Opposition Brief — Reiss v. Consolidated Edison Co. of New York, Inc.

—

Supremé Court, US.

at ee ae ee

: JAN 1§ 1998

No. 97-997 ~~ CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1997

HOWARD and EVE REISS, Petitioners,

v.

CONSOLIDATED EDISON COMPANY

OF NEW YORK, INC., Respondent.

On Petition For A Wnt Of Certiorari To

The New York State Supreme Court

Appellate Division, Third Department

RESPONDENT?’S BRIEF IN OPPOSITION

RICHARD W. BABINECZ

Counsel of Record for Respondent

4 Irving Place

New York, NY 10003

(212) 460-3355

MAURA A. KILROY

Of Counsel

QUESTION PRESENTED

Does a “taking” of property requiring compensation

under the Fifth Amendment to the United States Constitution

result when property adjacent to an electric transmission line

right-of-way is devalued due to a public fear that the electric

and magnetic fields produced by transmission lines are

hazardous, where the uncontested proof establishes that

electric and magnetic fields are not detectable by the human

senses and where no allegation has been made and no proof

has been offered that such fields are actually hazardous?

RULE 29.6 DISCLOSURE

The parent of respondent Consolidated Edison

Company of New York, Inc. is Consolidated Edison, Inc.

Respondent Consolidated Edison Company of New

York, Inc. owns a minority interest (approximately 25.6%) in

Honeoye Storage Corporation. It has no other nonwholly

owned subsidiaries.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............--sssssssssssssseseessnseesssnneensson i

a cciscsccensoneosoesoncessscersvsnseess ii

I , cscisnsorosscopecunsesvencrosionse iii

TABLE OF AUTHORITIES ............::::scsscsscsssssessesseseseeeenees V

RESPONDENT’S BRIEF IN OPPOSITION............:-:-0::0+ 1

i as ctnnnhesidaceevesceree 1

RE 1

STATEMENT OF THE CASE. ...........:.:sscecesssssssseeeesees 2

Material Misstatements of Fact

Contained in the Petition ....................:::::ccseseeeees 6

REASONS FOR DENYING THE WRIT...............0:-+ 8

I THIS COURT LACKS SUBJECT

MATTER JURISDICTION, AS THE

OPINION AND ORDER SOUGHT TO

BE REVIEWED WAS DECIDED ON

AN INDEPENDENT AND ADEQUATE

STATE LAW GROUND .............::0:s:c:scssseeeeeee: 8

Il. THE APPELLATE DIVISION’S

DECISION IS FULLY CONSISTENT

WITH PRECEDENT ...............:::cccsssseeeeeereeees 11

iV

Vv

TABLE OF AUTHORITIES

Page

CASES

Lucas v. South Carolina Coastal Council,

$05 U.S. 1003, 112 S. Ct. 2886,

120 L.Ed.2d 798 (1992) ......:ccccsseseesseseeeetetseressrsneens 10, 13

Portsmouth Harbor Land & Hotel Co. v. United States,

260 U.S. 327, 43 S. Ct. 153, 67 L. Ed. 287 (1922)........ 12

Reiss v. Consolidated Edison Company of New York, Inc.,

228 A.D.2d 59, 650 N.Y.S.2d 480 (3d Dept. 1996),

appeal dismissed, 89 N.Y.2d 1085, 659 N.Y.S.2d 858,

681 N.E.2d 1305 (1997), leave to appeal denied,

oS ees (September 16, 1997).......-..:-110- passim

CONSTITUTIONAL PROVISIONS

Fifth Amendment to U.S. Constitution. ..............:-::s:ssserrer i

STATUTES

2B U.S.C. § 1287..........ccssccssncsssssesseesesrencnscncesessasensnsansecers 1

New York CPLR § 5601(b)(1) ........:cccsseeeseereessesetertneteesees 5

TREATISES

Prosser and Keeton, The Law of Torts (Sth ed. 1984) ... 10-11

l

RESPONDENT’S BRIEF IN OPPOSITION

The respondent Consolidated Edison Company of

New York, Inc. (“Con Edison”) respectfully requests that this

Court deny the petition for certiorari seeking review of the

Opinion and Order, entered December 5, 1996, of the

Appellate Division, Third Department, of the Supreme Court

of the State of New York.

OPINIONS BELOW

The opinion sought to be reviewed is reported at

228 A.D.2d 59, 650 N.Y.S.2d 480 (3d Dept. 1996).

The summary of decisions below set forth in the Petition

(Pet. 6) is incomplete. In addition to the decisions there

listed and reproduced in the Appendices to the Petition, the

New York Court of Appeals dismissed Petitioners’ appeal

taken as of right in an order entered May 8, 1997, “upon the

ground that no substantial constitutional question is directly

involved.” That order is reported at 89 N.Y.2d 1085,

659 N.Y.S.2d 858, 681 N.E.2d 1305 (1997), and is

reproduced in the Appendix to this Brief in Opposition, at

A-l.

