Lucero v. Detroit Public Schools

• Decision Date: 30 August 2001
• Docket Number: No. 01-CV-72792-DT.,01-CV-72792-DT.
• Citation: 160 F.Supp.2d 767
• Parties: Guadalupe LUCERO, as Next Friend of Adan Lucero; Susan Ensley, as Next Friend of Jacob Ensley; Cassandra Sanches, as Next Friend of Veronica Sanches; Maria Nunez, as Next Friend of Rossie Nunez; Maria Garcia, as Next Friend of Candido Garcia; Susana Montano, as Next Friend of Daniela Montano, Susana, Montano, and Agustin Antonio Montano; Vera Carrillo, as Next Friend of Alexander Carrillo and Nickalus Gachowski; Debbie Lewis, as Next Friend of Amanda Lewis, Florence Lewis, Lisa Lewis, and Matthew Lewis; Lori Micallef, as Next Friend of Michael Micallef and Jessica Micallef; Maria Barajas, as Next Friend of Gabriela Barajas; and Marl Holt, as Next Friend Heather Tuck, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. DETROIT PUBLIC SCHOOLS, a Municipal Corporation, Board of Education of the City of Detroit, a Municipal Corporation, and Dr. Kenneth Burnley, Individually and in his Official Capacity, Jointly and Severally, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

160 F.Supp.2d 767

Guadalupe LUCERO, as Next Friend of Adan Lucero; Susan Ensley, as Next Friend of Jacob Ensley; Cassandra Sanches, as Next Friend of Veronica Sanches; Maria Nunez, as Next Friend of Rossie Nunez; Maria Garcia, as Next Friend of Candido Garcia; Susana Montano, as Next Friend of Daniela Montano, Susana, Montano, and Agustin Antonio Montano; Vera Carrillo, as Next Friend of Alexander Carrillo and Nickalus Gachowski; Debbie Lewis, as Next Friend of Amanda Lewis, Florence Lewis, Lisa Lewis, and Matthew Lewis; Lori Micallef, as Next Friend of Michael Micallef and Jessica Micallef; Maria Barajas, as Next Friend of Gabriela Barajas; and Marl Holt, as Next Friend Heather Tuck, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. DETROIT PUBLIC SCHOOLS, a Municipal Corporation, Board of Education of the City of Detroit, a Municipal Corporation, and Dr. Kenneth Burnley, Individually and in his Official Capacity, Jointly and Severally, Defendants.

No. 01-CV-72792-DT.

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

August 30, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas W. Stephens, Goodman, Lister, Detroit, MI, Patricia Mendoza, Ruperto R.

Alba, Chicago, IL, Julie H. Hurwitz, Alma L. Lowry, Detroit, MI, for Plaintiffs.

Jerome R. Watson, Clara G. Dequick, Miller, Canfield, Detroit, MI, Steven E. Chester, Michigan Department of Attorney General Environmental Protection Division, Lansing, MI, Lamont D. Satchel, Detroit, MI, for Defendants.

MEMORANDUM OPINION AND ORDER

HOOD, District Judge.

I. FACTS

Plaintiffs filed the cause of action in the Eastern District of Michigan on July 26, 2001. Plaintiffs allege Defendants Detroit Public Schools ("DPS"), Detroit Board of Education and Dr. Kenneth Burnley chose to build the new Beard Elementary School on a site that is contaminated. (See Complaint ¶ 25). The Defendants announced in September of 2000, that Beard Elementary School located in Southwest Detroit at 840 Waterman would close in 2001 and a new Beard School would be built on Beard, Green and Chatfield Streets in the City of Detroit ("the Site"). (See Complaint ¶ 29). McMillan Elementary School was also designated to close in the spring of 2001 with a plan to reassign the McMillan students to the new Beard location. (See Complaint ¶ 30).

The parties agree that the old Beard School lacks the proper facilities required such as an auditorium, cafeteria, gymnasium and playground. The McMillan School has experienced a significant decline in enrollment falling below 300 students. Based upon the lack of proper facilities and the decline in enrollment at McMillan, Defendants began to develop a new state of the art neighborhood school. The new Beard Elementary School sits on 6.45 acres in southwest Detroit. The school is scheduled to open on Tuesday, September 4, 2001.

It is alleged that the current Beard student body is comprised of 61% Hispanic and 13% African American. (See Plaintiff's Exhibits B & C). The McMillan student body is made up of 58% African American and 21% Hispanic. (Id.) Plaintiffs contend that African American students and Hispanic students are groups which are protected by Title VI of the Civil Rights Act of 1964 based upon the percentage of African American and Hispanic populations in the Detroit Metropolitan area. (See Plaintiff's Exhibit E) Defendants have not disputed the demographics asserted by the Plaintiffs.

The Site was used for industrial manufacturing, storage and maintenance operations from 1918 through 1964. The new Beard site was acquired by the Detroit Public Schools in 1965. The Site was used by DPS for educational training, vehicle maintenance and limited manufacturing operations until 1978. The DPS thereafter used the Site as a vocational training school known as the McNamara Skills Center until 1986. (See Plaintiff's Exhibit F, Phase I Environmental Site Assessment Report) Plaintiffs state that an underground storage tank ("UST") was housed on the property which has been vacant since the 1986 closing of the Skills Center.

