## Facts

- Public Service Company of Colorado (PSCo), a regulated utility, obtained Colorado Public Utilities Commission (PUC) approval to upgrade and increase capacity of the Daniels Park high-voltage transmission line adjacent to Mark and Erica Van Wyk’s property.
- After the upgrade, the Van Wyks alleged increased noise, electromagnetic fields, and radiation waves affected their property, causing mental distress, loss of use and enjoyment, and diminished property value.
- The Van Wyks filed a putative class action asserting inverse condemnation, trespass, and nuisance.
- The district court dismissed all claims, ruling the PUC approval precluded them and, alternatively, the complaint failed to state claims.
- The court of appeals reversed, concluding PUC approval did not preclude the claims and the pleadings were sufficient.
- The Colorado Supreme Court granted review.

## Issues

1. Whether a quasi-judicial PUC decision approving a utility upgrade precludes adjacent landowners from later bringing inverse condemnation, trespass, and nuisance claims based on the upgrade’s effects.
2. Whether allegations of intangible impacts (noise, electromagnetic fields, radiation waves) sufficiently state claims for inverse condemnation and trespass under Colorado law.
3. Whether those allegations sufficiently state a nuisance claim notwithstanding prior PUC approval.

## Decision

- The court held that PUC approval of the upgrade did not preclude later civil claims by adjacent property owners for inverse condemnation, trespass, or nuisance.
- The court held that intangible intrusions do not support inverse condemnation and do not constitute trespass; dismissal of those claims was proper.
- The court held the nuisance claim was adequately pleaded and could proceed.
- The judgment was affirmed in part and reversed in part, leaving only the nuisance claim for further litigation.

## Legal Principles

- A PUC quasi-judicial approval of a utility project does not, by itself, operate as claim or issue preclusion against later private civil actions seeking relief for property impacts from the project.
- Inverse condemnation under Colorado law requires a taking or damaging for public use that is not satisfied by purely intangible invasions such as noise or electromagnetic effects, absent a direct physical invasion or comparable interference.
- Trespass requires an unauthorized physical invasion of land; intangible phenomena like noise and electromagnetic radiation are not trespass.
- Nuisance addresses substantial and unreasonable interferences with the use and enjoyment of land, including intangible interferences; regulatory approval may be relevant evidence but does not immunize a defendant from nuisance liability.
- Whether a condition constitutes an actionable nuisance is typically fact-dependent and may not be resolved on a motion to dismiss when the complaint alleges substantial interference.

## Conclusion

The Colorado Supreme Court ruled that regulatory approval of a transmission-line upgrade did not bar neighboring landowners’ later suits, but allegations of intangible effects could not support inverse condemnation or trespass; the pleaded nuisance claim remained viable and could proceed.


Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377 (Colo. 2001)