Litigating Damage Claims Resulting From Erection of Overhead Electric Transmission Lines Under Right of Easement By Benson A.

Snaider Commencing in 1919 Connecticut Light and Power Company (CL&P) began acquiring easements to allow the placement of electric transmission lines, on poles and other supporting structures throughout Connecticut. The easements generally provided for a 50 foot swath through private property , at that time, usually farmland or forests. The easements were essentially uniform in describing CL&Ps rights to use the property, they provided: " the right to enter upon said land and erect, inspect, operate, replace, repair and patrol, and permanently maintain on said right of way poles and towers, with necessary conductors, wires, cross arms, guy wires and other usual fixtures and appurtenances used or adapted for telephone purposes." "Together also with the right to trim, cut and remove at any and all times such trees, parts of trees, limbs, branches and underbrush within or projecting into the described right of way as in the judgment of the grantee may interfere with or endanger said poles, towers and wires, or their operation, or with any of their appurtenances when erected."

As originally implemented the transmission lines transmitted less than 100kV of electricity and were mounted on wooden telephone poles that, in the context of the forests and farms of the era, would have been inconspicuous and non-intrusive. During the housing boom of the 50s and 60s developers acquired and subdivided rural land subject to the CL&P easements, developing a multitude of single family houses on plots encumbered by the easement. The transmission facilities, even though upgraded to transmit 115 kV of electricity were for the most part concealed by trees and brush that had grown to shield them. Buyers accepted the easement as a benign encumbrance. By the turn of the century Connecticuts need for electric power had increased dramatically. Electric utilities needed to increase the voltage generated and transmitted throughout the state. On October 9, 2003 CL&P filed with the Connecticut Siting

Council an application for a "Certificate of Environmental Compatibility and Public Need for a project to upgrade the transmission lines to transmit 345 kV of electricity between Scovill Rock Switching Station in Middletown and Norwalk Substation in Norwalk. The project would enable CL&P to install new electric above ground transmission wires and towers and poles in Middlesex and New Haven counties over and upon the aforesaid easements. That portion of the project which extended into Fairfield county was to be below ground. The Siting Council approved the application and CL&P commenced the project by clear cutting trees, shrubs and vegetation along its easement line in New Haven and Middlesex counties and constructed gravel roadways on its easements so as to facilitate the construction of steel towers and structures often as high as 180 feet to replace the smaller wooden and lattice structures which carried 115 kV of electricity. The steel towers could not be shielded from view even if the trees and shrubs had not been removed. They became gigantic eyesores in the residential settings in which they were emplaced. The effect was to substantially reduce the market value of the properties on which they were constructed and those closely adjacent to them because of the esthetic degradation and the stigma of electromagnetic fields (EMF) which the towers and enlarged wires engendered. The new enlarged structures impaired the homeowner s use and enjoyment of their property. Many of the property owners adversely affected by the project, by the construction of the gravel roadway, (which was eventually removed), and the erection of the enormous steel transmission towers, brought suit against CL&P for damages as a direct result of the project alleging causes of action which will be discussed below. Most, if not all, of these cases were resolved by confidential settlement agreements.

CLAIMING DAMAGES: In contemplating the possible causes of action that may be available to secure compensation for the damage and loss the homeowner suffered as a result of the use of its easements by CL&P to upgrade its transmission facilities the attorney is faced with the undeniable fact that the project and CL&Ps actions were perfectly legal and were carried out for the public good on and over land encumbered by its long established easement. Can a valid cause of action be well founded against it for its lawful acts performed for the public good? The simple answer is YES! Knowing that CL&P is endowed with the power of eminent domain plaintiffs attorney may at first blush may believe that inverse condemnation would offer some relief. That would be wrong. Judge Barry Stevens wrote an excellent opinion granting CL&Ps motion for summary judgment on the inverse condemnation count when the issue came before him in the Waterbury Complex Litigation docket1. Inverse condemnation in these cases is a needless exercise in futility and is unnecessary because Connecticut common law offers a much better theory upon which to base a claim for damages resulting from the upgrading of electric transmission fixtures and that is private nuisance. PRIVATE NUISANCE: The starting point in any discussion of the law of private nuisance in Connecticut is the Supreme Courts decision in Pestey v. Cushman, 259 Conn. 345 (2002). The case was brought by the plaintiff landowner against his neighbor whose dairy farm allegedly interfered with his use and enjoyment of his property

Passariello v. CL&P Co., X06 CV 07 5005753, Superior Court of Connecticut, Waterbury March 31, 2009;

