BWL Sues EL Homeowner Behind Tree-Defense Yard Sign Campaign

Image: Richard Crittenden outside his home with one of the yard signs he had produced

The Lansing Board of Water and Light (BWL) has filed a lawsuit against the East Lansing homeowner who initiated a yard sign campaign to push back against what that homeowner called an overly aggressive “vegetation management” campaign by the electric utility.

BWL is suing Richard and Conni Crittenden of Ardson Road in an effort to force the Crittendens to allow BWL trimmers to cut as BWL says it must to maintain the power lines that run through the back of the Crittendens’ yard. (The Crittendens’ home is owned by a family trust, so the lawsuit is technically against the Crittendens as trustees of that family trust.) BWL also wants the Crittendens to pay BWL’s attorney fees for the suit, a figure that could easily run into five figures.

In an interview last Friday at his historic Glencairn home, Richard Crittenden told me he thinks it is not a coincidence that BWL has singled him out for a lawsuit.

He told me, “Since I am the only person who has been sued and since I am responsible for the signs, it’s clear I am the person who is going to pay for this. I think this is as much a lawsuit against my efforts to educate people with the signs as it is a lawsuit about the board getting a decision that will allow them to do what they want to do—to carry out their vegetation management program along the standards they have developed. “

BWL Public Affairs director Steve Serkaian declined to answer my question about whether BWL is suing any other customers as part of BWL’s vegetation management program. He also declined to respond to Crittenden’s statement, relayed by me, that Crittenden has been singled out because of the yard sign campaign.

BWL’s legal filing against the Crittendens specifically mentions the yard signs. As ELi has previously reported, Richard Crittenden created the signs to try to protect fellow East Lansing and Lansing homeowners against unreasonable cutting by BWL, Wright Tree company, and any other contractors hired by BWL to remove vegetation following the widespread power outage that resulted from an ice storm in late December, 2013.

The yard signs, paid for by Crittenden and today found in yards all over East Lansing, read: “Notice—LBWL and its subcontractors may not enter this property to trim vegetation without the owner’s written or verbal permission, and proof of an easement right to do so!”

In the lawsuit filing, law firm Oade, Stroud, & Kleiman representing BWL erroneously inform the judge that the signs read, “Stop immediately destroying the trees in my backyard. You may not come on my property or have any of your tree trimmings land on my property or I will do anything legal in my power to stop you!” The suit refers to exhibit “L,” which has a photograph of the actual sign, showing the correct wording.

BWL claims in its lawsuit that it has a legal easement, dating to 1919, for the Crittenden’s subdivision, known as Ardson Heights. That easement gave access to three feet on either side of property lines for the construction and maintenance of utility equipment. The Crittendens’ response, filed by the law firm of McClelland & Anderson, admits to that easement but says BWL was supposed to regularly renew it and that the company failed to do so.

BWL also claims what is called a “prescriptive easement”—that is, a right to maintain the lines where they are because it has been doing so for years. The Crittendens’ respond through their attorney, “the Board has performed virtually no maintenance on its conduit, poles, wires and equipment in the expired easement during the thirty-seven (37) years the Crittendens have owned and occupied the Property.”

Indeed, it was BWL’s failure to appropriately maintain lines—including in terms of tree-trimming—that was named as a major cause of the widespread outage in the report issued by the Community Review Team (CRT). BWL says it now must remove all vegetation spanning at least six feet around any BWL power line (three feet on other side), and cites the CRT report. The CRT report does not actually provide such a standard, but names BWL’s failure to trim trees as a contributor to the outage.

In their response to BWL’s filing with Judge Clinton Canady III, the Crittendens label as specious BWL’s claim that the trees in the rear area of their property must be dramatically cut back in order to maintain the power, because that section of lines suffered no damage during the ice storm—an ice storm which BWL called an extraordinary and virtually unprecedented event. The Crittendens and their immediate neighbors did not lose power from the ice storm.

Richard Crittenden feels he and his wife must fight BWL on this issue or risk the trees of thousands of other East Lansing homeowners to what they see as unnecessarily aggressive cutting. Crittenden told me, “This decision [on his case] is going to effect thousands of homeowners in East Lansing.”

“Everybody is complacent now,” he says, because BWL has decided to temporarily stop aggressive cutting in East Lansing (read more). “But if the trucks were running around Glencairn or Shaw Estates or Bailey, you know people would be up in arms. If the board believed that they have a clear right to do what they were doing, they would be doing it now, and they’re not doing it because it isn’t clear.”

Crittenden suspects his case is going to be the one that decides what BWL can do around East Lansing: “They are hoping to take on one homeowner to get the judge to say they can do what they want. That’s worth a lot of money to them. They can spend a lot to try to get that.” He adds, “There is no doubt in my mind they intend to remove all vegetation within 3 feet of either side on every power line. They will not compromise.”

He says he tried to compromise with BWL’s vegetation management personnel, asking them to talk to him and to meet. But, he says, BWL did not agree to meet with him to discuss his specific concerns until after the lawsuit was already filed. At that point, BWL and its attorneys came to the Crittendens’ home, but according to Richard Crittenden, refused to compromise even after the Crittendens’ arborist explained how they could cut to protect workers and lines without cutting so many trees and limbs.

I asked BWL, “Why did BWL decide to sue the Crittendens rather than first meeting with them to try to come to some agreement about cutting in their yard? (The first meeting with them came after BWL had filed the lawsuit against them, although Richard had asked for a meeting earlier.)”

BWL Public Affairs director Serkaian again did not answer, responding only, “As a result recommendations made by the Community Review Team and Michigan Public Service Commission, the BWL created a 5-year tree trimming schedule where every area of our service territory is visited in order to remove limbs away from power lines to maintain appropriate clearances for system reliability and the safety of our customers and employees. Because this matter is in litigation, the BWL is unable to comment further.”

The Crittendens’ legal response specifically names the concern about other BWL customers’ trees: “the Standards [now adopted by BWL] were adopted without any public input or apparent professional assistance, are arbitrary and capricious as they do not consider the type or species of the vegetation, the age or condition or the likelihood the vegetation will present problems in the type of equipment involved; Crittendens further affirmatively aver that the Board’s Program and Standards, as applied, will result in the clear cutting of a 6’ wide swath behind the Property and thousands of other properties in the Board’s customer service area.”

Crittenden has said before and emphasized to me again in conjunction with this latest interview that he is not against all trimming, but rather seeks to have BWL adopt a more reasonable standard that preserves growth, particularly old-growth trees, when it is possible to do so without likely threat to life or the grid.

According to Crittenden, a court-ordered mediation meeting is scheduled for August 11. If a settlement is not reached, the trial is set for February, 2016. ELi will continue to track this story.

Disclosure: The author is a BWL customer and Richard and Conni Crittenden are donors to East Lansing Info.