One year, not five years, is all the notice Westlake would need to give to Cleveland Water should local officials ever decide to separate from that department.
That was the ruling July 20 by Cuyahoga Common Pleas Court Judge Michael Shaughnessy. The ruling was a victory for Westlake, though Cleveland can appeal.
The case involves a declaratory judgment action originally filed by Westlake in May 2012. In the lawsuit, Westlake asked the court to determine what the cities’ respective rights were under an agreement relating to the distribution of the water coming from Cleveland.
A declaratory lawsuit means the plaintiff, in this case the city of Westlake, is seeking clarification of a point of law, not seeking damages nor asking the court to take or order any specific action.
The court upheld the terms of the original contract, stipulating a one-year notice is required should Westlake decide to end its contract with Cleveland, which it isn’t planning to do, Westlake Law Director Michael Maloney said in a statement.
“I appreciate the court interpreting the contract as written,” said Mayor Dennis Clough.
“It is anticipated that Cleveland will file yet another appeal, adding to the already extraordinary time and expense of this case,” Maloney said.
Early in the case Cleveland sought more than $50 million from Westlake for what it called "stranded costs." This claim was rejected by the trial court and court of appeals, Maloney said, adding Westlake never pursued monetary damages from Cleveland.
The feud with Cleveland Water started when Westlake officials began to contemplate creating their own water department and disconnecting from Cleveland’s.
“We are just looking at our options,” said City Engineer Robert Kelly.
Westlake’s water system could be separated from Cleveland’s within a matter of days, Kelly testified during the recent trial. The effort would only take closing valves at over 50 points of connection with Cleveland.
Cleveland officials argued in court Westlake would need to undertake 115 tasks before disconnecting from Cleveland. Those would include gaining state regulatory approval, designing and constructing a water infrastructure and providing a means to supply water to surrounding communities.
Westlake could accomplish turning off valves quickly, Alex Margevicius, commissioner of Cleveland Water, told the court. But he added turning off valves would be the last step Westlake would need to take. The total project would need a little more than four years to complete, Margevicius testified.
In a previous ruling in the case, the Eighth District Court of Appeals held, “it is irreconcilable to require that notice be given five years in advance of an intent to terminate a one-year contract,” Shaughnessy noted in his formal opinion.
“The Court recognizes that the disconnection of a water system is more demanding than merely the turning of a valve or a flip of a switch,” he wrote. “Despite the complex nature of separating water systems, the Court is bound by contract law principles that mandate that a one-year contract cannot contain a provision that extends beyond its very terms. In accordance with the aforementioned, this Court holds that reasonable termination is one year.”
“Westlake has for years agreed to the very terms the court has set forth in its order,” Maloney said. “Cleveland would never agree to the simple, obvious solution arrived at by the court. I know Cleveland will not agree even now. There will be an appeal filed within days, mark my words. And the case will continue to hemorrhage legal fees for the City of Cleveland.”
A spokesperson for the city of Cleveland did not respond to requests for comment. Cost of the legal battle for Cleveland and Westlake was not readily available.
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