by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EMINENT DOMAIN; INVERSE CONDEMNATION; ELECTROMAGNETIC EMISSIONS: Property abutting a utility's power line easement is not entitled to damages on a theory of inverse condemnation where plaintiff's property has become less valuable due to purchaser's fear of electromagnetic field (EMF) emissions. (2 cases)

(1) Reiss v. Consolidated Edison Company of New York, 650 N.Y.S.2d 480 (App. Div. 1996).

(2) United States v. 0.59 Acres of Land, 97 C.D.O.S. 2515 (9th Cir. 1997)

Plaintiffs' argument was that the electromagnetic fields affected their property causing substantial diminution in the value and constituting a taking for which they were entitled to compensation. The New York decision ruled that to sustain a cause of action for inverse condemnationin New York, the plaintiff must allege and prove that the defendant has intruded onto the plaintiff's property and interfered with their property rights in a permanent physical occupation of the property. The "invasion" of EMF, the court determined, did not constitute a physical taking. Other cases where intangible intrusion, such as noise or odor, lead to compensation do not apply here as the plaintiffs were unable to prove physical harm by reason of the existence of EMF (i.e., no scientific proof of health hazard).

The Ninth Circuit held that a tax assessor's opinion that the proposed power line would not change the assessed value of the property for tax purposes was incompetent and prejudicial, and that a letter expressing a homeowner's opinion about the effects of EMFs on her estimate of value and a letter expressing an intent to purchase comparable property were both likewise inadmissible. Finally, decades-old purchase prices for the properties and an unscientific homeowner survey on the effect of EMFs generated by the power lines were not admissible. The court also approved the District Court's refusal to instruct the jury to award compensation for the physical invasion of the property by EMFs. The landowners had cited testimony that EMFs constituted a physical presence on the property but provided no legal support for the instruction that a jury must award compensation for a physical invasion.

Also see: San Diego Gas & Electric Co. v. Covalt, 55 Cal. Rptr. 2d 724 (Cal. 1996) (Depreciation in value due to threat of electromagnetic waves does not impose "direct and substantial" burden on property sufficient to render City Power Department liable for inverse condemnation damages under California "taking or damaging" Constitutional provision

Compare: Finkelstein v. Department of Transportation, 656 So.2d. 921 (Fla. 1995) (Evidence that "stigma" of environmental contamination may reduce value of land is admissible in eminent domain proceeding, even when landowner had already qualified for public funds to remediate the problem prior to condemnation and would have done so.); Carter v. City of Porterville, 22 Cal. Rptr. 2d 76 (Cal. App. 1993) (suggests that landowner may have actionable takings claim in if it can show that its property has been reduced in value substantially because of concerns that a dam built on adjacent state land may burst and cause injury to persons or property on plaintiff's land.).

Comment: It is understandable that courts would desire to "dump" these EMF cases and the oceans of pseudo science that they contain, but, as the cases cited as comparison cases above demonstrate, there is in fact authority for the proposition that public action that "stigmatizes" property to such a great extent that a taking has occurred ought to be viewed as a taking. The distinction advanced by the New York court here - that there must be some tangible impact, even if nothing more than a smell or a noise, does not strike the editor as a distinction that is likely to stand up to the scrutiny of the common law cases that come afterwards. It is simply a device utilized to avoid EMF litigation, which courts (perhaps properly) tend to characterize with suits over UFO's, witchcraft and poltergeists.

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