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The Criscuola Decision — The Sparks
Are Still Flying
By Michael Rikon
When New York State's highest court, the Court of Appeals,
handed down Criscuola v. Power Authority of the State of New
York, many hailed the decision as the missing piece of the
puzzle which would provide the means to obtain monetary damages
due to diminu-tion of property values caused by being in close
proximity to an electromagnetic radiation field (EMF).
Criscuola became the subject of numerous articles and seminars.
In their excellent column on Environmental Law, Stephen L.
Kass and Michael B. Gerrard wrote an article in the New York
Law Journal entitled "Emotional Distress and Property
Values After Criscuola." NYLJ, October 22, 1993, p. 3,
col. 1, and ventured that Criscuola would be applicable in
cases involving contaminated property, toxic torts, superfund
cases, tax assessments, zoning cases and SEQRA matters.
On March 14, 1994, at p. S1, col. 1, the New York Law Journal
featured an article by Eric Bregman and Andrew J. Gershon,
two renowned environmental law practitioners, "Utilities
Shocked by Suits Charging Property Damage." Bregman and
Gershon opined, "Criscuola thus provides an important
precedent for those who would seek compensation for the impact
of electromagnetic fields on their properties, whether in
the context of an eminent domain proceeding or through inverse
condemnation."
Criscuola was a well reported decision. And, although hailed
as a landmark decision by the New York Times, the Wall Street
Journal and other national and international publications,
as will be discussed later, the decisions which followed Criscuola
indicate a reluctance to follow the Court of Appeals' clear
message.
Three years later, one observes the aggressive use of the
holding in many different types of lawsuits as predicted.
Certainly it is being used in eminent domain cases. The Criscuola
doctrine is also being utilized in inverse condemnation cases
and in a host of other situations diverse as the fertile imagination
of learned counsel would allow.
Judge Bellacosa wrote in Criscuola that "Evidence of
fear in the marketplace is admissible with respect to the
value of property taken without proof of the reasonableness
of the fear2."
In the key holding the New York Court of Appeals ruled:
1. There should be no requirement that the claimant must establish
the reasonableness of a fear or perception of danger or of
health risks from exposure to high voltage power lines, and
2. Whether the danger is a scientifically genuine or verifiable
fact should be irrelevant to the central issue of its market
value impact.
A claimant, however, is not relieved from giving any proof
to establish his claim and just compensation damages. Criscuola
v. P.A.S.N.Y., mandates that a claimant must still establish
some prevalent perception of a danger emanating from the objectionable
condition.
Quoting the Ryan decision once again, the Court of Appeals
stated, "No witness, whether expert or non-expert, may
use his or her personal fear as a basis for testifying about
fear in the marketplace. However, any other evidence that
fear exists in the public about the dangers of high voltage
lines is admissible." (emphasis supplied)
Judge Bellacosa stated:
"Claimants should have to connect the market value diminution
of the property to the particular fear in much the same manner
that any other adverse market effects are shown, e.g., by
proffering evidence that the market value of property across
which power lines have been built has been negatively affected
in relation to comparable properties across which no power
lines have been built (see generally, 4 Nichols, Eminent Domain
Sec. 12.02) [Sackman 3d, ed. 1994]3."
There have been two recent New York Appellate Court decisions
which should be reviewed since they were decided after the
Court of Appeals decided Criscuola, Jonas v. Power Authority
of the State of New York4 and DeMarco v. Power Authority of
the State of New York5.
Both decisions arose from the same Marcy South transmission
line takings which took part of the Criscuola brothers' property.
Indeed, it was the same Second Department of the Appellate
Division which previously affirmed Zappavigna v. State of
New York6 holding that scientific proof was necessary to establish
"cancerphobia" consequential damages. This holding
was, of course, reversed in Criscuola.
