City Allows BWL to Cut Trees without Required Permits; Tree Resolution to Be Considered Tonight

ELi has learned that City of East Lansing staff has been allowing BWL to trim and cut down trees in East Lansing without the permits and oversight required by the City’s own municipal code.

This news comes as tonight City Council will consider a resolution in support of the trees, raising the question of whether such a resolution would, in practice, also be disregarded by City staff.

Cathy DeShambo, Environmental Services Administrator for the City of East Lansing, acknowledged in communications with me that the City’s municipal code specifies that the City is supposed to annually issue permits for utilities seeking to cut trees on City property and that the City is supposed to oversee that cutting to make sure the practices are appropriate. But, she says, in practice the City does not follow the code.

Section 48-39 of the code, “Trimming Permits for Public Utilities,” specifies that:

The city engineer shall annually issue permits granting permission to public utilities to trim, and keep trimmed, all trees within the streets, alleys, parks, and public places of the city, in such a manner as shall keep the overhead lines of such public utilities safe and accessible. Such trimming shall be done in accordance with approved practices and under the general direction of the city engineer. Said permit, as provided for in this section, shall require reasonable prior notice to the city before any work is commenced thereunder, provided however, that in the event of an emergency requiring immediate maintenance work on the overhead lines of said public utilities, prior notice of commencing work under said permit shall not be required. The word "emergency," as used in this section, shall be defined to mean the occurrence or happening of an event which could not be foreseen by the exercise of reasonable care and foresight, which might cause damage to the overhead lines of the public utilities.

But DeShambo told me, “It is my understanding that permits have not been required of the utility companies (BWL nor Consumers) who maintain utility lines in the City.” According to DeShambo, “It is my understanding that this part of the code has never been enforced with the utilities working in East Lansing in large part because they have a legal right to maintain their utility lines and are required by MPSC [Michigan Public Service Commission] to do so.”

As ELi has previously reported, BWL is not regulated by MPSC and MPSC has no power over BWL because BWL is owned by the City of Lansing.

The City staff’s decision to ignore Section 48-39 of its own municipal code means there has apparently been no required oversight by the City to make sure the trimming is done “in accordance with approved practices,” the nub of the issue with critics who say BWL’s cutting practices are overly aggressive and sometimes simply unreasonable. Critics insist they are not anti-trimming, they are pro-reasonable trimming. (Read more.)

DeShambo’s message suggested that City Attorney Tom Yeadon is likely tonight to tell the City Council the City cannot enforce its own municipal code because BWL allegedly has unencumbered legal rights and a duty to trim the trees near wires.

Another section of the municipal code, Section 48-31, speaks to the City’s duty to oversee the cutting of trees, specifically empowering the City Engineer “to superintend, regulate, and encourage the preservation, culture, and planting of trees, plants, and shrubs upon public rights-of-way and public parks in the city, and to direct the method and time of trimming the same.”

But DeShambo says this restriction is not meant to regulate BWL’s practices, only the practices of property owners or hired contractors: “I believe that the language you have cited [in the municipal code] pertains more to protecting trees by requiring contractors or residents to obtain permits before disturbing City owned trees or trees covered by the ordinance.”

Who is the “city engineer” who is supposed to be issuing permits and overseeing cutting? According to DeShambo, the Director of the Department of Public Works (DPW) serves as the City Engineer. A new DPW Director, Scott House, has just begun the job.

All parties seem to agree that electrical utility BWL’s neglect of line maintenance for many years endangers East Lansing’s electrical grid. In response to criticisms on this point from two external reviews, BWL has instituted a “vegetation management” program. But the execution of the program has caused significant tension with a number of homeowners because, according to homeowners who have been trying to negotiate to save particular trees on their properties, BWL is being more destructive than necessary.

As ELi has reported, BWL lacks written easements for the work they seek to do, which means there is nothing in writing to specify BWL’s rights and the limits thereof. BWL insists it has an unquestionable right to cut.

Some homeowners in East Lansing are now receiving sharply-worded legal notices from BWL saying they will be taken to court if they will not let BWL cut at will without further discussion.

Citizens wishing to speak on this or any other matter before Council are advised to arrive promptly by 7 pm because public comment is typically accepted only at the start of City Council meetings.

Disclosure: Alice Dreger lives in the Oakwood neighborhood and the trees of her immediate neighbors are affected by BWL's cutting program. Her spouse, Aron Sousa, serves on the Historic District Commission and has advocated for historic tree protection in that venue.

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