Posted by: Patricia Salkin | July 25, 2013

WA Supreme Court Upholds Summary Judgment for City With Respect to Nuisance Allegations from Substation EMFs and Inverse Condemnation Claim

For fifty years, Puget Sound Energy, Inc. (“PSE”) has had an electrical substation located on property bordering Plaintiffs’ homes in Kirkland, Washington (“City”).  The substation acts as a power source for the entire neighborhood.  In 2008, PSE applied for a variance from the City to replace the substation with a larger one.  The City approved PSE’s variance after a public hearing, which Plaintiffs appealed to the city council and lost.  Plaintiffs did not appeal this decision with a land use petition under the Land Use Petition Act (“LUPA”).

After PSE built the new substation, Plaintiffs filed suit against PSE, alleging that the electromagnetic fields (“EMFs”) emanating from the substation constituted both a public and private nuisance.  Plaintiffs claimed the EMFs threatened their health, as well as interfered with their use and enjoyment of their property.  PSE moved to dismiss the complaint, claiming that the EMFs would not be harmful to Plaintiffs’ health and thus did not constitute a nuisance.  Later, Plaintiffs amended their complaint to include the City as a defendant, alleging that the City’s grant of PSE’s variance constituted an inverse condemnation.  The City moved for summary judgment on this claim against Plaintiffs.

The trial court ordered a Frye hearing in order to determine the admissibility of the parties’ experts regarding the health effects of the EMFs.  Plaintiffs offered expert testimony by Dr. Be Kun Li and Dr. David Carpenter, who both testified that EMFs could cause health problems.  Carpenter admitted that his research was based on a reanalysis of data collected by others and that he discounted studies that did not come to the same conclusion he did.  PSE’s experts testified that Carpenter’s studies failed to comply with scientific protocol by ignoring relevant studies and data.

At the end of the hearing, the trial court held that Carpenter’s testimony was inadmissible for failure to follow scientific protocol.  The trial court reasoned that since his methodology lacked acceptance in the scientific community, his scientific conclusions were unreliable.  The trial court then granted PSE’s motion and dismissed Plaintiffs’ nuisance claims.  The trial court also granted the City’s motion for summary judgment on the inverse condemnation claim, holding that Plaintiffs failed to timely petition the City’s decision under LUPA.  Plaintiffs appealed the trial court decision to the Supreme Court of Washington.

On appeal, the Supreme Court of Washington addressed Plaintiffs’ nuisance claim in two parts: the exclusion of Carpenter’s testimony under Frye and the ultimate granting of PSE’s summary judgment motion.  Regarding Carpenter’s testimony, the court explained that expert scientific testimony must satisfy both Frye and ER 702.  In Frye v. United States, the D.C. Circuit held that scientific experts must follow studies and methods that are generally accepted in the scientific community.  A novel scientific methodology cannot be used unless the scientific community deems it reliable.  In order to satisfy ER 702, the witness must qualify as an expert and his testimony must assist the trier of fact in making a well-informed decision.  While Frye ensures that the methods used by scientific experts are reliable, ER 702 ensures that the conclusions of the experts adhere to the proper methods.  In the present case, PSE argued that Carpenter’s testimony should be excluded under Frye because he used unreliable methodologies.  The appellate court held here that the issue was not whether Carpenter’s methods were reliable under Frye, but whether his conclusions were reliable under ER 702.  Carpenter did not use a methodology that was necessarily novel.  The issue instead arose in Carpenter’s application of the method when he excluded data, in turn leading to novel and unreliable conclusions.  The appellate court thus found that the trial court erred in applying Frye and instead based its analysis on ER 702.  Nevertheless, the exclusion of Carpenter’s testimony was affirmed since his conclusions were unreliable and would not assist the trier of fact as required by ER 702.

With regard to the summary judgment issue, the court began by defining a “nuisance” as a substantial and unreasonable interference with the plaintiff’s use and enjoyment of his land.  The “reasonableness” of the interference can be determined by weighing the harm caused by the action against its social utility and community dependence.  Here, the court found that as a matter of law, no reasonable juror could find PSE’s actions to be unreasonable.  The entire surrounding neighborhood, including Plaintiffs as members of the neighborhood, all relied heavily on PSE’s substation as a power source.  Additionally, the substation had been in the same place for fifty years without issue.  Due to the high degree of social utility versus the minimal – if any – harm or fear caused to Plaintiffs, the court held that no reasonable juror could determine PSE’s erection of the substation to be unreasonable.  Since PSE’s actions were not unreasonable, they did not create a nuisance and the granting of PSE’s motion was appropriate.

The court then reviewed the trial court’s application of LUPA to the inverse condemnation claim against the City.  LUPA authorizes courts to grant relief in cases where a party’s constitutional rights are violated by a land use decision.  LUPA is meant to be the “exclusive means” of judicial review of land use decisions.  Any LUPA claim must be made within 21 days of the land use decision.  In an inverse condemnation action, a party seeks compensation for government takings of private property for public use.  Here, the appellate court determined that LUPA did not apply to Plaintiffs’ inverse condemnation claim.  Plaintiffs only sought compensation; they did not seek judicial review of the land use decision.  None of the cases cited by the City were on point because they did not involve claims based solely on damages.  Instead, the cases required a judicial determination regarding the land use decision’s validity, which could then lead to damages.  Since Plaintiffs did not seek judicial review of the decision, LUPA did not apply here and the inverse condemnation claim was not time barred.

Although the inverse condemnation claim was not time barred, the court found that summary judgment was still appropriate.  The court explained that an inverse condemnation claim seeks to recover the value of appropriated property.  The elements to be proven are: “(1) a taking or damaging (2) of private property (3) for public use (4) without just compensation being paid (5) by a governmental entity that has not instituted formal proceedings.”  In Phillips, the case cited to by the City, the court held that for reasons of public policy, a municipality’s issuance of a permit cannot be considered a direct taking for public use.  If this were the case, then the taxpayers would become unfairly liable for the actions of others.  Here, the appellate court found that the City of Kirkland likewise could not be liable for simply permitting PSE to build its substation without directly appropriating any of Plaintiffs’ properties.  As such, the trial court was correct in granting summary judgment in favor of the City.

Lakey v. Puget Sound Energy, Inc., 296 P.3d 860 (WA 3/7/2013)

The opinion can be accessed at:

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