In Jonas, the Appellate Division held, "We find that
the Court of Claims properly declined to award the claimants
consequential damages for, among other things 'negative view'
'cancerphobia' and 'noise pollution.' The claimants failed
to demonstrate that [the market value of property adjacent
to or near land upon which power lines have been built] was
diminished by such factors in relation to comparable properties
which are not adjacent to or near power lines." (see,
Criscuola v. Power Auth. of State of N.Y., 81 NY2d 649, 654;
Niagara Mohawk Power Corp. v. Olin, 138 AD2d 940, 941; Matter
of Niagara Mohawk Power Corp., 118 AD2d 891, 893).
"The claimants contend that the trial court erred in
precluding them from offering evidence relating to the reasonableness
of the public fear of health risks from exposure to high-voltage
power lines. However, in light of the decision in Criscuola
v. Power Auth. of State of N.Y. (supra), that it is not necessary
to prove the reasonableness of the public fear in order to
establish a diminish-ment in market value, the preclusion
of such evidence was not error."
The second quoted paragraph does not seem to be logical.
Claimants were precluded from introducing evidence relating
to the reasonableness of the public fear of health risks from
EMF. The appeal focused on the trial court's denial of any
consequential damages for "cancerphobia." Thus,
to state that it wasn't necessary anyway in view of Criscuola,
begs the question. It would have been far preferable to remand
for additional testimony in view of the Court of Appeals decision.
In the DeMarco decision, the Appellate Court, likewise, held
that, based on the record, the trial court properly declined
to award consequential damages for negative views or visual
pollution. Citing, inter alia, Criscuola v. Power Auth. of
State of New York.
Another decision of interest is Filipowski v. State of New
York7. Filipowski was one of the last Marcy-South partial
appropriations. In a well written decision, Court of Claims
Judge Jerome F. Hanifin, wrote, at page 59:
"Because the Court has concluded in this Claim that
the proof presented does not support Claimant's position that
there is an adverse effect of the subject appropriation outside
of the physical taking lines, the Court has not examined the
Zappavigna record. Perhaps that was the only course of action
available in view of the Court of Appeals' expressed views
with regard to testimony by "electromagnetic power engineers,
scientists or medical experts" (Criscuola, p. 652) Whether
that is the case or not, this Court, in arriving at its findings,
acted on the assumption that there was indeed an electromagnetic
field that permeated space beyond the permanent taking lines
on the subject property. Whether this electromagnetic field
created a fear, reasonable or unreasonable, may or may not
be the case. What the electromagnetic field did not generate,
based on the proof presented to the Court, was a fear that
in turn caused a reduction in market value of the subject
remainder outside of the permanent easement taking lines."
In an inverse condemnation setting, seeking damages because
of a loss in value of a residence located near a pre-existing
high voltage power line, summary judgment was granted, dismissing
the complaint against a utility in Westchester Supreme Court.
In Borekind v. Consolidated Edison Corp.8, the Court stated:
"The 'taking' or disseisin claim of plaintiff, in the
sense that some of the value of the appreciation of their
property was taken by defendant or loss to them by virtue
of the power lines pre-existing their own taking of title
does not bear analysis. While it is true that in Criscuola
v. Power Authority of the State of NY, 81 N.Y.2d 649, 602
N.Y.S.2d 588, 621 N.E.2d 1195 (1993), the Court of Appeals,
in formulating the condemnation award to the plaintiff, did
allow for depreciation of the plaintiff's remaining property
for this perception reason when a portion of the property
was being condemned as a right-of-way for new power lines
and that the plaintiff needn't be required to provide the
reasonableness of the public fear, such is not the case here
since there is no new, or for that matter of, taking or disseisin
from these plaintiffs themselves."
The dismissal in Borekind led the same Westchester County
Supreme Court Justice to grant summary judgment in Reiss v.
Consolidated Edison9 which similarly alleged inverse condemnation
damages because of the close proximity of the power lines
to their residence. The Reiss' were mentioned in an article
written by the Wall Street Journal "Power Lines Short-Circuit
Sales, Homeowners Claim" which discussed EMF property
devaluation on a national basis10.
In 1994, the Village of Tarrytown in Westchester County passed
a local law creating a moratorium on installation of cellular
telephone antennas. On appeal following the denial of a preliminary
injunction, the Appellate Division, Second Department reversed,
holding that the moratorium was not a valid exercise of the
Village's police or zoning powers and was, therefore, invalid.