JURISDICTION

Petitioners assert that this Court has subject matter

jurisdiction under 28 U.S.C. § 1257 (Pet. 2). As more fully

discussed in point “I” of this Brief, Respondent disputes

Petitioners’ assertion of subject matter jurisdiction on the

ground that the Opinion and Order sought to be reviewed

was decided on an independent and adequate state law

ground.

2

STATEMENT OF THE CASE

In their Complaint, Petitioners alleged, among other

things, that public fear of electric and magnetic fields

(“EMFs”) produced by, and entering their former property

from, a nearby Con Edison transmission line stigmatized,

devalued, and rendered the property unmarketable, thereby

effecting a de facto physical “taking” requiring compensation

under the New York and United States constitutions

(R 42-43)'. Petitioners neither alleged nor sought to prove

that EMFs are physically harmful or offensive to the human

senses or that EMFs physically impair the use or enjoyment of

property.

Petitioners purchased the subject property, which abuts

the transmission line right-of-way, in 1984 for $ 160,000

(R 185). At that time, Con Edison’s transmission line existed

in its current form — a 61.4 mile-long line of 100 foot tall

lattice steel towers spaced approximately 650 feet apart and

carrying two 345 kV circuits (R 23-24). The first

transmission line occupying the right-of-way began operation

in 1932 (R 24), several years before the house on the subject

property was built (R 196). The transmission line was later

rebuilt and upgraded, pursuant to approvals of the

appropriate public authorities (R 24-25). The portion of the

line near the subject property took on its current form in 1974

(R 25), ten years before Petitioners purchased the property.

Electric and magnetic fields consist of invisible lines of

force necessarily produced by electricity. These fields are

' Parenthetical numbers with the prefix “R” refer to pages in the

Department.

3

produced by voltage and exist when a line is connected to a

source of electricity, even if electricity is not flowing.

Magnetic fields are produced by the flow of electricity. Both

types of fields are strongest near their source and rapidly

become weaker as one moves away from the source.

(R 29-30).

In 1975 the New York Public Service Commission

(“PSC”) initiated a proceeding to investigate the possible

health effects of high voltage transmission lines. In 1978 the

PSC adopted an interim electric field standard applicable to

transmission lines built after adoption of the standard

(R 153-54). The standard was intended to limit the electric

adopted a similarly derived magnetic field standard in 1990

(R 166-75). Neither standard is health-based, as the PSC

concluded, after hearing expert testimony and examining the

relevant scientific literature, that there is insufficient scientific

evidence to support a conclusion that electric or magnetic

fields pose health risks (R 155, R 158, R 170-71).

line meets those standards. The certified survey provided by

Con Edison in support of its motion for summary judgment

established that the ission line is 115 feet away from

the subject property at its closest point (R 24, R 38, R 59).

The survey also established that the nearest tower is

4

approximately 125 feet from the property line and that none

of Con Edison’s facilities encroach upon or cross over the

property (R 38, R 59).

In addition to the de facto taking claim, Petitioners’

Complaint alleged a cause of action for trespass and sought a

permanent injunction (R 40-45).

Complaint in its entirety. Con Edison’s motion assumed

arguendo that EMFs produced by the transmission line had

extended onto the subject property (R 18).

In response to the motion, Petitioners withdrew their

demand for an injunction, as they had sold the property since

cemmencing the action (R 256). They sold the property for

$ 230,000 in October, 1994 (R 191), approximately eighteen

months after first placing it on the market (R248). In an

chose to sell the property because they believed the risks

associated with EMFs to be unacceptable (R 188-89). An

appraisal submitted by Petitioners concluded that public fear

of EMFs had decreased the value of the property by

$ 100,000 (R222). Petitioners, accordingly, reduced the

amount of compensation claimed from “no less than

$ 425,000” (R44) to $100,000 (R191, R222). The

appraisal, which valued the subject property as of

January 14, 1995 (R197), did not offer any evidence or

opinion that the alleged public fear of EMFs was a permanent

condition (see R 195-248).

The New York State Supreme Court, Westchester

County, finding neither a trespass nor a taking, granted

Con Edison’s summary judgment motion (see Pet.,

Appendix B).

otherwise interfered with their property rights. See

228 A.D.2d at 61-62, 650 N.Y.S.2d at 482. The court held

that the evidence that EMFs are imperceptible, coupled with

Petitioners’ failure to allege or offer proof that EMFs are

actually hazardous, established that EMFs are incapable of

physically occupying or harming property. See id.

