Concerned Pastors for Soc. Action v. Khouri

• Decision Date: 24 February 2023
• Docket Number: 16-10277
• Parties: CONCERNED PASTORS FOR SOCIAL ACTION, MELISSA MAYS, AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, and NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiffs, v. NICK A. KHOURI, FREDERICK HEADEN, MICHAEL A. TOWNSEND, JOEL FERGUSON, MICHAEL A. FINNEY, SYLVESTER JONES, and CITY OF FLINT, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

CONCERNED PASTORS FOR SOCIAL ACTION, MELISSA MAYS, AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, and NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiffs, v. NICK A. KHOURI, FREDERICK HEADEN, MICHAEL A. TOWNSEND, JOEL FERGUSON, MICHAEL A. FINNEY, SYLVESTER JONES, and CITY OF FLINT, Defendants.

No. 16-10277

United States District Court, E.D. Michigan, Southern Division

February 24, 2023

ORDER GRANTING PLAINTIFFS' FIFTH MOTION TO ENFORCE SETTLEMENT AGREEMENT

DAVID M. LAWSON, UNITED STATES DISTRICT JUDGE

The City of Flint continues to miss deadlines for completing the water service line replacement work it promised to do when it entered into a Settlement Agreement on March 28, 2017. Those original deadlines have been extended several times. Among the tasks that the City promised to perform were to identify and replace lead service lines for thousands of Flint residences, restore the property after the excavations, and furnish reports of its work. In their continuing efforts to secure the Agreement's benefits to the residents of Flint, the plaintiffs have filed their fifth enforcement motion, alleging that the City has violated and is violating the agreement by (1) failing to complete the remaining required service line excavations and replacements by the latest Court-ordered deadline of September 30, 2022; (2) failing to track and maintain records of the addresses where the City has completed restoration; (3) neglecting to provide timely monthly reports, including cumulative lists of all addresses where the City has completed restoration; and (4) failing to complete the remaining required restoration work.

The defendants do not dispute these allegations. After the motion was filed, the parties agreed to most of the relief proposed by the plaintiffs, with one exception. A dispute remains regarding a proposed procedure for remedying the City's incomplete restoration efforts.

The Court held a hearing on the remaining disputed item on February 15, 2023. The City argued that the remedial measures proposed by the plaintiffs would expand its obligations beyond that called for by the Settlement Agreement and would create an intolerable burden on its limited resources. However, the City put itself in this position by its mismanagement of the service line replacement process, it has grossly exaggerated the “burden” that would be imposed by the inspection and notice procedures proposed by the plaintiffs, and those remedial measures are well within the means available to the Court to enforce the Settlement Agreement it has been supervising for almost five years. The plaintiffs' fifth motion to enforce the Settlement Agreement will be granted.

I.

The plaintiffs filed their latest enforcement motion on November 1, 2022, pointing out the failures listed above. The parties have agreed to most of the plaintiffs' proposals to address these concerns, but a dispute remains over a proposed procedure for inspecting and restoring certain property excavations.

The Settlement Agreement initially required the City of Flint to complete service line excavations for at least 18,000 eligible homes in Flint and replace those lines composed of lead or galvanized steel by January 1, 2020. In August 2020 adopting a stipulation of the parties, the Court modified the Settlement Agreement to establish a new, November 20, 2020 deadline by which the City would complete all remaining excavation and replacement work. Aug. 2020 Modification Order, ¶ 1, ECF No. 217, PageID.10409. The modification specified that “completion of an excavation or service line replacement includes completion of restoration work at the address,” ibid., and required the City to report monthly cumulative lists of the homes where restoration work had been completed, id. at ¶ 7, PageID.10413. However, the City has failed to furnish monthly lists to the plaintiffs; it has provided a cumulative list of restored homes only twice, most recently in July 2021. See May 2021 Notice of Violation, ECF No 242-2, PageID.11374; October 2022 Notice of Violation, ECF No. 242-4, PageID.11377.

In April 2022, the parties again stipulated to a new deadline - September 30, 2022 - for completing all excavations and service-line replacements. Again, the Court approved the modified deadline. Apr. 2022 Modification Order, ¶ 1, ECF No. 237, PageID.11071. Based on the parties' stipulation and the City's efforts to re-bid its restoration contracts, however, the Court did not modify the deadline for completing restoration work. Instead, the parties broadly agreed that “[t]he City shall complete restoration at every address where it has conducted or conducts an excavation pursuant to the Settlement Agreement, as modified.” Id. at ¶ 2. They also agreed that they would later jointly file a stipulation specifying an agreed-upon modification for the restoration deadline. Id. at ¶ 6, PageID.11074-75. Because no such stipulation has been filed, the plaintiffs now invoke the Settlement Agreement's dispute resolution provisions to ensure the City's compliance with its restoration obligations. See ibid.; 5th Mot. to Enforce, ECF No. 242, PageID.11109.

