Judge tosses lawsuit, allowing power company to cut trees in Pittsfield Township neighborhood
A group of Pittsfield Township neighbors lost a legal battle to save dozens of trees along their properties from being cut by a power company.
Washtenaw County Circuit Judge Melinda Morris dismissed a lawsuit this week brought by 26 residents of Beech Drive to prevent International Transmission Holdings Corp. from removing several arborvitaes lining their backyards.
Morris initially set a trial date for Friday, but granted the power company’s request to throw the case out based on a prior ruling that firmly established ITC’s property rights.
The decision concludes a dispute that started late last fall when ITC blanketed the neighborhood with flyers indicating the trees must be cut to protect power lines that run above the tree line.
A judge's dismissal of a lawsuit filed by homeowners on Beech Drive means the power company can begin cutting these trees.
Art Aisner | For AnnArbor.com
The residents filed suit in February after several other attempts involving township government officials couldn't stop crews from cutting the trees. Morris issued a moratorium on cutting and ordered mediation. But the parties couldn’t reach an agreement in June, meaning the case was headed for a non-jury trial, court records show.
ITC, which received the property from DTE and owns the land on which the trees sit, argued the company must comply with federal mandates to keep power lines clear and safe from vegetation, and the trees are a potential hazard.
After Morris’ August ruling reaffirmed ITC’s property rights and discretion to cut, the company argued there was nothing left to settle at trial.
“The court’s ruling dismissing the homeowners’ complaint validates ITC’s easement rights and will help ensure that we can continue to maintain the safety and reliability of the transmission system,” said ITC spokesman Rob Darmanin.
The residents, many of whom planted the trees when they bought their properties decades ago, say the trees provide vital screening to homes on neighboring Helen Street. They also believe the trees are critical to maintaining property values and, if removed, will negatively change the character of the neighborhood. They, along with township officials, offered to maintain the trees to ensure they are at a safe distance from the lines during negotiations, but they were denied.
Attorney Walter Hamilton, who represented the neighbors, declined comment to AnnArbor.com, but in court documents accused ITC of having an arbitrary cutting policy that lacks regard for the property owners they impact.
He provided several examples using the current properties that show projected gaps between tree height and power line sag rates that are within federal standards for at least the next two decades.
It is unclear when the company will return with crews to begin cutting. But residents said they are prepared for the worst.
Some also said the ruling was expected, particularly after Morris’ earlier decision.
Still, many had hoped for their day in court. Cheryl Wasson, who hired an independent forester to inspect the trees adjoining her property, said there would have been expert testimony showing that the trees could be trimmed without killing them or causing them to be removed.
“That was really our whole point from the start, that they didn’t have to take such drastic action,” Wasson said. “They’re just bullies who don’t want to answer to anyone.”
Art Aisner is a freelance writer for AnnArbor.com. Reach the news desk at news@annarbor.com or 734-623-2530.
Comments
krc
Wed, Sep 29, 2010 : 10:44 a.m.
Better than looking into a whole row of back yards, Basic Bob.
MI-expatriate
Mon, Sep 27, 2010 : 10:15 p.m.
@Ypsilivin, So tulips are now dangerous to the public safety too? How about grass? Should there be a law about just dirt being present in the utility easements? What if dandelions and thistle grow there on their own? What if a coyote scats? Just wondering.... Also, my apologies, you are correct, it is a "green" ash that is being attacked by the emerald ash borer. It is one of 14 ash species listed in my Michael A. Dirr "Manual of Woody Landscape Plants" but since I planted mine 12 years ago when I wanted a disease-free tree given my non-native Michigan plant knowledge upon moving here, I had forgotten the common name given all the emerald ash references of the last few years. My error, completely. There was no emerald ash borer present at the time, to my knowledge. @Basic Bob, Arbs are unattractive? Ask Lowe's or Home Depot which of their evergreen screening shrubs sells the fastest. They provide year-round green color, are attacked by few insects or diseases, provide great cover for wildlife, and are hardy and suitable to this climate. The biggest issue is that people let them get too big - they tend to split when the snow load gets heavy. It is a giant circle that could benefit everyone if done correctly - plant for screening, keep arbs at 8-10 feet max, staying out of utility lines so limbs don't drop upwards. Really quite simple; everyone wins. Having said all of that, I wish these homeowners had been cautioned about planting in the easement; I doubt they were by anyone. Now it is a judgement call, and a bad one at that.
Basic Bob
Mon, Sep 27, 2010 : 11:27 a.m.