Stevens, Barry K., J. Opinion Title: MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

by emitting noxious and offensive odors. The trial court awarded the plaintiff $100,000.00 in damages under the theory of private nuisance. The Court, at 360-1, discussed the elements of private nuisance. On the basis of our reexamination of our case law and upon our review of private nuisance law as described by the leading authorities, we adopt the basic principles of 822 of the Restatement (Second) of Torts and conclude that in order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional; Quinnett v. Newman, supra, 213 Conn. at 348, 568 A.2d 786 (nuisance is created intentionally if defendant intends act that brings about condition found to be nuisance); or the result of the defendant's negligence. Id., at 348-49, 568 A.2d 786. Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable. Emphasis Supplied. It is significant to note that Justice Vertefeuille stated that the fact finder must make the determination of whether the interference is unreasonable. In other words unlike the judicial weighing of facts and law which is inherent in a claim of inverse condemnation, it is the jury and not the judge which makes the determination of what is deemed to be a reasonable use or unreasonable interference. A private nuisance may be created by lawful, indeed mandated activity. Id. 359; Walsh v. Town of Stonington W.P.A., 250 Conn. 443, 462-3 (1999). Once the elements of a private nuisance claim have been established damages may include an award based upon the owners loss of use and enjoyment of his/her property as well as the loss of the propertys market value caused by the defendants

action. In this regard the testimony of an expert real estate appraiser is usually introduced. However, in Connecticut it is well established that the lay homeowner is qualified to testify to the market value of his/her property. Pesty, 259 Conn. 363-4.

"Diminished value may be established by opinion if, based on all the evidence, the trier finds the opinion credible.... Homeowners are allowed to testify as to that diminution as well as to their opinion that the loss in value is attributable to the maintenance of a private nuisance by a defendant.... It is also clear that homeowners are allowed to testify as to their opinion of fair market value." Kinsale v. Tombari, 95 Conn. App. 472,478 (2006);Gregorio v. Naugatuck, 89 Conn.App. 147, 156 (2005). One element of diminished value that is of particular importance in the electric transmission cases is stigma that is the public fear of EMF related health problems from high voltage electric transmission lines. The court may award damages for diminished market value attributed to the fear of the facilities installed on the property if that fear is well founded. Northeast Gas Transmission Company v. Warren, 144 Conn.
217 (1957). well founded means that there is a reasonable basis for the public fear. The landowner must prove that (1) the market recognizes a diminution in value attributable to fear of the facility and (2) the fear of the facility is well-founded. The latter element will require expert testimony to the effect that there is respected scientific evidence that EMFs are a health hazard. There is ample evidence to substantiate that claim. The standard of proof does not require absolute scientific accord on the subject only that respectable scientific evidence does in fact exist. Scientific studies on the subject are available in abundance. Respected studies by respected scientists have found that there is evidence that there is a possible link between radiation of EMFs from above ground electric transmission lines and childhood leukemia. In 1998, an expert working group, organized by the National Institute of Healths National Institute of Environmental Health Sciences (NIEHS), assessed the health effects of exposure to extremely low frequency EMF, the type found in homes near power lines. Based on studies about the incidence of childhood leukemia involving a large number of households, NIEHS found that power line magnetic fields are a possible cause of cancer. The working group also concluded that the results of EMF

animal, cellular, and mechanistic (process) studies do not confirm or refute the finding of the human studies. The International Agency for Research on Cancer (WHO) reached a similar conclusion.
2

I believe that the foregoing meets the standard of well founded fear articulated in the Northeast Gas Transmission case, supra. Conclusion: The effects of the erection of large electric towers in the back yard are devastating both emotionally and financially to homeowners who may have been unaware of the dire consequences lurking in the legalize of the seemingly innocuous electric transmission easement in their chain of title. In appropriate cases there is a remedy by which they can assert a viable claim for compensation. That remedy is the law and theory of private nuisance.
See, Proceedings of the International Conference on Non-Ionizing Radiation at UNITEN (ICNIR 2003) Electromagnetic Fields and Our Health , 20-22 October 2003. Setting Prudent Public Health Policy for Electromagnetic Field Exposures. Dr. David Carpente r and Cindy Sage, published in Review on Environmental Health, Volume 23, No. 2, 2008 Benson A. Snaider

See, Proceedings of the International Conference on Non-Ionizing Radiation at UNITEN (ICNIR 2003) Electromagnetic Fields and Our Health , 20-22 October 2003. Setting Prudent Public Health Policy for Electromagnetic Field Exposures. Dr. David Carpenter and Cindy Sage, published in Review on Environmental Health, Volume 23, No. 2, 2008 Benson A. Snaider