By Kevin Kelley
The city of Cleveland plans to appeal a judge’s ruling that blocked it from billing Westlake water customers at least $291 per quarter in additional fees for the next four years.
“After considering all of our available options to protect the rate payers in the more than 70 other communities in the Cleveland Water system, we have determined that an appeal of the injunction is necessary and proper to protect those rate payers,” read a statement from Cleveland City Hall Thursday.
Maureen Harper, chief of communications for Cleveland Mayor Frank Jackson, said there would be no comment from city officials beyond that statement.
On Feb. 7, Cuyahoga County Common Pleas Court Judge Michael Astrab granted the city of Westlake’s request for a preliminary injunction against Cleveland’s plans to bill the suburb’s water customers. Cleveland officials maintained that the added fees were necessary to pay for costs associated with Westlake’s alleged plans to leave the city’s regional water system. Cleveland had planned to send Westlake residents and businesses bills with the additional fees last month.
In a sharply worded opinion, Astrab found that Westlake had not left the Cleveland water system, not even “taken steps to leave,” as Cleveland officials had argued.
“There is no evidence before this court that states that Westlake is affirmatively separating from Cleveland Water Division,” Astrab wrote.
While the judge’s ruling was firmly in Westlake’s favor, some issues were left undecided, such as when the current water service agreement between Cleveland and Westlake ends. Westlake is still seeking a permanent injunction against Cleveland’s planned billing.
Attorney Dennis O’Toole, who has been handling much of the litigation on behalf of Westlake, said he was surprised that Cleveland is appealing a preliminary injunction.
“An appeal (by a case party) on a preliminary injunction is very rare,” O’Toole told West Life. He added that he does not believe an appeal is appropriate.
O’Toole said he could not comment further because he has not seen Cleveland’s motion and does not know on what legal basis the appeal is being made. He said Cleveland could merely be reserving its right to appeal.
The attorney said it is unclear whether the appeal will delay Westlake’s pursuit of a permanent injunction from Astrab.
“We are proceeding as planned, absent some order to the contrary from the trial court or the court of appeals,” O’Toole said.
During five days of courtroom testimony in January, Cleveland’s attorneys had argued that engineering studies commissioned by Westlake on the feasibility of obtaining water from Avon Lake Municipal Utilities, as well as meetings with officials from that utility, were a concrete indication of the suburb’s plans to leave the Cleveland-owned system.
Alex Margevicius, Cleveland’s interim commissioner of water, testified that a departure by Westlake from the Cleveland system would have detrimental effects on the system and its ability to provide water service to the suburb’s neighbors. Westlake was obligated to pay for steps to rectify those adverse effects, Cleveland argued, as well as pay for investments Cleveland has made to the system that benefited Westlake.
Westlake argued that no legal or contractual grounds existed to justify making the suburb pay for those costs.
Astrab ruled that the proposed fees, as calculated by Cleveland, were based on flawed or incorrect data. The judge also ruled, as Westlake argued, that Cleveland’s regular water fees may have covered the costs Cleveland was now trying to recoup.