Judge Rules Against BWL in Tree Trimming Case

Thursday, August 4, 2016, 3:05 pm
By: 
Alice Dreger

Above: Judge Clinton Canady, far left, with others during the July 18 site visit.

Ingham County Judge Clinton Canady has ruled against the Lansing Board of Water and Light (BWL) in the utility’s lawsuit against East Lansing homeowners Richard and Conni Crittenden. BWL had been seeking to force the Crittendens to allow BWL to cut their trees as BWL’s foresters see fit. The Crittendens had agreed to trimming the trees near BWL’s lines in their backyard, but sought to use a less aggressive approach.

BWL had asked Judge Canady to grant a summary judgement against the Crittendens. But after visiting the Crittendens’ property and seeing the situation for himself on July 18, Canady did exactly the opposite, summarily finding against BWL. He also denied BWL’s request to have the Crittendens pay BWL’s legal costs in the matter, leaving BWL stuck with the company’s side of the lawsuit costs. (The Crittendens have to pay their lawyer for defending them.)

After learning of the ruling today, Richard Crittenden told me he was “relieved.” He said, “The first objective was to preserve the trees on our property, but I’ve said from day one our objective is also to have the Board rework its vegetation management plan in a way that takes into consideration not only their needs, but the needs of homeowners and what their preferences are with regard to their property.”

Crittenden previously told ELi that he believed the reason BWL had singled him out for a lawsuit was because he had produced and distributed yard signs warning BWL’s trimmers against coming onto private properties unless the company could produce evidence of a legal right to do so. The amount of money and attention spent on this case by BWL suggests BWL saw this as a test case for trimming in East Lansing.

Judge Canady’s ruling in the matter made vivid the importance of his visit to the backyard at issue. This visit, he noted, allowed him “to view the Maple [in dispute] extensively and its position relative to the power lines. In addition, the Court was able to observe firsthand where the Maple stood in relation to the other vegetation located on the property.” Canady noted that BWL already had obtained permission to cut down a mature elm tree shading the Crittendens’ yard.

The judge’s decision also notes that, “during the site visit, BWL pointed out a tree next to the Maple which had essentially the same type of trimming as BWL proposed to perform on the Maple at issue, and frankly, the condition of the tree significantly altered the aesthetic character and overall appearance of the Property.”

Canady’s decision records claims made by BWL’s forester and the Crittendens’ arborist and suggests the latter’s plan made more sense when taking “into account the BWL’s safety concerns as well as the homeowners’ interest in preserving the integrity and aesthetic value of the Property as a whole.” Canady noted that the Crittendens have lived in their Glencairn home for over forty years, “and the Maple appeared to be a major source of shade in the backyard.”

As the Crittendens had wanted, Canady ordered that the homeowners’ arborist trim the maple using end-weight reduction, to lessen the risk to the wires. BWL had wanted a more extensive approach, one the Crittendens’ arborist said could well mean the early death of the tree. By court order, the Crittendens will pay for the trimming, as they had initially offered to do.

Richard Crittenden told me today, “I sincerely hope this decision makes someone on the Board step up and say ‘maybe we need to look at this [vegetation management strategy] again.’ If that happens, that’s great.”

BWL has fourteen days to appeal the ruling. Contacted for a response to the ruling, BWL’s spokesperson did not immediately respond.

Update: After this article went to press, we heard back from Stephen Serkaian, BWL’s Executive Director of Public Affairs. He replied that until the most recent ruling, “Judge Canady’s rulings to date have affirmed the BWL’s position.” The judge had allowed: that BWL had an easement right on the property, including for equipment access; that, in Serkaian’s words, BLW has “the right to maintain its equipment as part of the easements includes the right to trim and remove vegetation”; and that, according to Serkaian, “the Crittenden’s may not impede or interfere with BWL’s right to access and maintain its equipment, which effectively renders yard signs denying BWL access unenforceable.”

Asked for a response, the Crittendens’ attorney, Greg McClelland, said, “All of his points are technically correct. However, the overarching issue in the case was BWL’s claim it could impose its [desire to] clear all overhanging limbs without consent or regard from its customers in East Lansing. It cannot.”

 

You may also be interested in:

 

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.