Defendants state that in the late 1990s the Site became the focus of redevelopment. In order to aid in that development, a Task Force was created which included members from the Michigan Department of Environmental Quality (" MDEQ"), Wayne County, City of Detroit, and Southwest Detroit Environmental Vision ("SDEV"), a local environmental organization. The Task Force recommended that the Site be put to productive use.

Plaintiffs claim that Defendants engaged in negotiations with the SDEV and the Task Force to gain custody of the property through a swap or a direct sale of other properties. Plaintiffs contend that Defendants did not seriously consider an alternative site for a new school. Plaintiffs state that all negotiations ended between the SDEV and DPSwhen the Reform School Board was appointed. It is alleged that a DPS staff person stated at a community meeting that the size of the lot and ownership by DPS was conducive to the quick construction of the school. The Site was zoned M4 which is an Intensive Industrial District. Although the Site was zoned M4, Joseph Graf stated that it was chosen as the Site for the new school because:

To the best of my knowledge there is no other site in that neighborhood of that size that would accommodate a school of 83,000 square feet.... Secondly, the Detroit Public Schools already owns that property and so there was no need to go out and acquire differently given that facts.... Thirdly, when we study the environmental concerns that were indicated in the Brownsville Study [sic], we knew that there were concerns that could be addressed and that site could be made safe for the school site.

See Defendant's Exhibit B, ¶ 8. Plaintiffs allege that the Detroit Board of Zoning Appeals ("BZA") was told that Beard was being built on the Site because the site was large enough to accommodate the school and the site was owned by the Detroit Public Schools. Defendants contend that the BZA found that a new school on the Site would be a "more compatible use to the surrounding development" and would enhance the social, physical and economic well being of the surrounding residential neighborhood.

A study on the prior uses of the Site was conducted by the University of Michigan's School of Natural Resources and Environment in response to concerns from members of the local community and the SDEV. The study revealed a long history of industrial uses and indications that the underground storage tanks might still be present. (See Plaintiffs' Exhibit A) The report generated as a result of the study was allegedly presented to the Detroit Public Schools staff in the spring of 1999 but the staff refused to accept the report as proof of site contamination. SDEV thereafter asked the MDEQ and the Wayne County Brownfield Redevelopment Authority ("WCBRA") to evaluate the level of contamination on the Site and to clean up the Site. In the summer of 1999, WCBRA arranged for a site assessment and historical analysis of the past uses of the Site by AKT Consultants, Ltd. ("AKT") and a determination regarding whether there continued to be contamination. AKT conducted an environmental site assessment and determined that there were recognized environmental concerns and additional environmental investigations were conducted on the Site. The following historical industrial uses were found by AKT:

• manufacturing and assembly of steel, brass, aluminum and other metal products;

• radios and televisions;

• refrigerators;

• paper products;

• textiles and automotive components;

• storage or manufacture of paints, adhesives, lead batteries;

• pharmaceutical goods;

• electrical supplies; and

• military tank components.

Based upon the previous alleged uses of the Site, volatile organic chemicals (VOCs), semi-volatile organic chemicals, petroleum-related materials, polychlorinated biphenyls (PCBs), chlorinated solvents, various heavy metals and radioactive paints were the recognized and potential environmental concerns. In August of 1999, a radiation survey was conducted. A subsurface investigation was conducted and 56 soil samples were submitted to the EPA for analysis. AKT also performed a partial geophysical survey, a radiation study and soil sampling. (See Plaintiffs' Exhibit J) The samples were tested for VOCs, base neutral acid semi-volatile organic compounds (BNA SVOCs), PCB, pesticides and analyte metals. Several contaminants were found as a result of the sampling: arsenic, lead, PCB, carbon tetrachloride, benzopyrene, benzo(a)pyrene and trichlorethene. The subsurface investigation revealed saturated soils at depths seven (7) to twelve (12) feet below the ground surface, but the test wells yielded insufficient ground water samples. It is alleged that the levels of benzo(a)pyrene, PCB and arsenic were ten to fifty times higher than applicable residential criteria. Plaintiffs contend upon information and belief that the WCBRA reports were provided to Defendants.

It was determined in March, 2000 through an AKT Phase II environmental site assessment that environmental cleanup was needed. Contaminants, which exceeded the generic Residential Cleanup Criteria, were carbon tetrachloride, polynuclear aromatic hydricarbibs (PNAs), PCBs, arsenic and lead, but the contaminants only exceeded the criteria for groundwater. Two anomalies were found near the eastern boundary of the property and a third near the western portion of the Sitewhen a geophysical survey of the Site was conducted in July and August of 1999 to locate underground storage tank locations. When the June 16, 2000 test pit investigation was conducted, two USTs were discovered. The USTs contained some liquids which were low level contaminants but were below the Residential Cleanup Criteria. The liquid was found to be tapped surface water.

Most of Defendants' cleanup activities occurred after the AKT assessment. AKT, the...