By Kevin Kelley
The third day of the Westlake water billing court hearing ended with comments by the judge that appeared to favor the suburb’s case on a key matter in the case.
At the conclusion of testimony Thursday, Cuyahoga Common Pleas Court Judge Michael Astrab said a May 2013 letter from Westlake Mayor Dennis Clough was not an official termination notice of the suburb’s relationship with Cleveland’s Division of Water. Cleveland officials had initially cited the letter as justification for billing Westlake water customers at least an additional $291 per quarter over the next five years for costs associated with the suburb’s departure from the water system.
Westlake is seeking a preliminary injunction against the planned billing from the court.
Astrab said he noticed that the water service agreement between Westlake and Cleveland states that an official termination notice must be sent by certified mail.
“I’ve got a 46-cent stamp on the letter,” the judge said as he looked at his copy of the letter and accompanying envelope in his binder of documents associated with the case.
“I’ll just tell you right now I’m not going to let that letter serve as the notice of cancellation that Cleveland interprets it to be because I don’t believe it was served properly, unless you can come up with a certified return receipt that shows it was mailed by certified mail,” Astrab told attorney Rob Hanna, who is representing the city of Cleveland.
Astrab said his conclusion about the letter was not the “death penalty” for Cleveland’s plans to bill Westlake water customers the additional fees but that the city’s attorney’s should take his opinion into account as the hearing continues. The judge noted the letter appeared to be one of the lynchpins in Cleveland’s defense of the planned billing of Westlake customers.
Hanna said another section of the water service agreement allows Cleveland to raise rates on customers who take steps to leave its water system.
“Whether [the letter] is proper notice or improper notice, we received that letter,” Hanna told the judge. “And that letter is the culmination of all the other information, and the combination of that is a step toward leaving the system.”
Clough’s letter, dated May 2 and addressed to Paul Bender, Cleveland’s director of public utilities, stated “this letter will also serve as official notice that the City of Westlake cannot and will not continue with the purchase of water from the City of Cleveland after the expiration of the 25 year period … However, as stated in previous correspondence, we would certainly entertain a competitive proposal and a new agreement to purchase potable water in bulk from the City of Cleveland.”
The Westlake mayor has contended he never intended the letter to serve as a termination notice. Rather, he said, it references the fact that Westlake’s charter prohibits any utility contract from extending beyond 25 years.
Clough later retracted the letter. But Cleveland officials did not drop their plans to bill Westlake residents and businesses the additional charges. They said years of exploring the purchase of water from Avon Lake Municipal Utilities constituted steps to leave the Cleveland water system.
Earlier in the day, Clough testified he retracted the letter to prevent Cleveland from misinterpreting the letter as an intent by the suburb to leave the water system. He said he thought his retraction would cause Cleveland to drop the additional charges against Westlake residents and businesses.
In his cross-examination of the Westlake mayor, Hanna spent considerable time questioning Clough about the May 2 letter and other correspondence between Westlake and Cleveland officials during the summer of 2013.
Also on Thursday, Alex Margevicius, Cleveland’s interim commissioner of water, testified that a departure by Westlake from the Cleveland system would have detrimental effects on water service to the suburb’s neighbors.”
“Bay Village, for example, has seven points of connection, six of which come from the Westlake direction, but only one of which comes from [the east],” Margevicius said. “If Westlake were to separate and the systems be totally severed, Bay Village would be relying on only one connection. We feel that’s highly inappropriate and insufficient for Bay Village.”
In such a case Cleveland would need to install an additional seven main pipes into Bay Village, Margevicius said. Cleveland officials have said they need the money from the planned additional billing of Westlake customers to pay for this infrastructure work.
The hearing will continue Friday with more witness testimony.
DEEP FREEZE: The supply and pressure problems Avon Lake Municipal Utilities experienced during the recent polar vortex did not cause Clough to doubt it as a potential supplier of water for Westlake. In fact, he said it underscores his desire for redundancy in the supply of water.
“That’s the reason why we want two sources of water,” Clough told West Life. The Westlake mayor has said he would like the option of purchasing water from more than one supplier, such as Avon Lake Municipal Utilities and Cleveland’s Division of Water.