@krc, A legal decision should not be based on casual observation by someone without a technical background (Judge Morris). It should be based on real legal rights (easements) and expert testimony. The homeowners only testimony was a sad story and a belief that mature trees don't grow and utilities don't need maintenance. As far as the arborvitae, they offer privacy but are actually quite unattractive from Helen Dr.
krc
Mon, Sep 27, 2010 : 9:48 a.m.
Melinda Morris again! She should have taken a field trip with a representative from the affected homeowners and one from the ITC and walked down the street where these shrubs are planted. Photographs just don't do it. It is patently ridiculous that she dismissed the lawsuit. Oh, and didn't we have a Summer with high temps for days running? Did the power lines sag down into the shrubs? Hmm. I thought not.
YpsiLivin
Sun, Sep 26, 2010 : 4:54 p.m.
MI-expatriate: There is no compromise here because the only thing that will be compromised is the public's safety. Anything (including arbor vitae) in the utility right-of-way is considered a nuisance, no matter what it is, when it was put there, how tall it is now, how tall it will be in ten years, who put it there, why it was put there or what it does for property values around the right-of-way. The utility company has the absolute right to manage and maintain the right-of-way in the manner it sees fit. The law was written as such to eliminate the need to negotiate every tree and tulip bulb with homeowners who are convinced that an exception should be carved out for them. And btw, there's no such tree species as the "emerald ash." Ash trees are being killed by the Emerald Ash Borer, named so because of its emerald green color and its predilection for ash trees.
AA
Sun, Sep 26, 2010 : 9:54 a.m.
Typical human behavior. The trees are no where near the power lines and won't be for many years. The homeowners offered to maintian the trees at a reasonable height at there expense, saving the company money and the neighborhoods trees. Why wouldn't this compromise work? Because we are all about winning now. Win win win. Win win win. Win win win. I now would use any money and effort to throw Morris out of her job. It is her job to offer justice. This is not justice. NOT.
GRANDPABOB
Sun, Sep 26, 2010 : 6:13 a.m.
When I tried to talk the trimmers into cutting down the trees next to the power lines coming to my house they said they weren't authorized to cut them down just trim them. These are 60 ft tall & probably 100 year old silver maple trees or older and are dying.If they fell into the power lines it would most likely be days before the lines would be repaired as there are only a few residents that would be affected.
MI-expatriate
Sun, Sep 26, 2010 : 12:25 a.m.
Oh Tom, just days ago I thought I saw you admitting to liking the couches on porches when you were a student but now realize how detrimental they are to property values via their hideousness - my words, not yours exactly. Am I wrong? Regarding tree huggers in general, if we were talking a row of silver maple, box elders, Austrian pine, weeping willow, even the formerly venerable emerald ash, I'd say cut away. But arborvitae? More a shrub than a tree, they can be topped and sheared. There was a compromise here; it just wasn't granted. Ann Arbor without trees, but with the University of Michigan, would be.......Flint.
Tom Joad
Sat, Sep 25, 2010 : 11:54 p.m.
Tree huggers, unite! You have a cause clbre, not really
MI-expatriate
Sat, Sep 25, 2010 : 10:13 p.m.
I appreciate your good information, chapmaja, but is there anything that grandfathered these trees in? - seems like the blackout you are referring to was much later than the build date on these properties. For privacy and property value, six to eight feet tall trees should cover it - if there's that much sag in the line we'd have kids swinging on them so forget about the trees. There's always room for compromise. I just don't think the utility company wanted to do it. People wonder why corporations are so despised; here is a good example.
chapmaja
Sat, Sep 25, 2010 : 8:36 p.m.
For all of you that are complianing about this, I suggest you look into the FEDERAL REGULATIONS that affect tree maintaince near power lines. The FEDERAL GOVERNMENT instituted stricter guidelines as a result of the massive balcout several years ago. The problem isn't tree limbs falling up, it's a problem with the power lines sagging down. High voltage power lines have a substantial amount of sag in them for a reason. They expand and contract with the temperatures. If you ever look closely at a power line on a winter day and compare with with the line on a hot summer day, you will see a major difference. The amount of electricity passing through the line at a given time also increases the sag of the line. Electricity passing through the line creates heat. The heat causes more sag of the line. On a very hot day, the lines potentially could sag into unmaintained trees, causing a power outage. The massive blackout several years ago started on a very hot day with little wind. The heat, combined with substantial engery use (AC) caused power lines to sag into the trees that were unmaintained. That eventually lead to a power line failure on that line, which in turn lead to a number of other problems which caused the blackout. The initial action however was a overused power transmission line sagging into unmaintained trees. The reason the wind is an issue is because wind is a major cooling source for the lines. The wind, as it passes over the lines cools the lines. No wind, no cooling. No cooling means increased sag. The other thing that can cause the sag into the trees is ice storms. When ice builds up, it can cause the lines to sag.
dading dont delete me bro
Sat, Sep 25, 2010 : 8:01 p.m.
i'd bet the power lines were there before the homeowner's built or bought there...
