Subject: (fwd) Defending against EMF property devaluation cases.
Date: Sat, 18 Apr 1998 181921 -0500 (CDT)
From: "Roy L. Beavers" <rbeavers@llion.org>
To: emfguru@hotmail.com
--------------------------------------------------
Hi everybody:
This info has been known in legal circles for a number of years.
But some of you may not heve run into it before......
Cheerio.....
Roy Beavers (EMFguru)
rbeavers@llion.org..............http://www.feb.se/EMF-L/EMF-L.html
................................It is better to light a single candle ...
than to curse the darkness...............................................
---------- Forwarded message ----------
Date: Sat, 18 Apr 1998 21:37:15 GMT
From: jdomink@webt.com
To: "Roy L. Beavers"
Subject: (fwd) Defending against EMF property devaluation cases.
(electromagnetic ...
Hi,
I've been getting copied on some of the stuff you're writing ever since
we launched a fight against a cellular tower in our back yard, here in
Western New York (Buffalo). While doing some research I came across
this article apparently directed at utilities in an effort to ward-off
the potential threat of lawsuits against utilities. Since it seems as
though you are into EMF etc., I thought this article might interest you.
John Dominkewicz
>____________________________________________________________________________
>Database: Gen'l Reference Ctr Gold (GPIP)
>Key Words: Property Devaluation
>Library: Buffalo & Erie County Public Library
>____________________________________________________________________________
>
>
> Source: Public Utilities Fortnightly (1994), Feb 1, 1995 133 n3 p43(2).
>
> Title: Defending against EMF property devaluation cases.
(electromagnetic
> fields)
> Author: George Brandon
>
> Abstract: Electric utilities need to develop defenses for claims of
property
>value declines due to nearby electromagnetic fields from power lines. A
recent
>New York State Court of Appeals decision has allowed an adjacent owner to sue
>for damages on such grounds, and other states have similar decisions.
>Scientific debate may be irrelevant, but one defense may use the statute of
>limitations.
>
> Subjects: Electric utilities - Litigation
> Electromagnetic fields - Litigation
> Real property - Valuation
>Jurisdctn: states
> SIC code: 4911
>
> Business Collection: 84U2891
>Electronic Collection: A16599109
> RN: A16599109
>
>
>Full Text COPYRIGHT Public Utilities Reports Inc. 1995
>
>Late last year, New York's highest court, the Court of Appeals, ruled that
the
>owner of property adjacent to a utility's high-power electrical transmission
>lines could seek damages for a decrease in the market value of the property
>caused by the fear that the power lines might cause cancer, even if such a
>fear was not medically or scientifically reasonable. That decision has
already
>begun to change the outlook on electromagnetic field (EMF) litigation for
>utilities.
>
>For one thing, the New York case--which followed similar decisions by courts
>in a number of other states, including Florida and Kansas--is likely to
>influence the remaining courts across the country that have not yet faced
this
>legal issue. If that occurs, the national rule likely will become that,
>generally speaking, a decrease in the market value of real estate
attributable
>to widespread concern over EMF's will be sufficient for property owners to
>make damage claims against utility companies, regardless of whether the
>concern is reasonable.
>
>Science Irrelevant
>
>The New York decision suggests that scientific studies of the allegedly
>harmful health effects of EMF may not be relevant in property devaluation
>cases--and, indeed, may be inadmissible. Because there has been no scientific
>consensus on the posited link between EMF's and cancer, plaintiff's in EMF
>suits have had a rather difficult barrier--in legal terms, causation--to
>surpass. Now, at least in property devaluation cases, that barrier may have
>been removed.
>
>The New York decision is also likely to radically change the focus of EMF
>litigation. Plaintiffs and their attorneys will probably show less interest
in
>personal injury lawsuits, and significantly greater interest in EMF property
>devaluation cases.
>
>Indeed, EMF property devaluation cases would seem destined to eclipse in
>number and monetary value the EMF personal injury cases filed to date: A
>report in Science magazine indicated that the owners of approximately 10
>million acres of land and 1 million homes in the United States, with a market
>value of $100 billion, may be able to assert that their property is subject
to
>EMF levels from power lines in excess of typical household background levels.
>
>It is important to understand, however, that mere assertions do not imply
that
>the claims are valid. At least two recent studies by the utility industry--a
>1992 study by the Florida Power & Light Co. and a 1993 report by the Kansas
>City Power & Light Co.--have indicated that property values were not
>negatively affected by the proximity of transmission lines. Thus, utilities
>always have the right to mount a defense on the merits to all devaluation
>cases filed against them. Toward that end, prudent utilities should begin to
>focus on EMF property devaluation litigation now.