The Village cited Criscuola to support their claim that the
perception of health risks need not be reasonable or scientifically
based in order to justify the local law. The Court held that
this contention was without merit. "The Criscuola decision
has no bearing on the issue of whether a municipality may
enact legislation restricting property rights based solely
upon the public's unreasonable fear of health risks, an issue
which, on the present record, must be resolved in favor of
the plaintiff11."
On the other hand, in New Jersey, the Appellate Division
of the Superior Court gave Criscuola greater consideration
in effort to stop the Borough of Spring Lake Heights from
leasing municipal property for use as a cellular facility
including transmission antenna, holding in Sellitto v. Borough
of Spring Lake Heights12,
"On the other hand, plaintiff has brought to our attention
Criscuola v. Power Authority of the State of New York, 81
N.Y.2d 649, 602 N.Y.S.2d 588, 621 N.E.2d 1195 (Ct. App. 1993),
which he claims supports the proposition that the Mayor and
Council should have considered the public's perception that
a transmitting facility, such as that proposed, may be dangerous,
and should therefore have considered the effect such perception
would have on local property values, even though plaintiff
is unable to present proof that a danger actually exists.
We reverse that part of the order of May 24, 1994, which
held that the subject lease was not subject to public bidding
and remand for the trial court to restrain the borough from
enforcing its lease with Bell Atlantic."
As predicted by Kass and Gerrard, Criscuola was relied on
in a toxic tort case brought against an installer of foam
insulation. In Cottonaro v. Southtowns Industries, Inc.13,
the Appellate Division, Fourth Department, stated:
"...Damages from the diminished market value of real
property as a result of public fear of exposure to a potential
health hazard constitute consequential damages (see, Criscuola
v. Power Auth. of State of N.Y., 81 N.Y.2d 649, 602 N.Y.S.2d
588, 621 N.E.2d 1195). The relevant claim accrual date for
Statute of Limitations' purposes "does not change merely
because continuing consequential damages are alleged"
(Quinn v. County of Nassau, 162 A.D.2d 514, 556 N.Y.S.2d 712).
The cases involving pure eminent domain claims for power
lines, which were decided thus far after Criscuola, did not
have the proper appraisals which, consistent with the Court
of Appeals, contained evidence of some prevalent perception
of a danger emanating from the high voltage lines. If the
requisite proof is supplied, consequential damages must be
awarded. Inverse condemnation claims may be more difficult
in concept to understand but they are well established under
New York Law. Eventually, Criscuola will be the basis for
inverse property devaluation claims. One thing is certain,
the practitioner must be alert to the continuing metamorphis
of the law. Further clarification may be required by the Court
of Appeals setting forth the perimeters of Criscuola's application
to other claims.
1. Criscuola v. Power Authority of the State of New York,
81 NY2d 649, 602 NYS2d 588, 621 NE2d 1195 (1993).
2. Quoting Ryan v. Kansas Power and Light Co., 249 Kan 1,7,815
p.2d 528, 533.
3. Criscuola v. P.A.S.N.Y., 81 NY2d 649, 654, 602 NYS2d 588,
590 (1993).
4. 210 AD2d 453, 620 NYS2d 991 (2nd Dept. 1994).
5. 211 AD2d 612, 621 NYS2d 883 (2nd Dept. 1995).
6. 186 AD2d 557, 588 NYS2d 585.
7. Claim No. 74005, filed February 28, 1995.
8. 164 Misc2d 808, 626 NYS2d 414 (Sup. Ct. West. Co., 1995).
9. (Index No. 10243/94, Decision and Order 6/14/95) Appeal
Perfected to Second Department.
10. Wall Street Journal, Dec. 8, 1993, p. B1.
11. Cellular Telephone Company v. Village of Tarrytown, 209
AD2d 57, 624 NYS2d 170 (2nd Dept., 1995).
12. 284 N.J. Super 277, 664 AD2d 1284 (1995).
13. 213 AD2d 993 (4th Dept. 1995).
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