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Oliver v. AT&T;Wireless Services11/29/1999
CERTIFIED FOR PARTIAL PUBLICATION *
APPEAL from the judgment of the Superior Court of Butte County, Roger Gilbert, Judge. Affirmed.
After an existing 110-foot cellular telephone transmission tower on their neighbors' property was replaced by one that was approximately 20 feet taller, plaintiffs Melvin E. Oliver and Brigitte M. Oliver brought this action against their neighbors, John J. and Joyce A. Permann (the Permanns), various cellular telephone companies, and the County of Butte (the County), claiming inverse condemnation, nuisance, intentional and negligent misrepresentation, suppression of fact, and four other causes of action.
The trial court granted summary judgment in favor of the Permanns and the following cellular telephone companies: AT&T;Wireless Services, Cellular One, and McCaw Cellular Communications.
The published portion of this opinion addresses the issues of whether the construction of a cellular transmission tower on a neighbor's property, in accordance with approvals from the County and the California Public Utilities Commission (PUC), gives rise to causes of action for inverse condemnation and nuisance by the adjoining property owners by reason of the transmission tower's "looming" appearance, which has purportedly decreased the value of their property.
Significantly, any remedy that is given to the plaintiff property owners for the perceived infringement of their property rights will result in an infringement of their neighbors' rights to lease their land for the use of the transmission tower. In this particular case, while we have sympathy for plaintiffs' plight, not all plights give rise to legal rights. We conclude that the mere displeasing appearance in size and shape of a neighboring structure that is otherwise permitted by law, the only admitted effect of which is an alleged diminution in value of the adjacent property, cannot constitute a nuisance or give rise to an inverse condemnation claim. Since a landowner has no natural right to an unobstructed view (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1250), 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.
Otherwise, one person's tastes could form the basis for depriving another person of the right to use his or her property, and nuisance law would be transformed into a license to the courts to set neighborhood aesthetic standards. We affirm summary judgment in defendants' favor.
I. FACTS AND PROCEDURAL BACKGROUND
A. The Tower's Construction
For more than 26 years, plaintiffs, Mr. & Mrs. Oliver, lived on a 20-acre parcel on Power House Hill Road in Oroville, California. Immediately adjacent to plaintiffs' property is a two-and-one-half acre parcel located on Bronson Court, Oroville, owned by defendants, the Permanns.
In or about 1990, the Permanns leased a portion of their property near the plaintiffs' parcel for the construction of a cellular telephone transmission tower. In 1990, a 110-foot transmission tower, with a cargo container at its base (the service module), surrounded by a chain link security fence, was constructed on the leased portion of the Permanns' property (the cell site). Although the plaintiffs later testified that they "might not have liked" the transmission tower, they never complained to the Permanns or anyone else about it.
In 1994, defendant Cellular One sought a use permit from the County Planning Commission to upgrade several facilities,
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