>
>Just Compensation
>
>Property owners concerned about EMF from power lines can assert a number of
>different claims against utilities, ranging from nuisance (that is, a claim
>that something affects the property owners' use and enjoyment of their
>property) and trespass (that is, a claim that something--such as EMF
waves--is
>entering their property) to inverse condemnation or eminent domain. Most of
>the cases filed to date are, and many of those likely to be filed in the
>future will be, condemnation cases in which owners allege that their property
>values have decreased due to the actions of public utilities, thus triggering
>the requirements of the Fifth Amendment to the U.S. Constitution.
>
>Generally speaking, under the Fifth Amendment, the owner of property taken
for
>public purposes by the government or an entity (such as a utility) acting in
>the government's stead must receive just compensation. A taking need not be a
>complete taking for the Fifth Amendment to apply; something less than the
>acquisition of title to property by condemnation can require compensation.
>Courts have indicated that compensation may be necessary in cases involving
>substantial interference with property or where government regulation of
>property went "too far." For example, courts have found property owners
>entitled to compensation when their views have been obstructed or they were
>forced to suffer an inordinate amount of noise.
>
>To show an EMF taking under the New York Court of Appeals test, property
>owners must prove that the value of their property declined because of
>marketwide cancerphobia (or other fear) stemming from EME The property owners
>then must prove the amount of the compensation--that is, the decrease in the
>market value of their property--they claim.
>
>Personal Fear
>
>Under the New York ruling, the personal fear of a witness--whether an expert
>witness, a resident of the community, or the property owner--is not
admissible
>to prove fear in the marketplace. As the court stated, "a personal or quirky
>fear or perception is not proof enough." Rather, plaintiffs must provide
>evidence that the market value of the property across which power lines have
>been built has been negatively affected, in relation to comparable property
>across which no power lines have been built and because of a widespread
>perception in the community that a health risk might be present. To do so,
>plaintiffs either must introduce expert testimony about market conditions or
>actual market data on sales of comparable property. They also may attempt to
>introduce other kinds of testimony, ranging from anecdotal evidence from
>builders and real estate brokers to public opinion surveys.
>
>Causation is the crucial issue in EMF property devaluation cases. It is up to
>plaintiffs to prove that any difference in market values is attributable to
>the fear of the power lines. If plaintiffs are unable to link the devaluation
>of the property to widespread EMF fears, they will not be entitled to recover
>damages from a utility.
>
>Of course, defendants and their counsel can challenge the credentials and
>experience of plaintiffs' experts (to show, for instance, that they are not
>knowledgeable in the area or that they are biased) and, more generally,
attack
>the so-called expert testimony or the validity of the market data that
>plaintiffs offer into evidence. The defense can also introduce witnesses such
>as real estate appraisers and others familiar with the appraisal of real
>estate, as well as offer poll and survey results of its own, to show that the
>power lines had no effect on the market value of the plaintiff's property.
>
>Even if plaintiffs are able to show property devaluation caused by EMF fears,
>they still might not be entitled to damages. They have to prove the amount of
>"just compensation," which also requires analysis of comparable sites and
>market data. And they have to overcome other defenses that may be available
to
>utilities.
>
>Limitations Defense
>
>The statute of limitations may be just such a defense in many cases, because
>it specifies the time in which a property owner must file suit. There are a
>number of unresolved questions relating to the statute of limitations in this
>context. For instance, does the statute of limitations period begin to run
>from the time a person acquired the property? Or does it begin to run from a
>later point, such as when the owner learned or should have learned about EMF
>fears in the marketplace? If a court permits it to run from this later point,
>defense counsel must determine when property owners knew or should have
gained
>such knowledge. The extensive media coverage EMF has received in recent years
>might make it difficult for property owners to overcome the statute of
>limitations defense by asserting a relatively recent date.
>
>There also are other fact questions associated with a statute of limitations
>defense. For instance, what if the power line was in existence before the
>current property owner acquired the property? Did a prior owner have
knowledge
>of EMF, and could it be argued that the current owner paid less for the
>property as a result, thus dooming the current owner's damages claim?
>
>Some have argued that EMF litigation will be the "asbestos of the '90s."
>Plaintiffs have many hurdles to overcome before that prediction comes true,
>but utilities should not simply adopt a wait-and-see attitude. Planning for
>property devaluation cases that are likely to be filed, and aggressively
>defending the cases that do arise, can help utilities avoid the extreme
>problems faced by the asbestos industry.
>
>George Brandon is a litigation partner in the New York office of Milbank,
>Tweed, Hadley & McCloy. He has represented utility industry (and other)
>clients in complex litigation in courts across the country and has counseled
>with respect to developing EMF issues.
>
> -- End --
Archive provided courtesy of WaveGuide, http://www.wave-guide.org
Reprinted with permission of Roy Beavers, http://www.feb.se/EMF-L/EMF-L.html