Judge Hears BWL Arguments Under Disputed Maple Tree

Above: Judge Clinton Canady looks at the trees in the backyard of Conni Crittenden, foreground. Immediately behind Canady is the mature disputed maple, which has multiple trunks. BWL wants to remove the entire trunk shown on the left (to the right of Canady) in this photo. What would remain is the trunk shown directly behind Canady in this photo.

Ingham County Judge Clinton Canady literally held court at noon today in an East Lansing backyard to decide the fate of a maple tree at the center of a BWL-homeowner lawsuit. Canady’s decision on this mature silver maple is likely to determine the fate of thousands of trees in East Lansing and other BWL-served areas, as BWL hopes Canady will agree with the power company’s assertion that anything within three feet of or at all overhanging their lines must be cut away.

Recognizing the gravity of Canady’s forthcoming decision, BWL showed up with a large contingent, including BWL’s General Manager Dick Peffley, BWL Manager Dave Bolan, BWL Forester John Rademacher, BWL Supervisor Diana Paul, and two attorneys, Randy Kleiman and Ellen Kleiman.

Richard and Conni Crittenden, the homeowners being sued by BWL, were also in attendance, along with their arborist, Alex Ellis of Ellis Arbor Care, and their attorney Greg McClelland. At the request of Randy Kleiman, a court reporter was also present and used a lawn chair as a table for her stenography machine for the unusual hearing.

BWL began by telling the judge that in order to protect their power grid, they need to cut back any part of any tree overhanging any of their lines. In the case of this maple, which has multiple trunks, this means taking out an entire section of the tree that begins at a twenty-three-inch-circumference base, leaving a stump at the ground at that point.

BWL’s Bolan told the judge that there are “researchers out there who have opined that if you take the overhang away, that basically your reliability improves tremendously” along a power grid. BWL’s Rademacher said he thought there would still be plenty of shade in the Crittenden’s yard, even though BWL is also removing a neighbor’s large elm tree that currently shades the Crittendens’ yard.

The Crittendens’ arborist, Alex Ellis, told the judge that if BWL does what is planned, what will be left is a twenty-three-inch-wide stump subject to moisture and rot. He said this “wound” will subsequently rot out the base of the rest of the tree, causing the remaining tree’s death. Ellis said he wanted to “minimize risk” to the power grid while also “trying to preserve the tree’s integrity.”

According to Ellis, the solution is to significantly shorten limbs near the power lines to create “less of a mechanical lever that wind or ice can act upon.” He said he could not guarantee the tree would never fall on the line but added that “nothing is tornado proof. The only way to remove risk [to the grid from this tree] is to remove the tree entirely.” He said what he was proposing was “a standard pruning called ‘end-weight reduction’ pruning.” He added “this needs to be done in a thoughtful manner where we don’t arbitrarily use criteria of chopping off everything that comes over the line.”

Judge Canady spent a great deal of time moving around the yard to get a sense of how each tree is positioned relative to the line and to the sun. BWL’s attorney Randy Kleiman told the judge he thought Ellis’s plan was still going to leave the grid vulnerable. He said the “reality is it is still close to the line.”

Richard Crittenden spoke to say that he and his wife had lived at the property for 40 years and that none of the trees on their property had ever caused a power outage, including during the 2013 ice storm that precipitated BWL’s interest in cutting these trees, nor in the recent storm that BWL called the worst summer storm on record. Crittenden said that any tree could fall in a storm, so the question is not how to eliminate risk but how to mitigate risk to the grid in a “reasonable” fashion.

Crittenden reminded the judge he and his wife are personally willing to pay for the trimming themselves, as they have in the past with their trees, if their arborist was trusted to do the job. He said he didn’t want his trees to look like a neighbor’s nearby pine “where the Board cut the whole back side off of it.” He pointed out to the judge the results of that one-sided pruning.

BWL’s attorney Kleiman said what Crittenden was proposing would require annual pruning. “It will grow back.” He said, “the utility frankly can’t afford to stop at every property and assess and trim solely what is hanging over and figure out when weight reduction pruning can reduce the risk.” He suggested BWL needs to be able to simply go and cut back any tree within three feet of a line, from ground to sky, without these discussions.

But Ellis, the Crittendens’ arborist, pointed to where BWL had trimmed the maple in question before Richard Crittenden had stopped the cutting—before the lawsuit BWL brought against the Crittendens. There, as BWL’s Rademacher had also noted, the tree has already grown new branches about two- to three-feet long, reaching towards BWL’s lines. Ellis said that BWL’s cutting approach of cutting the tree up “will also require the same commitment” of trimming every one or two years. He explained that this species of maple grows just as much out as in, which means BWL can’t force it to grow only up once it cuts it back away from the line.

Ellis argued, “Whatever happens to this tree short of removal is going to require commitment. Once you start a process, you have to come back to the tree long term, and respond to its growth to maintain whatever path is taken.”

The judge did not make a decision on site but thanked everyone for joining him at the hearing, which lasted about a half-hour.

Disclosure: ELi is supported by individual donors, and our donors include Richard and Conni Crittenden. Traditional local media, including the Lansing State Journal and WILX (which have reporte on this lawsuit), are supported primarily by advertising dollars, which includes money from BWL in the case of the LSJ, and Consumers Energy in the case of WILX. This reporter volunteers (is never paid for) all of her service to ELi.