The City acknowledges that, as the result of certain decisions made from 2017 through 2019 regarding restoration activities, its recordkeeping is incomplete, and it does not know the exact status of restoration at certain previously-excavated addresses. See Resp., ECF No. 248, PageID.11560; October 2022 Notice of Violation, ECF No. 242-4, PageID.11380. It has suggested to the plaintiffs that the only way for it accurately to assess the scope of restoration work remaining is to visually inspect thousands of previously-excavated homes to confirm whether restoration in fact was completed and retroactively deem homes restored. The City therefore agreed to take certain actions in response to the plaintiffs' fifth motion to enforce the Settlement Agreement to demonstrate completion of its obligation to restore the lawn, curb, sidewalk, and driveway at the addresses where it has excavated and replaced service lines. See Stip. to Modify, ¶ 16, ECF No. 256, PageID.11625-26. For each address where restoration has been completed as called for by the Settlement Agreement, the City will provide either contemporaneous documentation of completed restoration or make an in-person visual inspection. Id. at ¶ 16, PageID.11625-26. The visual inspection shall verify that

(a) no asphalt, concrete, or other debris remains; (b) the address has a complete, uniform sidewalk with no gaps or holes, and the sidewalk is uniform in both grade and alignment; (c) the address has a complete, uniform driveway with no gaps or holes, and the driveway is uniform in both grade and alignment; (d) the address has a complete, uniform curb, with no gaps or missing pieces, and the curb has a uniform grade and alignment; (e) the lawn is free of holes or trenches and is of a uniform grade, with no visible depressions; (f) any visible topsoil on the greenbelt or lawn is free of debris and the greenbelt or lawn has a consistent and uniform plant cover; and (g) the water shut-off valve is flush with the surface of the lawn and does not pose a tripping hazard.

Idi. at PageID.11626-27. The City also has agreed to take a photo or photos to document the condition of the property, to provide the plaintiffs with the photos upon request, and to make monthly reports to the plaintiffs of the restored homes. Ibid. With each monthly report, the City will provide the plaintiffs with any emails and any logged calls it received during the reporting period from residents concerning the visual inspections. Id. at ¶ 18, PageID.11628.

In addition to this agreed-upon relief, the plaintiffs propose a notice requirement: They ask that the Court order that, if the City conducts a visual inspection of an address and determines that no further restoration is needed, the City leave a door hanger at that address notifying the resident of its determination. 5th Mot. to Enforce, ¶ 6, ECF No. 242, PageID.11121. The plaintiffs further propose that the City take and maintain a photo of every such door hanger left on a residence and include on the door hanger a City phone number and email address that residents may use to contact the City if they disagree with the City's determination or have any questions. See Stip. to Modify, ECF No. 256, PageID.11629-30. By the plaintiffs' accounting, there are approximately 6,000 residences in Flint where the City lacks a contemporaneous record of restoration. Rolnick Decl., ¶ 4, ECF No. 242-2, PageID.11128-29. The owner of one such residence, Sidney Hemphill, submitted a declaration stating that the City twice dug up her front yard and sidewalk to replace, then fix, her service line in 2019. Hemphill Decl., ECF No. 257-3, PageID.11650-51. The City never returned to restore Hemphill's property or otherwise communicated with her. Ibid. Hemphill states that she would like to be notified if the City decides that it will not complete restoration so that she can contact the City to protest its decision and decide whether to complete the restoration work herself. Id. at PageID.11652.

The City opposes the new proposed door hanger notice procedure as unduly burdensome and outside the parameters of the Settlement Agreement. In support of its argument, it presented an affidavit of its Director Public Works, Michael J. Brown, attesting that the requirement would “impose an undue and heavy burden on the City.” Brown Aff ¶ 9, ECF No. 248-1, PageID.11564. Brown explains in the affidavit that the extent of the restoration issue is unknown, as is the number of employees that would be needed to print door hangers and personally deliver them to thousands of addresses. Id. at ¶¶ 10-11. He also explains that it would be...