Petitioners appealed to the New York Court of Appeals.

In their Jurisdictional Statement, they asserted that they were

entitled to appeal as of right under New York

CPLR § 5601(b)(1) because the action “directly involved the

construction of the Constitution of the State of New York

and the Constitution of the United States.” The Court of

Appeals sua sponte initiated an examination as to whether an

appeal lay as of right on constitutional grounds and invited

comments from both Petitioners and Con Edison on that

question. Con Edison argued that the Court of Appeals did

not have jurisdiction over the appeal as of right because the

Appellate Division’s decision rested solely on a state common

law ground. The Court of Appeals agreed, dismissing the

appeal on the ground that “no substantial constitutional

question is directly involved.” 89 N.Y.2d at 1085,

659 N.Y.S.2d at 858, 681 N.E.2d at 1305 (reproduced at

A-1, infra). Petitioners subsequently moved for leave to

appeal, but the Court of Appeals denied their motion (see

Pet., Appendix C).

cause of action, as Petitioners abandoned that claim on appeal.

See 228 A.D.2d at 60 n., 650 N.Y.S.2d at 482 n.1.

6

Material Misstatements of Fact Contained in the Petition

Comparison of the Statement of the Case contained in

this Brief with the Petitioners’ Statement of the Case

(Pet. 2-4) reveals numerous material factual omissions in the

Petitioners’ Statement of the Case. In addition, the Petition

contains several material misstatements of fact:

1. Petitioners assert that “there is no disagreement that

the EMFs invading the property substantially interfered with

the Reisses’ right to dispose of the property” (Pet. 12).

This statement is inaccurate and misleading in two

respects.

First, although Petitioner Howard Reiss claimed to have

measured EMF levels “substantially higher than background

levels” on the property, Petitioners never offered any

quantification of the EMF levels on the property (R 189).

_ Second, Con Edison has at no time agreed that EMFs

interfered at all — let alone substantially — with any of

Petitioners’ property rights. With respect specifically to

Petitioners’ right to dispose of the property, Con Edison has

consistently taken the position that Petitioners’ alleged

inability to sell the property for a price they believed to be

commensurate with its value and their alleged difficulty in

finding a purchaser did not constitute a restraint on their right

to dispose of the property. Indeed, the fact that Petitioners

succeeded in selling the property before Con Edison moved

for summary judgment demonstrates that their right to

dispose of the property was unimpaired.

2. Petitioners repeatedly assert that the subject

property is “one of a discrete and limited number of

7

immediately abut a massive high voltage electric power

transmission line” (Pet. i, see Pet. 15-18).

Those assertions have no evidentiary support in the

Record. At no point in this litigation have Petitioners

identified a single characteristic that distinguishes them from

thousands of other properties adjacent to Con Edison’s

transmission system.

On the contrary, the proof established that the subject

transmission line is 61.4 miles long, with 122.8 miles of

property abutting both edges of its right-of-way, and that the

subject property extends for approximately 200 feet along the

right-of-way (R 59). If it is assumed that each abutting piece

of property extends for 200 feet, then there would be 3,242

properties similar to the subject property abutting the

right-of-way (5,280 + 200 x 122.8 =3,242). If the owner of

each such property were entitled to the $ 100,000

compensation sought by Petitioners, the total compensation

payable in connection with this transmission line alone would

be $ 324.2 million!

In addition, owners of property adjacent to each of the

approximately one dozen high voltage transmission lines on

Con Edison’s system would presumably also be entitled to

similar compensation. And, if owners of property adjacent to

Con Edison’s transmission lines are entitled to compensation,

so are owners of property adjacent to all transmission lines in

New York State and throughout the United States.

Thus, Petitioners’ claim that the impact on the cost of

electricity of recognizing their taking claim would be barely

perceptible (Pet. 17) is wholly at odds with both the proof

and reality.

3. Petitioners refer to “cancerphobia caused by the

EMF invasion” (Pet. 17).

However, Petitioners have offered no evidence that

EMFs themselves cause “cancerphobia” or public fear. Fear

may arise out of, or be caused by, what some people say or

believe about EMFs, but without proof that EMFs are

actually hazardous (which Petitioners have not even alleged),

it is patently inaccurate to assert that EMFs cause

cancerphobia or public fear.

Taking the analysis one step farther, to imply that

Con Edison is responsible for the alleged cancerphobia

— and its alleged economic impact on Petitioners — because

its transmission of electricity produces EMFs is neither

logically nor legally supportable.

