Kennedy v. City of Zanesville, Oh

Decision Date07 September 2007
Docket NumberNo. 2:03-CV-1047.,2:03-CV-1047.
Citation505 F.Supp.2d 456
PartiesJerry R. KENNEDY, et al., Plaintiffs, v. CITY OF ZANESVILLE, OHIO, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Rachel Kimberly Robinson, Kimberly M. Skaggs, Equal Justice Foundation, Kerstin Sjoberg-Witt, Shawn J. Organ, Jones Day, Stefan J. Schmidt, Stephanie R. Bostos Demers, Ohio Attorney General, Columbus, OH, Stephen M. Dane, Relman & Dane PLLC, Perrysburg, OH, Beth A. Wilson, Jennifer W. Steves, Cooper & Walinski LPA, Toledo, OH, Isabelle M. Thabault, U.S. Department of Justice, Housing & Civil Enforcement Section, Jennifer I. Klar, John P. Relman, Reed N. Colfax, Relman & Dane PLLC, Washington, DC, Marilyn Tobocman, Cleveland, OH, for Plaintiffs.

Douglas Paul Holthus, Michael Joseph Valentine, Paul-Michael La Fayette, Reminger & Reminger Co. LPA, Jessica K. Philemond, Mark David Landes, Isaac Brant Ledman & Teetor LLP, Columbus, OH, Scott Thomas Hillis, Cottrill Hillis & Small, Zanesville, OH, Mark W Baserman, Sr., Baserman Law Office, Millersburg, OH, for Defendants.

OPINION

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

This matter comes before the Court on the following motions for summary judgment: (1) Motion for Summary Judgment of Defendant City of Zanesville ("City"); (2) Motion for Summary Judgment of Defendants Washington Township, Clint W. Cameron, Paul R. Bunting and Douglas Culbertson ("Township Defendants"); (3) Motion for Summary Judgment of Defendants Muskingum County, Don Madden, Ed Kenily, and Dorothy Montgomery ("County Defendants"); and (4) Plaintiffs' Motion for Partial Summary Judgment on the Liability of Muskingum County for the East Muskingum Water Authority. After thorough review, this Court GRANTS Plaintiffs' Motion for Partial Summary Judgment; GRANTS the Township Defendants' Motion for Summary Judgment; and GRANTS in part and DENIES in part the City's and County Defendants' Motions for Summary Judgment.

II. BACKGROUND

Sixty-eight individual plaintiffs, the Fair Housing Advocates Association ("FHAA"), and the Ohio Civil Rights Commission ("OCRC") (collectively, "Plaintiffs"), filed this civil rights action against the City of Zanesville ("City"), Muskingum County ("County"), Washington Township ("Township") and individual elected officials from the County and Township, (collectively, "Defendants"). Plaintiffs claim that Defendants' had a policy, pattern, and practice of denying public water service to the individual Plaintiffs during the last fifty years because they are African-American and/or because they reside in a predominantly African-American neighborhood.

The individual Plaintiffs lived, at various times, in the Coal Run neighborhood located within the County and Township, and just outside the Zanesville city limits. The neighborhood includes approximately twenty-five homes, and historically the residents of Coal Run have been African-American. Currently, approximately eighty-five percent of the Coal Run neighborhood residents are African-American, while the County and Township both are over ninety-five percent white. Contaminated by years of mining in the area, the ground water in the Coal Run neighborhood is not safe for residential purposes. Prior to receiving public water service in 2004, Plaintiffs, therefore, used wells, hauled water, had water delivered to their homes, and even collected rain water and melted snow in order to have safe,, usable water for drinking, cooking, and bathing.

Because the factual allegations beyond this basic background diverge, the Court will set forth the facts as separately presented by Plaintiffs and Defendants.

A. The Facts Presented by Plaintiffs

According to Plaintiffs, the residents of Coal Run suffered under a decades-long discriminatory government policy of refusing to provide glean water to their neighborhood due to its racial makeup. Plaintiffs claim that Coal Run was surrounded by waterlines going to predominately white areas and Plaintiffs, despite repeated requests, were not permitted to connect to the adjacent lines. Plaintiffs contend that the City, County, and Township are all responsible for the waterlines that run through the County, and even though Defendants had the power and ability to bring water to Coal Run, they engaged in three broad forms of discrimination to deny the neighborhood water. First, Plaintiffs claim that Defendants regularly passed over the Coal Run neighborhood in favor of funding and constructing waterlines for, often more distant, white areas. Second, Plaintiffs state that Defendants, rejected or disregarded the numerous requests for waterlines to be extended into Coal Run, while at the same time pursuing projects in response to requests from white areas. Third, Plaintiffs claim that Defendants denied individual requests from Coal Run residents to connect to an existing line — the Old Adamsville Road line — while letting white homes connect.

