Ask ELi: BWL and Your Trees—What Are Your Rights?

Thursday, October 13, 2016, 7:57 pm
By: 
Alice Dreger

Above: Richard Crittenden at his East Lansing home with the yard sign he designed.

ASK ELi: At ELi, we run a regular service called "Ask ELi to Investigate." You send us your questions and we try to find out the answers. Today we are dealing with the question of what rights property owners have with regard to BWL's tree trimming and tree removal.

Background: East Lansing homeowners Richard and Conni Crittenden refused to allow BWL to cut trees in their backyard the way BWL wished to do. The Crittendens were not refusing to have the trees trimmed, but they wanted the trees cut according to their own arborist’s recommendations, believing their arborist’s approach would keep the wires safe while also doing less damage to their property. BWL proceeded to sue the Crittendens. We reported on the suit against the Crittendens and the outcome.

With the lawsuit over (unless BWL appeals the ruling), BWL is now planning to restart tree-trimming and tree-removal in East Lansing, specifically in the Chesterfield Hills and Bailey neighborhoods, starting on November 1. We have been getting questions from ELi readers about what their rights are with regard to challenging BWL’s plans for their own properties in light of the lawsuit’s outcome.

We asked the Crittendens’ attorney, Gregory L. McClelland of McClelland & Anderson, LLP, to help us explain.

It’s important to understand that a lot of this case was about easements—what legal rights BWL had with regard to the Crittenden’s private property. In this case, the Crittendens questioned whether BWL had lawful (written) easements giving the company the right to come onto their property and cut in the fashion BWL wished to do.

Did Judge Clinton Canady’s ruling in BWL’s suit against the Crittendens have implications for East Lansing properties other than the Crittendens’, or was it a ruling made narrowly about that property?

McClelland says that BWL sought, in the case, “a blanket determination that it had lawful easements for access and maintenance (including trimming of trees) for the entire subdivision in which the Crittendens’ property is located,” namely in the Ardson Heights subdivision of the Glencairn neighborhood.

But, McClelland explains, “The judge did not grant such relief [to BWL]. None of Judge Canady’s rulings in this case with respect to the existence and scope of an easement for BWL have any application to any other property, just the Crittendens’ property.”

That means you still have the right and ability to ask BWL for written proof that they have a legal easement to do the type of trimming and cutting the company seeks to do on your property. Explains McClelland, “The specific rights of BWL with respect to an easement on a property in East Lansing (assuming such an easement is recorded and exists) will turn on the specific terms of the easement for each property.”

Are BWL’s rights to cut vegetation on private property limited?

McClelland says that “the BWL does not have an unlimited right to trim and remove vegetation that interferes, threats and overhangs BWL’s equipment. As evidenced by the Crittenden decision [by Judge Canady], the rights of BWL must be reasonably balanced with the rights of the property owner.”

So, you probably don’t have infinite say over what cutting happens around wires that run across your property, but neither does BWL.

In the Crittendens’ case, “BWL’s right to trim and remove vegetation was limited to reduction pruning and not blanket removal of branches overhanging BWL’s equipment.” The Crittendens successfully convinced the judge that their arborist’s planned approach was reasonable.

Who will pay for the trimming if your own arborist is allowed to do the work?

The judge ruled that the Crittendens themselves have to pay for their arborist’s trimming in their yard, which the Crittendens had always offered to do anyway. Homeowners who let BWL cut do not have to pay for the trimming.

Did the judge rule that homeowners could not display challenging protest signs like those designed and produced by Richard Crittenden?

Richard Crittenden made yard signs that 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!” Over a hundred homeowners in East Lansing obtained signs from him and many still display the signs in their own yards.

According to Steve Serkaian of BWL, in the lawsuit, “the Court found that the Crittendens may not impede or interfere with BWL’s right to access and maintain its equipment, which effectively renders yard signs denying BWL access unenforceable.”

McClelland disagrees: “The statement in the signs is not rendered unenforceable by Judge Canady’s ruling. Judge Canady’s ruling is strictly limited to the specific terms of the easement which was granted to BWL at the time the [Crittendens’] subdivision was platted,” many decades ago. So homeowners can still demand to see proof of easement rights from BWL, whether with a yard sign, a letter to BWL, or verbally.

So, can a homeowner, after this ruling, still challenge BWL’s trimming plans for their own property?

Yes. McClelland elaborates: “A homeowner can challenge BWL’s specific trimming plans for their property. Their likelihood of success in challenging those plans will depend upon the specific terms of BWL’s easement on the homeowner’s property (assuming there is one) and the reasonableness of an alternative trimming plan offered by the homeowner.”

McClelland notes that each case is different: “In some respects, the likelihood of successfully challenging the BWL’s trimming plans will depend upon the facts in each homeowner’s case.”

How can you find out more?

You can learn about BWL’s vegetation management program at the company’s site. The company will be holding an open house next Monday, October 17, 2016, at the Hannah Community Center to answer questions about its program; read more.

Richard Crittenden has offered to speak with individual homeowners about his own experiences. To reach him you can use our contact page and we will forward your message to him. Greg McClelland’s website provides his firm’s contact information.

 

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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 reported 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.