Judge's Decision Likely to Decide Fate of Thousands of East Lansing Trees

Above: Tree-trimming trucks out in the Glencairn neighborhood today, following Friday’s storm

With electrical provider BWL and East Lansing resident Richard Crittenden still unable to agree on the right way to trim a mature silver maple in Crittenden’s yard, Ingham County Judge Clinton Canady will soon be going out to look at the tree himself.

In the lawsuit brought by BWL, Canady has ruled that BWL does have an easement right to maintain the lines running through the Crittendens’ Glencairn neighborhood yard. The case now hinges on whether BWL has the right to cut as aggressively as the company insists it must to maintain its power grid.

Why is BWL spending what probably amounts now to a five-figure sum to fight over one maple tree? BWL lacks clear legal easements for many East Lansing neighborhoods, and it hopes to establish, with this case, the right to trim and cut down trees as it deems necessary. Following the ice storm of 2013, BWL was found in two public investigations to have long neglected vegetation growing around its lines, and the company is now seeking to remedy that situation.

As has been noted in court proceedings, Crittenden himself, in the past, trimmed branches over wires to avoid problems with the lines. BWL’s attorneys have suggested this is a tacit admission by Crittenden that branches over wires are a problem. But Crittenden says he has never disputed that branches over wires can be problem; he believes BWL should follow the practice of other power companies which involves trimming over wires after taking into account species type, distance from the wire, and the like.

Asked what he’s trying to achieve by continuing to defend his tree against BWL, Crittenden told me today, “I’m hoping to achieve what I was hoping to achieve from the beginning, which is a rational vegetation management policy that takes into consideration both the needs of the Board to protect their powerlines and the interests of the homeowners on whose property those powerlines cross.” He added, “We have offered numerous compromise options and they have offered zero.”

As we previously reported, Crittenden believes BWL has decided to sue him and only him as payback for producing signs now deployed by about a hundred homeowners in East Lansing and Lansing in their yards to challenge BWL’s trimmers. Yard signs designed and paid for by Crittenden say: “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!” Crittenden says he has only distributed signs to people who have specifically asked him for them—and that there have been many.

In a previous hearing, Randy Kleiman, attorney for BWL, brought up the yard signs, saying Crittenden had been aggressively trying to stop BWL’s trimmers. In his court filing on the matter, Kleiman erroneously told the judge 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!” (Despite this claim in his pleadings, Kleiman’s court filing included photos of the sign showing the actual wording.)

Crittenden told me today that the signs are meant simply to assert basic property rights: “Every property owner has the right to say ‘show me the easement.’” He says that, while in some cases BWL has easements in East Lansing that clearly state what they are allowed to do in terms of trimming and tree removal, in many cases, BWL does not. He added, “If you want to exercise some control over what happens on your property, you should know what easements the Board has on your property.”

The recent discovery that BWL lacks a franchise agreement with East Lansing, in apparent violation of the State Constitution, may create another legal wrinkle in this case. East Lansing City Council members have considered the possibility that a future franchise agreement may be a place for East Lansing to build in some degree of tree protection.

At today’s hearing, Kleiman told the judge that Friday’s storm had “damaged” a “relatively large limb” of the maple in question, causing branches to fall on BWL’s lines. He produced a photo allegedly showing this, but attorney Greg McClelland, representing Crittenden, told the judge Crittenden said there was no significant damage to the tree from the storm. I asked Kleiman to send me the photo, which he did. On the left is the photo he showed the judge, and on the right, the photo from which the portion was cropped, which Kleiman also provided to me.

In a previous hearing, Judge Canady had suggested Crittenden’s arborist make a recommendation for trimming and BWL respond. Arborist Alex Ellis of Ellis Arbor Care consequently produced a letter in late April recommending “end-weight reduction pruning” and “elimination of 1-2 branches up to 4” diameter that extend over the line.”

