Utility companies interpret generic language allowing them to “destroy” or “control” vegetation to include the use of herbicides on private property. However, neither the easements nor Michigan Law require the utility companies to provide actual notice to property owners about the use of herbicides.
Generally, utility corridors or easements include a lengthy list of verbs describing the actions that they can take on property. For example, Vegetation Management Easements acquired by International Transmission Company (ITC) in Washtenaw, Oakland and Wayne Counties include the following provision: “The purpose of this Easement is to provide each Grantee with the perpetual right to enter at all times upon Grantor’s Land to cut, trim, remove, destroy or otherwise control any or all trees, bushes or brush now or hereafter standing are growing within the Easement Area.”
The easement itself never mentions the use of herbicides upon private property. However, ITC interprets words such as “remove,” “destroy,” or “control” to allow use of herbicides. The easement does not contractually obligate ITC to forewarn property owners prior to the use of herbicides.
Unfortunately, Michigan Law does not impose any such requirements. The Michigan Administrative Code does govern the use of herbicides and contains specific language relating to a right-of-way, which would include a utility transmission quarter. The Administrative Code does require “documented efforts to provide prior notifications to persons who own or reside on property that is within the target area.” However, publication in the legal notice section of a local newspaper is sufficient to meet that requirement. Therefore, from a practical perspective, no true notice is required because it is highly doubtful that property owners are regularly scanning the legal notice sections of all of the general circulation newspapers in the area to identify when herbicides may be used.
While it is true that the types of herbicides used are regulated by the State of Michigan, many property owners view the use of herbicides as offensive. Indeed, even people who may employ yard services that use herbicides would be troubled by the lack of notice. Yard services universally post notices in treated yards forewarning people to stay away for some period of time.
The use of herbicides may have greater impacts upon particular types of properties. For example, herbicides used in the vicinity of livestock could cause health problems for the animals.
The use of herbicides is one of many examples of the hidden impacts of a partial taking acquisition that property owners may not understand. For that reason, it is critical to consult with an attorney specializing in representing owners who can help identify these types of issue and the impact they will have on a particular property.
Please feel free to contact me if you have any questions.