HUDSON — Attorneys representing the city are asking the state's highest court to hear its appeal challenging a water rate surcharge being levied by the city of Akron, to the tune of $17.76 per month for Hudson residential customers.
The city of Hudson on Oct. 30 filed a notice with the Ohio Supreme Court appealing a Ninth District Court of Appeals' Sept. 13 ruling which upheld a lower court's dismissal of Hudson's initial complaint.
Akron is one of four providers that supply water to Hudson; Cleveland, Stow and Hudson itself are the others. Hudson and Akron do not currently have a water service contract, according to Hudson officials.
Jody Roberts, spokesperson for the city of Hudson, said officials are in discussions with Akron officials to iron out water service issues, but are also continuing with the court challenge of a surcharge that they believe is "not fair" to Hudson residents.
"We’re continuing to work with Akron on trying to find a solution to this and other issues regarding their water service in Hudson," said Roberts. "But we also feel strongly that we need to continue with the appeal for the surcharge issue. We’re approaching this from both angles."
Ellen Lander Nischt, press secretary for the city of Akron, said Akron officials "have no comment to offer outside of what is stated in our filings with the court."
In November 2014, Akron started charging its Hudson residential customers the $17.76 per month surcharge. Hudson commercial customers saw a 42 percent increase in water charges, in part due to the surcharge, according to court records. In December 2014, the city of Hudson filed a class action complaint against Akron in Summit County Court of Common Pleas to try to stop Akron from assessing the surcharge, claiming it was "unfair" and "unreasonable."
In dismissing Hudson’s complaint in October 2015, Judge Alison McCarty wrote, "Akron is under no duty to provide water to Hudson, and this court is unaware of any basis for the authority to decide that the surcharge is unreasonable."
The Ninth District Court of Appeals on Sept. 13 upheld McCarty’s dismissal, ruling that "Hudson customers have no right to demand reasonable water rates from Akron, unless those rates are negotiated into a contract."
Akron notes in its legal brief at the appellate level that the Ohio Supreme Court has previously ruled that the court only has the authority to protect a municipal water provider’s own residents from having "unreasonable" rates imposed on them. In this case, Hudson customers are considered "extraterritorial" customers of Akron and do not have a right under state law to challenge the rates, according to Akron’s brief.
Akron officials also state that "Hudson is wrongfully seeking to challenge the reasonableness of water rates charged by Akron for extraterritorial customers based upon the constitutional standards that the Supreme Court has held are applicable only to the residents of Akron."
On to the Supreme Court
Hudson officials are encouraging the Ohio Supreme Court to hear the case because it "deals with a narrow loophole in Ohio law which forces certain types of water customers to pay excessive water rates and exorbitant surcharges without any legal recourse or remedy," according to a memorandum filed by Hudson with the high court Oct. 30.
Hudson attorneys note while state law "provides customers with the right to challenge unreasonable water rates charged by their water utility purveyor," a customer "who receives water from an extraterritorial municipal water purveyor in the absence of a contract cannot challenge the rates charged because, according to the [Ninth District] Court of Appeals… 'no such right currently exists under Ohio law.'"
Hudson officials state in the memorandum that Akron is charging approximately 1,758 "non-contracting extraterritorial water customers in Hudson an exorbitant water rate and an excessive surcharge."
The case is being filed to try to close the loophole and "put an end to Akron's egregious billing practices," according to the memorandum. If the loophole is not closed, Hudson officials argue it would mean that water customers who receive the resource from a non-Hudson provider (such as Akron) and do not have a contract with that entity could not challenge rates they felt were "excessive," "unreasonable" and "unnecessary."