Ellis stated that BWL’s plan—to remove the entire southern trunk of the silver maple tree—could lead to “development of a column of decay” for this tree, and ultimately death. Ellis also said that BWL’s approach “would render this tree lop-sided with most of its weight leaning towards [the] neighbor’s house to the north.” Below is a photo of a tree cut on one side by BWL in the property next to Crittenden’s, demonstrating the one-side tree-cut approach BWL has been utilizing.

BWL rejected Ellis’s recommendation without comment. Today Kleiman insisted that BWL must cut all branches above lines. Klieman told the judge that “reduction pruning” was not enough; BWL needs to eliminate all overhanging branches, he said, to maintain safety and power.

In response, Crittenden’s attorney McClelland called BWL’s approach “inflexible.” He said, “On Friday, the storm took out trees by their roots....No pruning job will stop a storm that lifts trees out by their roots.”

As Kleiman noted to the judge today, BWL was taken to task in two investigations following the 2013-2014 ice storm for not having appropriately trimmed trees. Kleiman told the judge those reviews said BWL must “eliminate overhang [of branches], not reduce it.” The reports do not make that specific recommendation, but do generally recommend a more organized and intensive vegetation management strategy.

In his letter, arborist Ellis wrote, “BWL’s ‘No Overhang’ criterion is an anomaly compared to industry standards. While collaborating with Consumer’s Power [sic] recently about trimming trees for line clearance at a property in Okemos, they allowed for overhang of branches over power lines, specifying only that branches within certain distances of lines must be removed. Branches above these distances were allowed to remain over the wires.”

Ellis added, “This has been the norm in my experience collaborating with power companies in other cities around the country and locally in Michigan from Grand Rapids, to Okemos, and Williamston. I have never heard of a no overhang policy in urban and suburban communities. Typically that is a kind of pruning associated with high voltage transmission lines running through rural areas.”

Ellis also said that “the no-overhang criterion seems inconsistent. Last week I spoke with an East Lansing resident who’s [sic] oak tree overhangs a BWL high voltage line. She sought an estimate from me to work on the tree. She told me that BWL told her they will not prune it back from the line because it would be difficult for them to access….As I studied the tree in order to determine the cost of the job, it was clear that it would require a good deal of time, labor and cost to perform the trimming.”

When McClelland referred to Ellis’ letter, Kleiman responded that BWL had submitted an affidavit from “a most learned gentleman in the area” who said that removing of all overhanging branches is necessary. Kleiman added that “it’s a little selfish to say” that you don’t mind putting up with the occasional power outage to save your trees if your trees down wires that cause power outages to neighbors.

Kleimann suggested, as he has before, the judge grant wide latitude to BWL for trimming around its lines. Today he referred to legal precedent in Michigan allowing a company to clear away all vegetation within thirty feet of its pipeline.

Tree-trimming by power companies has become a significant property rights issue across the country. In Michigan, as The Detroit News has reported, a lawsuit has been filed by Bloomfield Hills residents against DTE Energy regarding allegedly overly-aggressive trimming.

The Lansing State Journal reported yesterday that BWL’s General Manager Dick Peffley “said some of the worst damage” from Friday’s storm “occurred in areas where residents have tried to prevent the utility from cutting back trees around power lines.” In a segment entitled, “Neighborhood doesn’t want trees trimmed,” WILX provided video of Peffley suggesting that the Glencairn neighborhood experienced prolonged outages following Friday’s storm because the neighborhood has supposedly resisted BWL’s efforts to cut.

Glencairn did experience some outages during the storm, although Crittenden’s area did not lose power, nor did it lose power during the ice storm of 2013. This past weekend, BWL’s outage map indicated the most prolonged and widespread outage was in the Brookfield Plaza/Southeast Marble area. One resident from Chesterfield Hills told ELi that an outage in that neighborhood occurred because of a downed tree which BWL had marked for removal, and the property owner had given permission to remove over a year ago.

There seem to have been few complaints on social media or in the traditional media about the outages from Friday’s storm. By contrast, many praised BWL’s communication during this storm, as well as the company promptly bringing in outside crews to work on restoration. We reported earlier today that East Lansing Councilmember Erik Altmann, who lost power at his Bailey house during the storm, praised BWL on both these counts.

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, 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.