MI-expatriate
Sat, Sep 25, 2010 : 7:59 p.m.
Also wanted to comment that I appreciate the vote option at the end of an article that could use it, and the results showing with total number of voters. Plenty of people have opinions but only a few of us will subject ourselves to the possible repercussions by actually commenting.
MI-expatriate
Sat, Sep 25, 2010 : 7:45 p.m.
This would all make sense if the utility company were using A-frame ladders to repair downed power lines but we all know they use bucket trucks. These trees may be maxed out in height, but even if they are not, arborvitae can definitely be topped without any harm to them. They can easily be maintained at a height well below the power lines. Thanks for the "limbs falling up" comment Brad - it just shows how ridiculous companies can get in throwing their weight around. And for those wondering, yes, the removal of these trees will definitely affect property values negatively. We need more of that in Michigan?
YpsiLivin
Sat, Sep 25, 2010 : 6:49 p.m.
Ribs1 & Brad, You seem to be ignoring the fact that utility easements and right-of-ways are identified when the property is purchased. According to the law, home owners cannot plant, build or interfere with access to a utility right-of-way in any way, at any time, or for any reason. Also according to the law, the utility company has a responsibility to maintain a clear ROW. They have the authority to do that in any way they see fit. Anything that is planted, built or placed in the utility ROW is conclusively presumed to be a nuisance and is subject to removal without notice or compensation. The home owners agreed to these terms when they purchased the property. They knew they had a utility ROW when they signed the purchase agreements on their homes. They also knew that the law would not protect them when they planted the trees in the ROW. They planted anyway. They could have planted their trees outside the ROW and safely on their own property, but they chose to ignore the easement and plant their trees closer to the property line. They disobeyed the law when they "landscaped" the ROW and the utility company is obeying the law by clearing out the trees and maintaining the ROW in the way they see fit. Who's wrong here? (Hint: It's not the utility company.) Moral of the story: if you purchase a property with a utility ROW, know what you're purchasing and what you can/can't do in the easement.
Brad
Sat, Sep 25, 2010 : 6:30 p.m.
We are going to remove trees under power lines so as not to interfere with the servicing of the lines should they fall? That's like a 1/100,000 proposition if that.
ribs1
Sat, Sep 25, 2010 : 4:48 p.m.
ITC is just a bully. I hope these homeowners continue their fight. The homeowner owns the property, ITC just owns the easement. If the trees are currently not obstructing the power line, they should leave them.
YpsiLivin
Sat, Sep 25, 2010 : 2:31 p.m.
Brad, Tree branches don't fall up but power lines do fall down. When these lines fall, there's a good bet that they'll either land in the trees in question or that the trees will be in the way of the repair crews. The home owners knew they were planting in the utility right-of-way when they put those trees in "decades ago." This removal should have been done long ago.
Michigan Reader
Sat, Sep 25, 2010 : 12:37 p.m.
@Brad--I think the rationale for protecting power lines above the tree line is the potential growth of the trees.
Brad
Sat, Sep 25, 2010 : 12:20 p.m.
"must be cut to protect power lines that run above the tree line" Why's that? Do tree limbs fall *up* now?
pegret
Sat, Sep 25, 2010 : 11:11 a.m.
BigMike & tdw are absolutely right. I'm familiar with the neighborhood in question, and those trees are nowhere near the power lines yet, and may never be. Unfortunately, ITC seems more interested in using their 'power' to bully residents rather than work with them to come up with a solution that would be workable for the company, acceptable to the homeowners, and better for the environment. Like BigMike said, now everyone loses.
tdw
Sat, Sep 25, 2010 : 10:41 a.m.
Although I understand ITC's legal rights I'm still woundering why they want to trim/cut those trees.They're no where near the lines and pretty sure the trees are maxed out height wise
BigMike
Sat, Sep 25, 2010 : 10:31 a.m.
Here's a great example of where compromise would work well for all parties. If ITC would give the owners guidance as to how the trees should be trimmed, the owners could do it themselves to maximize the benefits they get from the trees, and ITC could save money not having to send their crews out. The way this played out, everybody loses.
Jason
Sat, Sep 25, 2010 : 10:23 a.m.
these people suing over the trees near the power lines would be the first ones calling dte to complain when the power goes out! I only wish they would come into my neighborhood and cut the trees out of the power lines, did we not learn anything in the Detroit fire storm?