Fellow Mortals files injunction against ATC

Town, attorneys say company is not exempt from needing permission to clear-cut trees

By Michael S. Hoey
Correspondent

American Transmission Co. was scheduled to begin clear-cutting trees last week on the property of Fellow Mortals Rehabilitation Hospital at W4632 Palmer Road in the Town of Geneva.

The action was delayed by a court injunction attorney Robert Kennedy filed that was originally set to be considered Monday.

Kennedy said the hearing set for Monday before Judge Philip Koss of the Walworth County Circuit Court was changed to a short status hearing because, he said, ATC has indicated it could not be ready to fully present its case on such short notice. Kennedy said another hearing would be scheduled at that time.

ATC has owned an easement along its power lines that run through Walworth County since 2001. Until now the company has periodically pruned trees that have gotten too close to power lines. Alissa Braatz, corporate communications representative for ATC, said the company has been moving over the past several years toward a policy of removing trees rather than pruning them. Braatz said the policy is about safety for ATC workers and the public and is designed to prevent power outrages that are often caused by contact between trees and power lines.

Yvonne Blane, co-founder of Fellow Mortals, has said the new policy is unnecessary and is not required by any law or federal regulation. She said it is a business decision by a private company that will hurt her non-profit animal refuge and several other property owners. Blane said the clearing of the trees along the frontage of Palmer Road will greatly reduce the buffer that is so important between the ever-increasing traffic on Palmer Road and her rehabilitating animals.

Blane said that while the easement rights do give ATC the right to cut down the trees, she was unaware of that when she and her husband purchased the land in 1985, and no one has cut down any trees since a previous company first acquired the easement in 1970.

That, Kennedy said, is part of why he believes ATC cannot go through with its plans. Kennedy said the company is bound to act in a reasonable manner and cutting down all the trees on an easement on which that has never been done in the 46 years it has been owned would not be reasonable.

“It makes no sense,” he said.

The legal basis for the injunction he filed has to do with Town of Geneva Ordinance No. 58, which states “all tree cutting exceeding the limitations of Section C requires a permit from the Town of Geneva Planning Commission.” ATC has not and does not plan to apply for a permit.

“ATC does not believe that a permit from the Town of Geneva is required for the specific work that ATC plans to do on the Blane property and we do not intend to apply for one,” Braatz said.

“ATC has pointed out that the town’s ordinance clearly states, consistent with state law, that public utilities like ATC are exempt from obtaining a permit to remove trees and vegetation,” Braatz said. “ATC is a public utility regulated by the Public Service Commission of Wisconsin, which requires ATC to remove any trees that could cause safety issues or cause power outages.”

Blane and Kennedy said that is not true. They do not believe ATC is exempt from Ordinance No. 58, and they know of no federal law or regulation that requires the removal of trees.

The “exemption” Braatz has referred to reads: “Public or private utilities are required to inform the Town of Geneva Building Inspector previous to initiating any trimming or tree removal in the Town of Geneva.”

Braatz said ATC interprets that to mean the company is not required to get a permit, only to inform the town.

“That does not exempt them,” Kennedy said. “Absolutely not.”

Town Attorney Richard Torhorst agreed.

“Any party, including local governments, are required under the ordinance to obtain approval for clear-cutting beyond the clear-cutting permitted under the ordinance on residential properties for homesites and related use,” Torhorst said.

Braatz said that even if the local ordinance did not exempt ATC, state law and court precedent does, and they supersede local ordinances, though she did not cite which specific state statute or court precedent applies. Kennedy said that is because there are none.

Town Chairman Joseph Kopecky said he also believes ATC needs a permit.

“The fact that ATC is or isn’t actually a utility is an arguable point, but not of any consequence relative to the matter of clear-cutting as the Town of Geneva Ordinance 58 does not allow for clear-cutting by anyone except for certain clearly stated residential exceptions,” Kopecky said.

“ATC has been directed to request to be placed on the agenda for the Town of Geneva Plan Commission to set forth their intended plans for clear-cutting and appear at all appropriate meetings related to addressing those plans,” he said.

Kopecky said ATC has the right to trim trees along its easement without a permit but it has no right to clear-cut trees regardless of its status as a public utility. Kopecky said ATC must apply for a permit and appear before the Plan Commission. He had no idea if a permit would get approved as each one is reviewed individually.

“We are very grateful to the town chairman and the chief of police for their support,” Blane said.

“A local community should be able to decide what kind of community they want,” she said. “We are glad they decided to enforce the ordinance, an ordinance that applies to everyone.”

Blane also asked for the help of people who live near the Fellow Mortals property in reporting any suspicious activity. She said she received a voicemail that she perceived as threatening. In it an unidentified person claiming to be a former employee of ATC said, “There is no way to win the fight on this mess with them wanting to clear cut.” The caller suggested the Blanes have some endangered species planted on the property so ATC would have to leave it alone in the future.

“They are sadly correct that if you have any sparks it can start tree fires extremely quickly, so for your protection and your animals and saving money on your end since you don’t—are a non-profit, I am sorry to say this is what’s going to happen,” the caller said.

Blane said she took that as a threat that if she continues to fight ATC something could happen, and she filed a police report with the Town of Geneva Police as a result.

Blane also said The Time is Now to Help co-founder Sal Dimiceli also received a call from an anonymous caller. Blane said Dimiceli told her that after the call he dialed *69 and discovered that the number was blocked. The text of that call is as follows:

“Hello, I heard that you, Sal, of the Time is Now to Help, are friends with Fellow Mortals. You need to tell them that they are trying to take down Goliath and it’s not going to happen. If they do not behave and go along with ATC, they will not have any animals to care for.”

Braatz said ATC is not aware of anyone authorized to represent the company in making phone calls to Blane or Dimiceli.

“Since our interactions began with the Blanes, ATC staff have been patient, polite and professional, and we have offered solutions that balance the care and commitment they have for wildlife with our responsibility to ensure public safety and the reliability of the high-voltage transmission system,” she wrote in an emailed statement.

Blane said any misfortune that comes to the refuge’s property or inhabitants won’t be coincidental.

“If a fire starts unexpectedly, if an animal is injured or dies in an outdoor habitat, if anything at all happens on Fellow Mortals property, there will be no doubt it is because of this situation,” she said.


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