March 07, 2013Duke Energy is opposed to almost every meaningful provision of Greensboro's proposed tree protection ordinance, including an appeals process and civil penalties for violating the ordinance.
City staff outlined the provisions of the city's current draft of the tree protection ordinance and where Duke Energy disagrees at the Monday, March 4 meeting of the Tree Ordinance Review Committee of the Greensboro City Council in the council chambers.
The ordinance proposed by the city would apply to both public and private property, includes a process for residents to appeal tree removals to an advisory commission on trees and levels civil penalties against utilities that violate the ordinance.
Duke Energy has also produced a draft ordinance. It is much less restrictive, contains no appeal process and does not include fines. Duke Energy representatives say they plan to submit a revised ordinance but have yet to do so.
The Duke Energy draft does allow the city to issue a stop work order in response to violations, and requires amendments to Duke Energy's annual vegetative management plan to be approved by the city. It also contains provisions for required notifications and communication between Duke Energy, the city and residents.
In an email sent to Greensboro City Attorney Mujeeb Shah-Khan on Feb. 20, Kendrick Fentress, an attorney for Duke Energy, explained why Duke rejected several of Greensboro's proposed provisions.
On the appeals process Fentress wrote, "The appeals process in the Proposed Ordinance will likely lead to unacceptable delay and expense in DEC's [Duke Energy Carolina's] maintenance of its distribution lines."
Residents and councilmembers have consistently advocated for the right to appeal a tree's removal since the controversy first began in December.
Fentress also wrote that the ordinance should not apply to private property because the franchise agreement between Greensboro and Duke Energy does not include private property.
"In addition, including private trees in this Proposed Ordinance would likely interfere with DEC's easement agreements with private property owners or its service regulations that allow DEC the ability to access private property in order to provide service," Fentress wrote.
In a response sent Feb. 27, Shah-Khan wrote, "Additionally, the City would note that in the February 26, 2013 Joint Work Team Meeting, Duke Energy representatives made a commitment that Duke Energy would not remove any tree on private property without the property owner's permission."
Then in an email sent March 1, Fentress responded that Duke Energy did not object to its own more lenient draft of the ordinance being extended to trees on private property.
Duke Energy has also expressed reluctance to remove tree debris and grind stumps after completing line clearing, which has been a common request of residents.
In a March 1 email to Shah-Khan, Fentress wrote, "Grinding stumps and the debris removal requested by the city would increase Duke Energy's costs to serve the city, without any corresponding increase to our ability to provide safe and reliable service."
Fentress also said that imposing civil penalties for violating the ordinance would introduce costs that would eventually have to be passed on to Duke Energy's North Carolina customers.
At Monday's meeting Assistant City Attorney Brian Leonard characterized the disagreements between the city and Duke Energy as "opportunities for resolution," and said discussions were ongoing.
Several residents also took the opportunity to weigh in on what the tree ordinance should include.
Jeff Nimmer, a member of the Greensboro Board of Adjustment and a resident of Crestland Avenue, said that communication was not the only issue residents had with Duke Energy. "The standards in the new ordinance and the restrictions are what's important, not just communication," he said.
Jack Jezorek, vice president of the Westerwood Neighborhood Association, said that he had felt bullied throughout the process. However, he said he was not representing the neighborhood association.
"I have to say I'm feeling a little uneasy despite all the work that's going on here; I'm feeling a little queasy about this," Jezorek said. "Apparently a lot of the things that we believe and residents of Greensboro believe are kind of getting bumped aside a little bit of time in these successive drafts."
Ben Andrews, a resident of Woodlawn Avenue, said, "I'm the guy whose property got chopped down, and why we've all stopped to have this discussion." Andrews asked to see the right of easement that Duke Energy had for his property. "If there is one I've never found it," he said.
Earlier in the meeting Shah-Khan said that Duke Energy has said it's difficult to produce proof of easement for individual properties along distribution lines, and instead appeals to its broad right to do what is necessary to maintain power distribution.
John Farmer of Courtland Street also commented on the right of easement. "My deed does not reflect a right of easement and that ought to have legal standing," he said. "This bland assertion of a broad right should not be accepted by the council."
Emilie Sandin of Crestland Avenue said that Duke Energy's lines should conform to some extent to the trees around them. "Duke Energy needs to plan for the right line in the right place too," she said, referring to Duke Energy mantra of "the right tree in the right place."
Sandin suggested that Duke Energy run lines underground or better insulate them.
Vance Arnold, the chair of the Piedmont Plateau chapter of the Sierra Club, criticized Duke Energy's policy of removing decaying trees near power lines. "Internal rot in a tree does not necessarily mean that the tree is dying," he said. Arnold referred to 600-year-old hollow olive trees in Israel.
Duke Energy District Manager Davis Montgomery addressed Duke Energy's agreement with the city to resume customer requested tree cutting.
Montgomery declined to say where Duke Energy would be cutting, or identify the customer that requested the work beyond saying that it is a utility.
Montgomery said Duke Energy had sent invitations to affected property owners for a community meeting at its operation center on Fairfax Road, but that only one resident attended the meeting.
Councilmember Nancy Hoffmann asked in what neighborhood the trimming would take place.
Montgomery refused to answer the question. He said there is "sensitivity around customer projects." He said he wasn't sure whether he should reveal the information or not.
Councilmember Marikay Abuzuaiter asked why, if there had been community workshops on the cutting, the location couldn't be given. Montgomery repeated that there was sensitivity around customer projects.
Councilmember and committee chair Nancy Vaughan later commented, "Duke Energy still stumbles over the basic communication."
Councilmember Yvonne Johnson, the fourth member of the committee, was absent.