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Some good news for Kirkland substation neighbors as Puget Sound Energy pays for damages, lawsuit continues

Michael Heslop, left, and a group of his neighbors stand next to the 23-foot-wall that borders their Kirkland properties. Behind the wall is a Puget Sound Energy substation that is at the center of a legal dispute between the neighbors, PSE and the City of Kirkland. - Contributed
Michael Heslop, left, and a group of his neighbors stand next to the 23-foot-wall that borders their Kirkland properties. Behind the wall is a Puget Sound Energy substation that is at the center of a legal dispute between the neighbors, PSE and the City of Kirkland.
— image credit: Contributed

The $2.7 million lawsuit filed by Juanita substation neighbors against Puget Sound Energy (PSE) in September and then the City of Kirkland in March has taken some turns during the past two months.

The court ruled against the main EMF (electromagnetic field) evidence presented by the neighbors and Kirkland officials have petitioned for the case against the city to be thrown out.

PSE also recently paid neighbors nearly $64,000 for damages to the homes that resulted from substation construction.

"The court, we believe wrongly excluded the testimony of our expert that EMF was possibly carcinogenic," said Michael Heslop, one of the neighboring residents involved in the suit. "We find this a bit puzzling because The International Agency for Research on Cancer (IARC), which is an agency of the World Health Organization (WHO), classifies EMF as a 2B carcinogen (possibly carcinogenic to humans). This is the the same classification that IARC has assigned to 266 possibly carcinogenic agents such as lead, pesticide DDT, chloroform and most recently cell phone radiation."

PSE has declined to comment on the proceedings while it is in litigation.

Judge Mary I. Yu ruled in favor of PSE that the EMF levels were inadmissible in court because the medical or scientific testimony that the levels were too high was not reliable and did not reach the standard set by a previous case, according to court documents. The ruling came nearly two weeks after the Reporter's story on the city being included in the lawsuit against PSE..

The substation neighbors plan to appeal the decision. The ruling does not effect other issues in the case such as the devaluation of the homes from the substation based on real estate assessments.

On the heels of Yu's decision, the city has filed a motion for summary judgment based primarily on the fact that neighbors did not file a judicial review of the city's variance.

Under the Land Use Petition Act, judicial review of a land-use decision must be sought within 21 days of the issuance of the land-use decision.

"Yet nobody filed a LUPA appeal of the city's land-use decision," said assistant city attorney Oskar Rey in court documents filed by the city.

"In an attempt to avoid the procedural bar of LUPA, plaintiffs claim that they 'are not challenging the validity of the variance,'" stated Rey in the documents. "Yet they also assert that the issuance of the variance is an unconstitutional taking of their properties."

The city asserts that because the neighbors did not petition the city's judgement on the variance, the lawsuit is inadmissible.

Heslop has said in the past that the neighbors decided not to appeal the variance because their then-attorney advised them that it would cost them more than $100,000.

In addition, the city said in the motion that the neighbors claim of inverse condemnation does not meet the legal requirements. The neighbors have filed a response to the city's motion and a hearing on these issues is scheduled for Friday.

Substation neighbors did get good news on May 15 when they received payment for physical damage to the homes caused by the construction of the substation.

PSE originally denied that the construction damaged the homes, but relented when a third party assessed the damage. The check for nearly $64,000 is to be split between seven of the nine homeowners and brings to a close just one of the issues between the two parties.

The lawsuit was originally filed against PSE in September, and then the city was added in March, for the Juanita PSE substation that was built at 10910 N.E. 132nd St. and borders 11 homes.

Only nine of the homeowners are included in the lawsuit that asserts the substation has devalued the homes by 50 percent and EMFs encroach on the property, potentially causing physical harm.

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