Notification of Vegetation Maintenance Activities for Transmission Rights-of-Way
Testimony of State Representative Josh S. Cutler
September 17, 2013
Chairwoman Ann Berwick, Commissioner Jolette Westbrook, Commissioner David Cash, Mass. Department of Public Utilities
I want to thank you for this opportunity to submit comments on the Department’s proposed regulations to establish requirements for Notification of Vegetation Maintenance Activities in Transmission Rights-of-Way.
As both a state legislator concerned with safe energy transmission practices and as a homeowner with a transmission right of way on my own property, I appreciate the difficulties associated with this process. It is clear that a great deal of time and thought has gone into these draft regulations.
I would also like to acknowledge the challenges facing our public utilities, for whom we demand exactingly high standards –– 100% uptime, zero interruptions, plentiful energy supply at affordable rates, with of course zero inconvenience to us. An impossible standard to be sure.
These draft regulations will help to improve the communication process to make future vegetation management events smoother and less disruptive to homeowners.
I believe, however, that there are additional steps that can be taken to further improve the notification process and it is in that spirit I offer my comments today.
Before I do so I would like to publicly offer my thanks to Chairwoman Berwick, Commissioners and Members of the Department and especially Nancy Stevens and her staff for your assistance, cooperation and communication this past summer as we worked to keep our constituents informed during what for many homeowners in my community became a tense and frustrating vegetation removal process. Your assistance was, and continues to be, deeply appreciated.
Let me dive into the substance of my comments. Fundamentally my concern with the existing practice and the draft regulations as proposed is the standard of notice – in short it’s not high enough. Currently a homeowner enjoys a higher standard of notification when their neighbor down the street builds a swimming pool than when a public utility comes on their own private property and removes an apple tree that has born fruit on their property for decades. That should not be the case.
To address this inequity I offer the following recommendations:
1) The definition of abutter under Section 22.02 is too narrowly drawn and does not include many parties who are impacted by a vegetation management plan. I recommend using the “Parties of Interest” standard found MGL Chapter 40A, Section 11, which is the same standard every city and town must follow for a special permit application. This standard includes not just immediate abutters, but owners of land directly opposite on any public or private way and abutters to the abutters within 300 hundred feet of the property line. It also specifies that the abutter list should be culled from the most recent applicable tax list – an important requirement, especially if the regulations are to allow a “good-faith” exemption which is not found in the public notice requirements under Chapter 40A, Sec. 11.
2) The requirement for 30-day notice by first class mail is a welcome regulation. Door tags are helpful but they are easily lost, misplaced or rained on and should not replace U.S. Mail as a formal form of notification. However the regulations should specify that both the homeowner and the current resident receive notification. In some cases non-owner occupied properties or out of town homeowners in my community did not realize what was going on with the vegetation management plan until much later in the process, which in turn created more distrust and conflict.
Just as importantly notice should include the dates when vegetation management is to occur and cease. In some cases homeowners were notified in early June and vegetation removal did not occur until mid August. It’s important to remember that we are talking about bringing heavy duty trucks, chainsaws and tree cutting equipment onto private property, in some cases right in people’s backyards where their children play, ride their bikes or play in treehouses. Not knowing from one day to the next whether these trucks and equipment might appear makes for a difficult summer. A reasonable start and end date is not asking too much.
3) Part of the vegetation management process often includes removal of city or town-owned vegetation, or vegetation in a scenic right of way. This type of removal usually triggers review by a local planning board, tree warden or other municipal board. Abutters, or Parties in Interest, should also receive notice of such action. Simply posting on a local telephone pole, as illustrated in the attached photo, is not sufficient. In many cases removal of vegetation in scenic byways can be as harmful as removal on one’s own property.
4) Notification regulations should also include a requirement for the marking of specific trees and vegetation areas to be removed or reduced. This occurred in many instances, but not all. The process needs to be uniform so that all homeowners will be aware and have opportunity to review what specific changes are proposed on their property before they are made. Since Public Utilities are not required to conduct land surveys or stake out properties prior to tree clearing to ensure the area they are cutting is actually within the right of way, this is a critical requirement for the notification process.
5) The log of notification attempts should be made available to municipal officers not just on request, but as a matter of course. This will assist cities and towns in handling incoming resident inquiries and offer an important check on the process.
6) There is no mention of herbicides or pesticides in the draft regulations. I recommend more stringent notification requirements prior to the application of any chemicals in vegetation treatment areas.
No amount of regulation can solve all potential conflict, especially in the arena of property rights, and certainly the needs of homeowners must be considered in view of the broader public policy goal of protecting our electricity transmission in a safe, reliable and economically viable fashion. These draft regulations, and the additional comments I have offered today, will go a long way to improve this process.
Again, I thank the Department for its time both today and the many hours of work leading up to this hearing. On behalf of my constituents and colleagues your efforts are deeply appreciated.
Josh S. Cutler
6th Plymouth District
State House, Room 39
Boston, MA 02133