Laubenstein v. Bode Tower, L.L.C.

• Decision Date: 06 December 2016
• Docket Number: Case No. 112,105
• Citation: 392 P.3d 706
• Parties: Ken LAUBENSTEIN and Billie Wallace, Plaintiffs/Appellees, v. BODE TOWER, L.L.C., Defendant/Appellant.
• Court: Oklahoma Supreme Court

392 P.3d 706

Ken LAUBENSTEIN and Billie Wallace, Plaintiffs/Appellees,

v.BODE TOWER, L.L.C., Defendant/Appellant.

Case No. 112,105

Supreme Court of Oklahoma.

Filed December 6, 2016

Rehearing Denied March 30, 2017

Thomas Marcum , BURRAGE LAW FIRM, Durant, OK, for Defendants–Appellants

D.D. Hayes , HAYES LAW OFFICE, Muskogee, OK, for Plaintiffs–Appellees

GURICH, V.C.J.

Facts & Procedural History

¶ 1 BoDe Tower is an Oklahoma limited liability company which owns a tract of land in the Gooseneck Bend area of Muskogee County. The property lies less than three miles outside of the City of Muskogee near a sharp meander in the Arkansas River. In 2009, BoDe Tower began the process of securing authorization from state and federal officials for the construction of a telecommunications tower on the tract in an effort to fill a gap in cellular coverage. Testimony indicated cellular reception was non-existent in the area. One local resident testified he had "zero" reception and was looking forward to future coverage.¹

¶ 2 BoDe hired an expert engineering firm, Monte R. Lee & Co., to assist with completing mandatory paperwork and ensuring compliance with all regulatory prerequisites.² Prior to construction of the tower, BoDe was required to obtain clearance from multiple governmental agencies, including: (1) Federal Communications Commission; (2) U.S. Fish & Wildlife Service; (3) Federal Aviation Administration; (4) U.S. Army Corps of Engineers; (5) Oklahoma Department of Agriculture; and (6) Oklahoma Historical Society. BoDe Tower fully complied with all state and federal requirements before constructing the telecommunications tower. Further, no zoning requirements or restrictive covenants prohibited assembly of the tower on BoDe's property. There is no dispute that BoDe's construction of the tower was a lawful endeavor.³

¶ 3 As required by federal law, BoDe consulted with local Native American tribes who were given an opportunity to voice concerns over the potential impact the cellular tower might have on historic or cultural sites.⁴ No objections were made. The FAA, however, conditioned its approval of the proposed siting on installation of specific warning lights designed to alert air traffic.⁵ BoDe also issued public notice of the planned development in the Muskogee Phoenix and informed nearby residents of the proposed cellular tower. Neighbors and BoDe's principal owner conducted a meeting relating to the project in February 2010.

¶ 4 On February 9, 2010, adjacent property owners Ken Laubenstein and Billie Wallace filed an action in the District Court of Muskogee County, alleging the proposed cellular tower was a public and private nuisance.⁶ Although the petition sought to enjoin construction of the tower, Plaintiffs never pursued injunctive relief. Assembly of the tower was finalized sometime in 2010.

¶ 5 A bench trial was held over five days, spanning from August, 13, 2012 to April 26, 2013. Testimony from a representative of BoDe's engineering consultant established full compliance with all state and federal regulatory requirements prior to installation of the tower. Laubenstein was the only resident plaintiff who testified at the trial.

¶ 6 The vast majority of Laubenstein's testimony centered around his efforts to build a pristine and isolated personal wildlife refuge around his home. Because he viewed the property as his private sanctuary for birds and animals, Laubenstein disliked any disruption to his solitude. He explained during trial, "I just don't like disorder around me, and I want a clean, clear—clean environment in which to live."⁷ In fact, when he first moved into his residence, Laubenstein was immediately unnerved by existing noise, light, and car emissions caused by traffic and security lighting in the area. To help eliminate these irritations, Laubenstein planted 700 trees throughout his acreage. He also built a four-foot earthen berm around the perimeter of his home in an effort to block all noise, light, and car emissions. The following exchange took place during trial:

Q. And you were bothered by the car lights coming down—car lights and sound coming down Woodland Road, and that's why you built this berm and all these plantings, to cover the noise and the light from the travel down the road?

A. Well, the plantings, I wanted privacy. You know, the fact that I put—yes, I don't want traffic noise and lights.⁸

Laubenstein removed security lighting throughout his entire property to ensure it was completely dark. He even persuaded neighbors to install glare shields on their security lighting to purge any interference with his tranquility. Despite living less than three miles from Muskogee, Laubenstein was also bothered by the reflective glow of city lights, as the illumination interfered with his astronomy hobby. He characterized the area as "semisuburban."⁹ Laubenstein testified it was his hope and intention to leave his property in an immaculate unchanged condition for future scientific study.

