January 24, 2013The stronger tree preservation ordinance that the Greensboro City Council has indicated it wants to pass in response to a recent rash of neighborhood clear-cutting by Duke Energy seems to be in limbo
Councilmember Nancy Vaughan said she objects to the fact that Duke Energy has representatives on the work team that presented recommendations to the council on Jan. 15, because the team may be involved in developing the tree preservation ordinance.
"I think it should be made up of different stakeholders," she said.
"We have to make sure the community is well represented," Vaughan said.
While Vaughan said she acknowledges the necessity of some of Duke Energy's line-clearing activities, she said, "We have to realize that this is a situation of Duke's making."
"To me what's happened is they did neglect their trimming and now they're coming back and we are bearing the brunt of that," she said.
Vaughan said she would be in favor of an appeals process for residents whose trees are targeted for pruning or removal.
"An ordinance without an appeals process isn't quite as strong as I'd like to see," she said.
According to the franchise agreement between Duke Energy and the City of Greensboro, Duke Energy is required to obey the ordinances of the city. However, whether or not that franchise agreement would give Greensboro the legal authority to order Duke Energy, which is regulated by the North Carolina Utilities Commission (NCUC), not to cut down trees is less clear.
In a memo to councilmembers, City Attorney Mujeeb Shah-Khan wrote, "We understand that if there is a conflict between a municipal ordinance (such as a tree protection ordinance) and NCUC's decisions or orders, related to the furnishing of utility services, the NCUC's decisions or orders will control."
Shah-Khan said that if the City of Greensboro told Duke Energy not to cut down a tree, Duke could comply by pruning the tree drastically but leave it standing, or they could go to the NCUC to argue that the city's order conflicted with their ability to deliver power.
Shah-Khan compared the relationship to a child asking his mother for something, being denied, and asking his father to get a different answer.
"They can always go to their authority figure to decide what conflicts," he said.
Shah-Khan said the city is one of several authority figures over Duke Energy. He went on to say that Duke Energy answered to NCUC as well as the Federal Energy Regulatory Commission.
Shah-Khan said the city hoped that enhanced communication would prevent the need for legal disputes. He said Duke Energy had been very cooperative with the city, even agreeing to suspend residential tree cutting operations. "They didn't agree the first time but the second time we said stop, they did," he said.
The first request came in the form of a letter to Duke Energy asking them to suspend line-clearing operations for 90 days, and was ignored. The second request came in the form of a resolution by the City Council to issue a cease-and-desist letter, a letter that was never issued.
Duke Energy District Manager Davis Montgomery said he was unsure about where things were left after the last council meeting, and what the role of the work team, of which he is a member, would be going forward.
Montgomery said, "What we are trying to get is a fair and balanced solution," saying it needed to balance the need to deliver safe reliable power and the interests of property owners.
He said that power distribution is a statewide issue and that Duke Energy and the city need to consider broad issues, not just those in Greensboro.
He said there are "sensitive customers," like data centers, that can be adversely affected by even momentary blips in power and that the reliability and history of electric power could affect the decisions of companies considering coming to Greensboro.
Montgomery said he thought it was important for Duke Energy, the work team and the City Council to stay engaged throughout the process to work through the issues, and he said it was unfortunate that the City Council had not been in on the work team discussions.
On whether Greensboro can tell Duke Energy not to cut down a tree, Montgomery said, "Under current recommendations that would be a collaborative discussion," but said that a tree that presents a "clear and present danger" to power delivery would have to be cut down.
He said that high voltage transmission lines are particularly important, and have their own set of regulations.
He also said that some possible parts of a tree ordinance like "a very revised clearance ordinance" would have to go before NCUC before Duke Energy could agree to it.
Montgomery declined to say when Duke Energy would resume normal tree trimming work in Greensboro neighborhoods, but said that information may be released in the next couple of days.
Deputy City Manager Jim Westmoreland, who has been spearheading the city's effort to resolve the conflict between Duke Energy and property owners, said the purpose of a stronger Greensboro ordinance would be to codify long-range plans and communication and establish clearer definitions of Duke Energy's practices like pruning and debris removal. However, he said that Duke Energy has all the authority they need to maintain utility lines.
At the Greensboro City Council meeting on Jan. 15, Westmoreland introduced the work team, with representatives from city staff, citizens and Duke Energy, that presented recommendations for improving the process by which Duke Energy and the city go about line clearing.
Most of those recommendations had to do with better notification of property owners that their trees would be trimmed or removed, not giving people any recourse or an appeal process.
Critics of Duke Energy's treatment of Greensboro residents and their trees have pointed to the Raleigh tree protection ordinance as an example of legislation that balances the interests of residents and the need to maintain utilities.
Staff and the work team are looking at that ordinance as well as ordinances from Cary, Chapel Hill, Charlotte and Durham.