By Kevin Kelley
Mayor Dennis Clough said he is overjoyed that his residents will not have to pay $291 per quarter in additional water fees for the next four years.
On Friday, 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 the additional charge. Cleveland officials said the added fees were necessary to pay for costs associated with Westlake’s alleged plans to leave the city’s regional water system.
On nearly every legal issue, the judge found in favor of Westlake, often panning Cleveland’s justification of the planned fees. The judge’s 37-page opinion can be viewed as nothing short of a huge legal victory by the suburb.
Astrab did not rule on the question of when Westlake’s water service agreement with Cleveland’s Division of Water ends, an issue that plays an important role in the dispute between the two municipalities. That question, and a determination by the court of the other obligations Westlake has should it cut ties with Cleveland Water, will come at a later date.
The judge’s ruling followed five days of courtroom testimony in early January.
Cleveland’s billing plans were based on a section of the water service agreement allowing additional charges against customers “who have taken steps toward leaving the Cleveland water system.” Astrab noted the water service agreement does not define steps toward leaving the system, and resorted to using Merriam-Webster’s online dictionary to determine the meaning of the phrase.
The judge noted that Clough repeatedly sought from Cleveland officials a proposal by which the suburb could become a master meter community, or bulk purchaser, of water from Cleveland. The possibility of transitioning from a direct service customer to a master meter community is specifically provided for in the water service agreement, Astrab noted.
Astrab said Cleveland did not act in good faith and paid “lip service” to Westlake’s requests to negotiate master meter status. The judge also concluded that Westlake’s efforts to become a master meter community did not constitute a step by Westlake to leave the Cleveland system, an issue on which even two high-ranking Cleveland city officials disagreed during testimony.
Cleveland’s attorneys argued that Westlake’s discussions with Avon Lake Municipal Utilities about becoming a water supplier constituted a step toward leaving the Cleveland system. But Astrab said Westlake officials were simply showing prudence and due diligence in fully investigating alternate supplier plans.
“The decision to evaluate one’s supplier of water is not on the same level as swapping the company that provides ink to the city’s printers,” the judge wrote.
“In other words,” Astrab later went on, “Mayor Clough was doing his job by putting together working teams and engaging consultants and analysts to ascertain those options and to generate reports detailing the specifics of what it would take to get the job done, or if getting the job done would be in the best financial interests of the taxpayers of Westlake.
“The Court believes that Westlake had and has every right to investigate all of its options with regard to its water supply and should be permitted to do so without fear of having its citizens subjected to increased charges prior to a final decision even being made. The chilling effect of such precedent could be enormous and could lead to municipalities not considering options/alternatives that may in the end be in the best interest of their taxpaying citizens.”
In his opinion, Astrab repeatedly found that Westlake had not taken steps to separate itself from the Cleveland water system.
“With no separation (of Westlake from the Cleveland water system), there are no costs to be incurred,” Astrab wrote. “As such, how can the citizens of Westlake be charged for something that has not yet happened?”
The judge also found that Cleveland’s justification for the amount it planned to charge Westlake customers was “not shown to be sufficiently accurate” and included “inconsistencies in calculation.” The judge said testimony revealed discrepancies between a 2007 report and another from 2013 listing capital improvement projects from which Westlake benefited over the years. Cleveland sought to recoup some of the costs of those projects through the additional fees it planned to charge Westlake customers.
Astrab also found merit in Westlake’s argument that charges associated with a potential separation sought against Westlake customers were or should have been considered included in the premium fees levied against the system’s suburban customers.
“Those rates had a risk premium built into them,” said Dennis O’Toole, the attorney who represented Westlake in court.
O’Toole said Westlake will likely soon ask Astrab to issue a ruling on the remaining legal issues that divide the suburb and Cleveland, such as the specific length of the current water service agreement.
Clough said Cleveland’s position never made sense.
“Why would we be penalized simply for looking at alternatives?” the mayor asked.
Clough still thinks it makes sense for Westlake to have two water suppliers, and hopes Cleveland will offer a proposal in which the suburb would become a master meter community.
“We always wanted to have Cleveland as a supplier,” Clough told West Life.
Cleveland officials have consistently said they are not willing to mix their water with that of another supplier.
Cleveland law Director Barbara Langhenry issued this statement Friday afternoon in response to the judge’s ruling:
“We are disappointed and respectfully disagree with Judge Astrab’s ruling,” Langhenry said. “The cost recovery charge related to the City of Westlake taking steps to leave the Cleveland Water system is a business decision designed to protect our remaining customers. We are considering all of our available legal options to protect the rate payers in the more than 70 other communities in the Cleveland Water system.”
Astrab’s injunction against additional billing of Westlake residents will remain in effect until a further order from the court. Cleveland had planned to mail the bills to Westlake residents this month.