1. Defendants' General Roles in Providing Water to Coal Run

Plaintiffs assert that all Defendants had a responsibility to provide water to Coal Run residents. First, Plaintiffs state that the City supplied water in two ways: (1) since the 1930s, the City regularly constructed water projects in various areas adjoining the City; and (2) from 1956 until 2004, the City operated and controlled the Old Adamsville Road line, which served white residences on Adamsville Road and down Langan Lane, both of which border the Coal Run neighborhood. Plaintiffs state that, for the first forty-two years of the Adamsville line's existence, the City partnered with the Washington Rural Water Authority ("WRWA") in the operation of the line, and obtained exclusive control over it in 1998 when WRWA dissolved.

Second, Plaintiffs assert that the County was also responsible for providing residential water services. Plaintiffs state that in 1967, the County created the East Muskingum Water Authority ("EMWA") as an independent water authority, and the EMWA constructed water projects throughout its jurisdiction over the following thirty-six years. The County advocated for water services for various predominantly white areas since at least 1978, and the County began funding and constructing water projects throughout the County in 1990. In 2000, the County acquired a portion of the EMWA and began increasing efforts to bring water to County residents. Plaintiffs assert that in 2003, the County acquired the EMWA in its entirety and, by doing so, expressly assumed the EMWA's liabilities as part of the acquisition.

Finally, Plaintiffs state that Washington Township encompasses the Coal Run area. Plaintiffs claim that, starting in approximately 1995, the Township began making substantial efforts, including through legislation and advocacy, to obtain water for some of the predominantly white areas of the Township, while at the same time ignoring Plaintiffs' requests.

2. Plaintiffs' Timeline for the Provision of Water in Muskingum County

Plaintiffs state that discriminatory provision of water in Muskingum County began in 1954 when the City and the WRWA instituted plans to build the Old Adamsville Road waterline. Plaintiffs claim that the City approved the line and supervised construction, which stopped just before the Coal Run neighborhood. Before the installation was complete, Plaintiffs claim that Coal Run residents began asking to have the line extended to their neighborhood. Moreover, Plaintiffs' efforts continued even after the line was in place. Plaintiff Marvin Kennedy testified that he attended multiple meetings in 1954, 1955, and 1958, where he and other Coal Run residents sought water. Plaintiff Rodney Hale stated that he contacted WRWA representatives throughout the 1950s and 1960s requesting that water be run into the Coal Run neighborhood and received no response or was told that the line was too small to include Coal Run. Plaintiff John Paul Mayle testified that his father requested water in the late 1950s or early 1960s from a City official. Moreover, in 1963, Plaintiff Richard Kennedy, Sr., attended a meeting at the Township fire station where he and others specifically asked to be connected to the City and WRWA waterline. Plaintiffs claim they were told that it could not be done. From 1954 to 1967, Plaintiffs claim that the City and the WRWA controlled who was permitted to tap into the Old Adamsville line and, unlike their predominantly white neighbors, the City and WRWA never permitted the Coal Run residents to connect.

In 1967, the County formed the EMWA to provide water service throughout the County. Shortly after EMWA's formation, Coal Run residents approached the EMWA to request water service for their neighborhood. Plaintiff Kennedy, Sr. testified that he attended a meeting in 1968 or 1969, where he and other residents expressly sought water service from the EMWA. Plaintiff Hill also testified to attending a meeting at the Washington Township firehouse around the same time when one of her neighbors asked when water could be brought to Coal Run. A few years later, a group of at least ten Coal Run residents appeared at an EMWA board meeting to request water service. In a departure from its usual practice, Plaintiffs assert that the EMWA did not respond to the request by conducting a preliminary engineering study to estimate likely costs, but instead, directed the residents to obtain signed contracts and deposits from those Coal Run residents who wanted water service. Several residents testified that they signed contracts and paid deposits, but the EMWA still took no action to provide them with access to water.

In the meantime, Plaintiffs state that they continued making water requests to the City and the WRWA. The Kennedy Plaintiffs claim that they took turns throughout the 1960s attending bi-monthly...

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