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New York Court Rejects EMF Claims

Fortnightly Magazine - February 15 1997

A New York appellate court has rejected claims by sellers of a residential property located near a high-voltage transmission line in Westchester county that the utility owner of the line should pay compensation for a drop in property value allegedly due to public fears about electromagnetic fields.

The case turned on the court's interpretation of constitutional "taking" rules and the legal doctrine of "inverse condemnation.

"Invasion" Claimed. The sellers had sued Consolidated Edison Co. of New York Inc., claiming that EMF radiation had "invaded" their property, causing a significant loss in the value of their home without compensation.

Invisible to the Senses. According to the court, however, EMF radiation could not support recovery under a theory of inverse condemnation because humans cannot perceive EMF with any of the five senses. As it explained, a seller seeking damages for inverse condemnation must demonstrate a permanent physical occupation of property "amounting to the exercise of dominion and control thereof." EMF, said the court, cannot produce a physical invasion in the manner necessary to prove that one party has "taken" or damaged another's property.

A Hazard? It added that the property owners had also failed to offer proof that EMF radiation actually constitutes a health hazard that would render the property unsafe and uninhabitable. Reiss v. Consol. Edison Co. of New York, No. 76635, Dec. 5, 1996 (N.Y.App.Div.).

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