Posted by: Patricia Salkin | March 30, 2013

WA Sup. Ct. Upholds Dismissal of Inverse Condemnation and Nuisance Claims Following Siting of Substation and Resident Concerns over EMFs

Several residents, including named plaintiff Catherine Lakey, owned property abutting a parcel owned by Puget Sound Energy, Inc. (PSE) in the City of Kirkland, Washington. PSE had operated an electrical substation there for over 50 years, and constructed a new substation on the parcel in 2008, with additional transformers to provide redundancy. In order to build the new substation, PSE had obtained a variance from the City because the new substation’s redundancy features made it larger than permitted in the City’s zoning code. The City held a hearing on the variance, taking comments from neighbors before approving the variance. The residents never appealed the City’s decision to affirm the variance. Instead, they filed suit challenging the City’s decision to grant a variance allowing the substation there amounted to an inverse condemnation of their property and sued PSE claiming that electromagnetic fields (EMFs) emanating from the substation constituted a trespass onto their property, and a public and private nuisance, arguing that they reasonably feared injury to their health and interference with the use and enjoyment of their property caused by the EMFs. PSE moved to dismiss, asserting that EMFs have no harmful health effects.

At trial, the court required that the residents submit scientific evidence to support their argument that EMFs were harmful to their health and interfered with their property rights. The residents attempted to use sworn expert statements and scientific studies, evidence which PSE demanded be vetted through a Frye hearing. After applying the standards laid out in Frye v. United States, 293 F. 1013 (1923), the court concluded that the residents’ proposed evidence of the harmful effects of EMF exposure was inadmissible under Frye, as well as under Evidentiary Rule 702. Without any scientific evidence that EMFs are harmful, the court held that the residents could not sustain their trespass or nuisance claims. Further, the court held that the residents’ claim against the City had to be dismissed because the residents had failed to comply with the Washington Land Use Petition Act (LUPA), which required that they submit a timely LUPA petition challenging the City’s variance decision before bringing their inverse condemnation claim. Summary judgment was granted to PSE and the City on their respective issues, and the residents here appeal.

On appeal, the residents challenged both the lower court’s decision to exclude their scientific evidence under Frye, as well as the court’s ultimate decision to grant summary judgment to PSE on the nuisance claims. They further challenged the court’s interpretation of LUPA as barring their inverse condemnation claim, and the trial court’s decision to grant summary judgment to the City on the inverse condemnation claim.

The Washington Supreme Court held that the trial court had improperly excluded the residents’ scientific evidence under Frye, but had properly excluded it under Evidence Rule 702. The two standards are slightly different– Frye applies to novel scientific methodology and requires that the party attempting to admit the testimony prove that “the underlying scientific theory and the techniques, experiments or studies utilizing that theory are generally accepted in the relevant scientific community and capable of producing reliable results,” while the evidentiary rules apply to whether the testimony is based on reliable methodology and requires that the party submitting expert testimony prove that “the witness qualifies as an expert and the testimony will assist the trier of fact”– in other words, that it is not unreliable. Here, the court held that Frye did not apply because the residents’ expert was not proffering a novel methodology, but rather a novel conclusion based on what the lower court had deemed to be an unreliable methodology, implicating Evidentiary Rule 702. Thus, while the court reversed the lower court’s ruling based on Frye, it ultimately upheld exclusion of the evidence under Rule 702.

Washington nuisance law requires that a plaintiff show that the activities in question “annoy, injure, or endanger [their] comfort, repose, health or safety.” This fear of harm need not be scientifically proven, it must merely be reasonable– thus, even though the residents could not get their scientific evidence admitted, a summary judgment motion requires that the court assume the facts as asserted by the plaintiffs. However, even assuming for summary judgment purposes that the residents’ fear of EMF exposure was reasonable, the court held that there was no evidence PSE had used its property in an unreasonable manner sufficient to qualify as a “nuisance.” Because the utility was using its property in a very reasonable, and publicly useful, manner, and because the property had been used as a substation since the 1950s, the court held that PSE’s use of the property as a substation could not be considered a nuisance. Thus, the lower court’s grant of summary judgment to PSE on the nuisance issue was affirmed.

As to the LUPA claim, the court held that the trial court improperly applied LUPA rather than the law of Phillips v. King County, 136 Wash.2d 946 (1998). The residents contended, and the Washington Supreme Court agreed, that the trial court should not have applied LUPA to this case because LUPA, which governs judicial review of land use decisions, contains an exemption for claims for “monetary damages or compensation” such as an inverse condemnation claim. The residents did not seek review of the City’s variance decision; rather, they sought compensation for a taking they claimed resulted from the variance decision, meaning that LUPA did not apply.

However, summary judgment on the inverse condemnation claim was nevertheless properly granted, because of the inverse condemnation rules laid out in Phillips. Under Phillips, a party claiming inverse condemnation must demonstrate “(1) a taking or damaging (2) of private property (3) for public use (4) without just compensation being paid (5) by a governmental entity which had not instituted formal proceedings.” In Phillips, the Washington Supreme Court declined to find an inverse condemnation resulting from a governmental permit approval, holding instead that inverse condemnation claims could be sustained in Washington where a governmental entity “appropriated the land, restricted its use through regulation, or caused damage by constructing a public project to achieve a public purpose, not for permitting decisions.” For that reason, the court declined to find any liability on the part of the City for an inverse condemnation stemming from its grant of a variance. Thus, while the Washington Supreme Court reversed the lower court’s LUPA analysis, it affirmed the lower court’s grant of summary judgment to the City on the inverse condemnation claim under its own Phillips analysis.

Lakey v. Puget Sound Energy, Inc., 2013 WL 865468 (Wash. Sup. Ct. 3/7/13)

The opinion can be accessed at:


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