¶ 7 Laubenstein's nuisance claim was grounded entirely on his dissatisfaction with the tower's appearance and its federally mandated warning lights.¹⁰ For example, the heart of his claim is best summarized in the following testimony:

Well, from the place that I enjoy sitting the most, and I sit there day and night, it depicts the tower across the way, with its flashing light on top and three lights that are halfway up the tower, and it shows it reflecting in the water, and the reflection comes almost all the way across the water, right to where I am sitting.... It's about 10 or 12 feet from where I sit, constantly on and off, red and no red. And it's extremely unnatural and, frankly, it's very annoying. It's more than that, it's intrusive.¹¹

It was clear Laubenstein was particularly fastidious and acutely sensitive to any foreign stimulus on his property. Aside from aesthetic concerns, Laubenstein offered nothing to establish the cellular tower created an environment so inhospitable as to cause "substantial injury to comfort, health, or property." Kenyon v. Edmundson , 1920 OK 351 (syl. 4), 80 Okla. 3, 193 P. 739, 740 .

¶ 8 On June 28, 2013, the trial judge announced his ruling, which concluded the cellular tower was a private nuisance. He directed the tower to be removed from the property within sixty days. However, the abatement directive was stayed pending appellate review. BoDe appealed the lower court ruling and COCA affirmed the nuisance finding. In upholding the decision, COCA declined to give weight to the lawful status of the cellular tower under either 50 O.S. 2011 §§ 1 or 4 and held there was sufficient evidence to find a private nuisance in fact.

Standard of Review

¶ 9 Laubenstein requested that the trial court enjoin BoDe from constructing and operating its telecommunications tower. An action for abatement of a nuisance by permanent injunction is equitable in nature. Jackson v. Williams , 1985 OK 103, ¶ 9, 714 P.2d 1017, 1020. "In a case of equitable cognizance, a judgment will be sustained on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity." McGinnity v. Kirk , 2015 OK 73, ¶ 8, 362 P.3d 186, 190 (citation omitted). When reviewing a case at equity, this Court is not bound by the trial court's findings and will consider the whole record and weigh the evidence. Harrell v. Samson Resources Co. , 1998 OK 69, ¶ 31, 980 P.2d 99, 107 (citation omitted).

Analysis

¶ 10 We have said that a nuisance "arises from an unreasonable, unwarranted, or unlawful use" of property. Briscoe v. Harper Oil Co. , 1985 OK 43, ¶ 9, 702 P.2d 33, 36. An alleged nuisance must "substantially interfere with the ordinary comforts of human existence." Kenyon , 1920 OK 351, ¶ 6, 80 Okla. 3, 193 P. at 741 (emphasis added). Further, "a mere trifling annoyance, inconvenience, or discomfort" should not be deemed a nuisance. Id. A nuisance action may not be maintained when based on (1) lawful use of the property; (2) which affects solely the "aesthetic taste" of the aggrieved party.

Bixby v. Cravens , 1916 OK 406, ¶ 10, 57 Okla. 119, 156 P. 1184, 1187. The evidence in this case unequivocally established the tower was lawfully constructed, and the nuisance claim was predicated entirely on Laubenstein's distinctive aesthetic preferences.

¶ 11 Nuisance claims founded solely on aesthetic harm are not actionable. City of McAlester v. King , 1957 OK 270, ¶ 13, 317 P.2d 265, 270 (rejecting nuisance claim arising from a water tower constructed on an adjacent tract which affected plaintiffs' view and impaired lighting).¹² Laubenstein's entire case hinged on the cellular tower being visually unpleasant. In Bixby , 1916 OK 406, 57 Okla. 119, 156 P. 1184, we rejected an aesthetic nuisance claim based on a neighbor's construction of a wooden fence between two neighboring properties. As in the present case, the plaintiff in Bixby alleged that the fence was an aesthetic nuisance. Specifically, he argued the fence was unsightly, impaired his view, impeded airflow and light to his premises, and greatly damaged the value of the property. Id. ¶ 2, 57 Okla. 119, 156 P. at 1185. We found the complaints were not an actionable nuisance:

[T]he fence complained of did not constitute a nuisance and was not erected and maintained purely out of spite and ill will toward complainant ... but was erected in the exercise of a lawful right of the owner to improve and benefit his own property. The complainant is doubtless a man of education and refinement, and evidently takes great pride in his home and in beautifying the grounds surrounding the same, for all of which he is to be commended. He was doubtless annoyed and harassed at the unsightly view that this alley fence presented. Still the defendants in error had a perfect right to erect the fence and maintain the same to protect their home and their property and add to its privacy, comfort, and convenience, and they were not compelled to consult the

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