REASONS FOR DENYING THE WRIT

L

THIS COURT LACKS SUBJECT MATTER JURISDICTION,

AS THE OPINION AND ORDER SOUGHT TO BE

REVIEWED WAS DECIDED ON AN INDEPENDENT

AND ADEQUATE STATE LAW GROUND

Petitioners’ claim is that Con Edison has effected a

de facto physical taking of their property. Such a claim is

insufficient in itself to confer subject matter jurisdiction on

this Court. Moreover, because the Opinion and Order sought

to be reviewed was decided on a state law ground — i.e.,

that there has been no physical interference with Petitioners’

property rights — rather than the construction of the

Constitution, the Petition must be denied.

9

In the decision Petitioners ask this Court to review, the

Appellate Division began its analysis by correctly noting that:

In order to sustain a cause of action for

inverse condemnation, plaintiffs must allege

and prove that the defendant “has intruded

onto the [plaintiffs’] property and interfered

with [their] property rights to such a degree

that the conduct amounts to a constitutional

taking” . . .

228 A.D.2d at 61, 650 N.Y.S.2d at 482 (citation omitted).

The Appellate Division concluded that Petitioners had

failed to raise a triable issue of fact as to whether there had

been any physical interference with their property or property

rights, let alone such interference as could rise to the level of

a taking. The court reached that conclusion after considering

the undisputed proof that EMFs are not perceptible and the

fact that Petitioners neither alleged nor sought to prove that

EMFs are, in fact, physically harmful or offensive to the

human senses.

In effect, the Appellate Division held that an intrusion by

an intangible force that neither occupies space nor presents a

hazard or physical annoyance that prevents a property owner

from occupying, using, or enjoying space does not physically

impair any property right.

Petitioners’ rather melodramatic protest that the

Appellate Division established a “draconian” rule that no

taking can occur unless both the invasion is perceptible and

the property owner proves that the perceptible invasion

causes a health hazard that makes the property unsafe and

uninhabitable (Pet. 9) is, simply, inaccurate. The Appellate

10

Division did not hold, as Petitioners assert, that a physical

invasion must be perceptible to give rise to a taking (Pet. 5);

the court merely held that when an intrusion is imperceptible,

it must be physically harmful or offensive to be actionable.

Nothing in the court’s decision precludes basing an action on

an invasion by imperceptible substances, gases, waves, or

forces — such as x-rays, radon, groundwater pollutants,

bacteria, and viruses (see Pet. 5-6) — to the extent such are

alleged and proven to be harmful or offensive, thereby

impairing use and enjoyment of property.

Whether property rights have been interfered with is a

question of state law. See, e.g., Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1028-31, 112 S. Ct. 2886,

2900-02, 120 L.Ed.2d 798, 820-23 (1992).

Nothing in the United States Constitution precludes a

New York court from determining that causing an intrusion

by an intangible, imperceptible, physically innocuous force is

not actionable under New York law. Indeed — contrary to

Petitioners’ assertion that the Appellate Division’s decision is

unprecedented — that decision reflects the general common

law rule, as summarized in the leading treatise on tort law:

While it is generally assumed and held that a

personal entry is unnecessary for a trespass,

the defendant’s act must result in an invasion

of tangible matter. Otherwise, there would be

no use or interference with possession. Thus,

it is not a trespass to project light, noise, or

vibrations across or onto the land of another.

These acts may give rise to liability because of

a private nuisance resulting from intentional

interference with the use and enjoyment of

property . . .

si i ii ec i

11

Prosser and Keeton, The Law of Torts § 13, at 71 (Sth ed.

1984) (footnotes omitted).

Here, Petitioners have not alleged that the intangible

intrusion interfered with the use and enjoyment of the

property. Therefore, their allegations would be insufficient to

state claims for either trespass or private nuisance under the

common law of a majority of the states.

If the entity charged with causing an intrusion by an

intangible, imperceptible, innocuous force were a private

party rather than a public utility possessing the power of

eminent domain, this Court would unquestionably lack

jurisdiction to review the Appellate Division’s decision. As a

defendant’s mere possession of the power of eminent domain

cannot transform non-actionable conduct into conduct

requiring compensation, it is clear that this Court lacks

jurisdiction to review the Appellate Division’s decision.

IL.

THE APPELLATE DIVISION’S DECISION IS

FULLY CONSISTENT WITH PRECEDENT

In addition to being wholly consistent with the general

common law rule, the Appellate Division’s decision does not

conflict in any respect with this Court’s construction and

application of the Takings Clause. Accordingly, there is no

reason for this Court to review that decision.

