By Kevin Kelley
Cleveland Division of Water’s plans to bill Westlake customers at least $291 per quarter in additional charges for the next five years is causing harm to residents today, attorneys for the suburb argued in Cuyahoga County Common Pleas Court Monday.
Westlake is asking Judge Michael Astrab to issue a preliminary injunction against Cleveland’s planned billing, which it says is needed to pay for infrastructure costs associated with a possible departure of the suburb from its water system.
Attorneys representing Cleveland said the current water service agreement allows it to charge higher rates to customers who have taken steps to leave the system. In his opening statement, Rob Hanna said because the only way Cleveland can recover costs associated with the departure of a municipal customer is through rates. Therefore, he said, the contract contains “a low bar” to define what steps constitute leaving the system. The water system’s other customers should not be required to pay for costs associated with Westlake’s possible departure, he said.
Even before the opening statements, the judge commented that the section of the contract allowing for rate changes for customers taking steps to leave the system is vague. “What is a step toward leaving the water system?” the judge asked.
Dennis O’Toole, an attorney hired by Westlake for the case, said Cleveland’s claim that it can recover stranded infrastructure costs is nowhere in the water service agreement. He added that a memorandum of understanding that was signed by the parties at the same time as the water service agreement is “critically important” to the case because it limits the agreement to 25 years and said Cleveland may not be the exclusive water supplier to Westlake. This makes the section of the water service agreement calling for higher rates for those leaving the system meaningless, he said. Besides, he argued, Westlake has not taken definitive steps to leave the system.
Todd Danielson, the chief utilities executive for Avon Lake Municipal Utilities, testified as a witness for Westlake, saying the suburb has no deal in place to purchase water from his agency. Asked by O’Toole if Westlake officials have said the suburb intends to break off its relationship with Cleveland Water, Danielson replied negatively.
“The mayor [Dennis Clough] has often said, ‘I would like to buy water from both [ALMU and Cleveland],’” Danielson said.
Westlake was looking into the feasibility of purchasing water from ALMU, Danielson said. He also testified that such inquiries by municipalities are not uncommon.
In his cross-examination, Hanna questioned Danielson about various meetings he had with Westlake officials and a draft agreement ALMU sent Clough. Noting that an early consultant’s report spoke of a “switch” of Westlake water suppliers from Cleveland to ALMU, Hanna apparently hoped to show Westlake’s actions were more than mere inquiries but, in fact, concrete steps to leave the Cleveland water system.
Westlake’s first three witnesses were seniors citizens living with fixed incomes. Westlake Law Director John Wheeler asked each about their reaction to the Sept. 30 letter from Cleveland Water informing them of their charges.
“It made me feel mad,” said Ronald Johnson, a 71-year-old resident who received donations from a community food pantry while raising his great-grandson. “I can’t afford it.” He said he would have to cut back on groceries and medicine if forced to pay the additional water charges.
Carol Grooms, who serves as treasurer of her condominium association, said the additional water charges would require an increase of $45 in the monthly maintenance fees charged to condominium owners.
Audrey Sheffler, who lives in one of those condominiums, said she cannot afford the higher maintenance fees. She testified concern over the pending fees caused her to delay the purchase of a new mattress. The concern over the fees also had made her worry that she’ll lose her condo.
“That’s my biggest concern,” she said. “Am I going to lose my home and end up homeless?”
Westlake attorneys need to prove irreparable harm will be caused if the preliminary injunction against the water fees is not issued by the court. Wheeler’s questioning of the Westlake senior citizens was an attempt to show that harm.
In his opening statement, Hanna said Cleveland officials acknowledge that the $291 quarterly fees will be a heavy burden on Westlake’s residents, but did not meet the criteria for irreparable harm under Ohio law. He said great harm would come to Cleveland Water’s other customers if the water system is not able to recoup infrastructure costs associated with Westlake’s possible departure. Westlake has the right to seek other water suppliers but must understand that there are consequences associated with those actions, Hanna said.
Cuyahoga County Common Pleas Court was closed Tuesday due to extremely cold temperatures. The hearing will resume today at 10 a.m. with Westlake City Engineer Bob Kelly as the next witness.