Lawyer: Homeowners lose rights in court’s tree-cutting decision

By Peter H. Milliken

Tree-cutting ensures safe and reliable electric service, utility spokeswoman says.

COLUMBUS — An Ohio Supreme Court decision that the Public Utilities Commission of Ohio has exclusive jurisdiction in tree-removal disputes in electric utility easements on homeowners’ property will deprive homeowners of their day in court, a local lawyer said.

“I’m very surprised and disappointed,” said Atty. Raymond DeLost, who is embroiled in a legal battle with Ohio Edison Co., whose tree-cutters chopped down 14 white pine trees last summer in its easement in the backyard of DeLost’s Struthers residence.

“Landowners can no longer go to court and get their cases heard in a court of law before a judge and a jury,” DeLost said. “Instead, you have to file a complaint with the Public Utilities Commission of Ohio,” in Columbus, where such a filing would be inconvenient and cost-prohibitive for most homeowners, he added.

The PUCO has no authority to award damages and it “has a very cozy relationship with the utility companies,” DeLost said. There’s nothing to prevent a utility from cutting first and getting a PUCO ruling later, he added.

A spokeswoman for First Energy Corp., parent of the Cleveland Electric Illuminating Co., which was the victor in the Ohio Supreme Court case, and parent of Ohio Edison, praised the top court’s ruling.

“We’re pleased that the court upheld our easement rights. It’s important that we maintain a clearance around our equipment to ensure safe and reliable service for all of our customers,” said Ellen Raines, First Energy’s director of external communications.

“The best message we can send to our customers is not to plant trees anywhere near the electrical equipment. That’s the best way to avoid situations such as this,” Raines added.

Thursday’s 4-3 decision overturned rulings by the Cuyahoga County Common Pleas Court and the 8th District Court of Appeals that such disputes are contractual and, therefore, subject to state court jurisdiction. In an unusual move, two of the three justices in the top court’s minority wrote separate dissenting opinions.

The Cleveland area case, cited as Corrigan vs. Illuminating Co., involved a dispute between homeowners, Dennis and Mary-Martha Corrigan of Brooklyn, Ohio, over CEI’s notice that it intended to remove a mature silver maple tree within the utility easement at the back of the Corrigan’s residential lot.

Writing the majority opinion, Justice Judith Ann Lanzinger cited with approval last year’s decision by the 7th District Court of Appeals in Youngstown in DeLost’s case that the PUCO has sole jurisdiction over a tree-cutting matter.

The appeals court case here pertained to a lawsuit brought by DeLost that sought to bar Ohio Edison from further tree-cutting in the company’s easement for high-voltage transmission lines that crosses DeLost’s property.

A separate suit by DeLost and his wife, Maria, that seeks compensatory and punitive damages from OE for allegedly violating court restraining orders against cutting the couple’s trees before the dispute is resolved, is still pending before Judge Maureen A. Sweeney of Mahoning County Common Pleas Court.

Concerning yet another lawsuit, DeLost said he would have to discuss with his client, Wayne Wilson of Lisbon, how to proceed in Wilson’s quest for compensatory and punitive damages after OE cut down trees in its easement over Wilson’s land.

DeLost said he will research whether the Ohio Supreme Court decision presents any federal legal issues.

, such as those concerning due process of law, that could be raised in federal court.

HOW THEY VOTED

Tree removals

Ohio Supreme Court ruled that the Public Utilities Commission of Ohio, not the courts, has final jurisdiction on tree- removal disputes over electric company utility easements on homeowners’ properties.

Majority opinion: Chief Justice Thomas J. Moyer, Justice Judith Ann Lanzinger, Justice Evelyn Lundberg Stratton and Justice Maureen O’Connor.

Dissenting opinions: Justice Terrence O’Donnell, Justice Paul E. Pfeifer, and Justice Robert R. Cupp.

Source: Ohio Supreme Court