From the commencement of this action, Petitioners have

sought compensation for a physical taking. However, they

have neither alleged nor sought to prove that the subject

property was in any way physically impaired or damaged.

What they have sought to prove is that the value of the

12

subject property was diminished by public fear. Thus,

although Petitioners have attempted to cloak their claim in

the guise of a physical taking, it is readily apparent that what

they actually want is to be compensated for the economic

consequences of an alleged public fear without having to

prove any nexus between that fear and any actual physical

effect on the subject property or its use and enjoyment.

Proceeding from their faulty premise that the Appellate

Division’s decision requires both perceptibility and health or

safety risks, Petitioners wrongly analogize this case to cases

involving either tangible intrusions or intangible intrusions

that are harmful or offensive.

For example, Petitioners’ heavy reliance on Portsmouth

Harbor Land & Hotel Co. v. United States, 260 U.S. 327,

43 S. Ct. 153, 67 L. Ed. 287 (1922), is misplaced. There,

this Court held that allegations that the United States had

reserved the right to fire heavy artillery over the plaintiff's

property were sufficient to state a taking claim. Because it

involved the right to cause an intrusion of the property’s

airspace by tangible objects (cannonballs), Portsmouth has no

relevance here. That Petitioners find it “puzzling” (Pet. 12)

that the Appellate Division did not discuss this inapposite

case reflects deficiencies in their analysis, not the Appellate

Division’s.

In fact, Petitioners have failed to identify a single

instance in which this Court has found a physical taking

unrelated to either the physical occupation of space by

tangible matter or the impairment of use and enjoyment by

intangible matter. In an attempt to get around this problem,

Petitioners contend that the impairment of other “sticks” in

their “bundle of property rights” is sufficient to establish their

taking claim (Pet. 11). However, even cursory consideration

13

of the two “sticks” allegedly impaired — “the right to dispose

of one’s property” and “the right to exclude others”— reveals

the infirmity of Petitioners’ position.

Petitioners have identified no way in which their right to

dispose of the property was impaired. At all times, they

retained full legal power to dispose of the property, as

evidenced by the fact that they sold the property

approximately four months after commencing this action.

That market forces may have delayed the sale and resulted in

a lower price than they would have liked hardly amounts to a

restraint on their right to dispose of the property.

Petitioners’ contention that by causing EMFs to enter

onto the subject property Con Edison interfered with their

right to exclude others assumes too much. The pertinent

question is whether Petitioners acquired the right to exclude

EMFs from the property when they purchased the property in

1984. See Lucas, 505 U.S. at 1027, 112 S. Ct. at 2899,

120 L. Ed. 2d at 820.

When Petitioners purchased the property, the

transmission line had existed in its current form for ten years,

and Con Edison had been using the adjacent right-of-way for

electric transmission for more than 50 years.. It is reasonable

to posit that persons who buy property immediately adjacent

to existing transmission lines take such property subject to

the physical conditions created by normal operation of those

lines. Although it is not reflected in the Appellate Division’ s

decision, much of the questioning on oral argument focused

on the fact that Con Edison’s operation of the line predated

Petitioners’ purchase of the property and did not change in

any way during the time Petitioners owned the property.

14

The fact that Petitioners voluntarily purchased the

property with full knowledge that a major transmission line

was located adjacent to it also belies Petitioners’ assertions

with costs that users of electricity should: properly bear.

Petitioners, moreover, voluntarily subjected themselves

to the market forces that they allege to have resulted from

Con Edison’s operation of the transmission line. Absent

allegations or proof that the line is dangerous, they cannot

legitimately claim that Con Edison’s operation of the line

forced them to sell their property at a reduced price at the

particular time they chose to sell it. Furthermore, Petitioners

offered no proof — via their appraisal or otherwise — that

the alleged public fear is permanent.

In short, Petitioners freely chose when to sell the

property and are themselves responsible for the economic

consequences, if any, of their decision to sell the property.

Con Edison has done nothing but operate a transmission line,

the location and configuration of which has been found to be

consistent with the public interest. Petitioners have neither

alleged nor sought to prove that Con Edison did anything to

create or encourage the alleged public fear of EMFs. This

case is not about Con Edison or its customers unfairly

imposing a burden on Petitioners; it is about Petitioners

attempting to have Con Edison and its customers bear the

economic consequences of Petitioners’ voluntary choices and

actions.

15

CONCLUSION

For the reasons discussed in this Brief, the Court should

deny the Petition.

Dated: January 13, 1998

Respectfully submitted,

RICHARD W. BABINECZ

Counsel of Record for Respondent

4 Irving Place

New York, New York 10003

(212) 460-3355

. MAURA A. KILROY

Of Counsel