Judge rules natural gas co. can take down trees
Residents, township fought to protect large trees near pipeline
BY VINCENT TODARO
Staff Writer

EAST BRUNSWICK - Despite a legal battle waged by a group of residents and the township, a natural gas company has won the right to cut down trees along Timber Road.

In a June 1 ruling, state Superior Court Judge Amy Chambers dismissed the residents' case in a summary judgment before it could come to trial. The decision will allow Transco, a Tulsa, Okla.-based company that transports natural gas along the eastern seaboard, to cut down 19 mature trees near their underground pipeline on the residential road.

Chambers stipulated, however, that the trees must be cut down in phases, at six a year over three years.

"Such a time frame will give the homeowners time to plan and set aside money for new trees and vegetation to counter the anticipated loss of all of the trees, and will help to minimize the impact on the neighborhood," the judge wrote in her decision. The trees can come down sooner if required by an "emergent safety issue," however, she said.

The ruling was a setback for the residents of Timber Road, who partnered with the township in the legal battle to seek a permanent injunction.

Residents of the road, between Dunhams Corner Road and Farms Road Circle, were unpleasantly surprised when they learned in 2005 that Transco wanted to cut down the large trees in order to prevent damage to the protective coating of the pipeline by tree roots, and to ease the company's ability to inspect its underground natural gas pipeline. Without the trees, Transco could inspect the pipelines from the air, rather than sending people out to walk the road.

The trees are on township property, though Transco has easement rights.

Residents argued that losing the trees would negatively impact the character of the neighborhood, as well as property values and the environment. They won an earlier court injunction that stopped Transco from removing the trees last year, though some were cut down before the residents began their fight.

Transco argued it needed to cut down the trees for security of the pipeline, and that as owner of the easement, it had an absolute right to remove the trees. It also said in court papers that the trees create an impression the area is not a right of way, and thus could lead to third-party damage.

Chambers wrote that a high burden must be met before a judge can issue a summary judgment to dismiss such a case. The judge would need to view evidence "in a light most favorable to the party opposing the motion."

"This court finds that no material facts have been presented that require a trial," she wrote. "After a full trial, at great expense and time to the litigants, this court would be faced with the same essential facts."

Chambers ruled the language governing use of the easement is unambiguous in that the owner of the easement can remove trees "which may interfere with the operation and maintenance of the pipeline."

The general language of the easement allows Transco to remove the trees for convenience.

"Defendant may remove the trees because it is convenient to do so in order to keep the right of way clear, making visual inspection easier," she wrote.

It is clear, as the township and residents argued, that there is no evidence the tree roots in question are harming the pipeline, but testimony was also clear that such a scenario is possible, Chambers said.

"The potential problems presented by the trees must be considered in light of the grave threat to human life and property that a ruptured pipeline presents to the public," she wrote.

The township also argued that because of Transco's delay in removing the trees, the court should apply the "laches" concept. That would mean Transco lost its easement rights to the trees because of "an inexcusable delay in asserting a right."

The trees were planted in the early 1980s, and it was only recently that the company took steps to remove them. Chambers, however, said that Transco's delay was "understandable" because "it is responding to its increased knowledge of the danger of tree roots and the impact of trees on its operation."

She also wrote that the East Brunswick case is different from a recent case in Piscataway, where a pipeline company was barred from removing trees on its easement. In the latter case, the easement rights were much more restrictive than in the East Brunswick case.

Timber Road resident Steven Weinberg said he still feels the points that residents made are "legitimate," and there are additional points that could be brought out in the case.

"It was shocking to us that we didn't get a trial," Weinberg said.

A decision on whether to appeal has not yet been made, Weinberg said, but the residents' attorney, Steven Cahn, of Edison, has asked Transco to hold off on cutting down trees until a decision is made on further court action.