residents can see the tower, the Third District Court of Appeal has ruled.
In a case from Butte County, the court also ruled that the tower did not constitute a nuisance because it did not harm neighbors' use of their property.
"[W]hile we have sympathy for plaintiffs' plight, not all plights give rise to legal rights," Justice Daniel Kolkey wrote for the unanimous three-judge panel. "Since a landowner has no natural right to an unobstructed view, the size and shape of an otherwise lawful structure on one side of a boundary cannot be deemed either to damage (for purposes of inverse condemnation) or to interfere with the enjoyment (for purposes of nuisance) of that which is on the other side of the boundary."
In about 1990, John and Joyce Permann leased a portion of their 2.5-acre property near Oroville to allow construction of a 110-foot transmission tower. The tower and a cargo container for a service module were placed on the site and surrounded with a chain link fence. In 1994, Cellular One sought a permit from Butte County to upgrade the facilities. County planners approved the project, which involved a new tower 20 feet taller than the existing one, a small concrete outbuilding and a new fence. The tower is 41 feet from the property line shared by the Permanns and their neighbors, Melvin and Brigitte Oliver. The corner of the outbuilding is 13 feet from the property line, and the fence is within seven feet.
The Olivers filed a lawsuit against Butte County, the Permanns and three cellular telephone companies seeking damages and an order rescinding the use permit for the new tower. The Olivers alleged nine causes of action, including inverse condemnation, nuisance, fraud/intentional misrepresentation, and fraud/negligent misrepresentation. Butte County Superior Court Judge Roger Gilbert issued a summary judgement for the defendants.
On appeal, the Olivers argued that the design, maintenance and operation of the tower decreased their property value, so they were entitled to damages based on inverse condemnation. But the appellate court rejected this argument for several reasons.
First, the court said loss of property value in and of itself does not establish inverse condemnation. The California Constitution, article I, §19, speaks to compensation when private property is taken or damaged for public use. In this case, no public entity took or damaged the Olivers' property, the court concluded.
Second, because the Permanns are private individuals without the power of eminent domain, "no cause of action for inverse condemnation could be maintained against them," the court ruled.
Thirdly, the Olivers' did not prove that their property had been taken or damaged. In fact, the Olivers' testified that although they could see the tower and hear a hum when outside, their daily activities were not impacted.
"[T]he burden imposed on plaintiffs' property by the new tower and its attendant equipment does not resemble the type of perceptible intrusion, such as strong odors, overpowering noise, dust, vibration, or the loss of light, which directly and substantially burden the property so as to give rise to an inverse condemnation claim," Justice Kolkey wrote.
He continued, "There is no authority for the proposition (and the parties cite none) that plaintiffs are entitled to compensation merely because a large, unattractive structure went up next door."
The court also noted that the Olivers' never complained about the previous tower, which was only 20 feet shorter.
As for the nuisance claim, the court ruled that "the essence of a private nuisance is its interference with the use and enjoyment of land." A neighboring property must be more than visually unpleasant to qualify as a nuisance, the court said.
Melvin E. Oliver v. AT&T Wireless Services, No. C029233, 99 C.D.O.S. 9332, 1999 Daily Journal, D.A.R. 12003, filed November 29, 1999.
For Oliver: James McKenna, Peters, Rush, Habib & McKenna, (530) 342-3593.
For AT&T: Kevin Iams, Weintraub, Genshlea & Sproul, (916) 558-6025.
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