EAST ST. LOUIS – Cahokia Heights argued at U.S. district court that development in mostly white communities caused the failure of storm and sanitary sewers in its mostly black community.
On Sept. 22, city counsel Erica Spitzig of Cincinnati asserted the racial theory in a motion for summary judgment against Cornelius Bennett and Earlie Fuse, who sued for better sewers in 2020.
“Small, impoverished, majority black communities suffer from widespread flooding and sewage overflows as the result of historic marginalization and modern day development in wealthier, whiter surrounding areas,” she wrote.
She specified Belleville, Swansea, and Shiloh.
“Because defendants lacked adequate funding, they were unable to take the steps necessary to stop the flooding and address the failing sewer system,” she wrote.
Spitzig called it a case of environmental justice.
She claimed plaintiffs Cornelius Bennett and Earlie Fuse seek to penalize people for difficult judgments they had to make about spending limited resources.
She claimed flooding resulted from unusually flat topography coupled with aging infrastructure incapable of handling runoff from areas on top of nearby bluffs.
She added that the runoff combines with sewage and invades properties.
“The situation is undeniably a tragedy,” she wrote.
Spitzig asserted immunity under state law for discretionary functions of local government.
She claimed decisions involving priorities and methods for maintenance and repair of sewer and storm water systems are discretionary functions.
“This is true even where the harm to the plaintiff’s property could have been avoided were the sewer system better maintained,” she wrote.
Spitzig also pleaded for judgment against a claim that flood damage constitutes an unlawful taking of property value.
She claimed property loss is compensable as a taking only when government intends to invade a protected interest or an invasion is a direct, natural, or probable result of authorized activity.
“This means that on a takings theory, the government cannot be liable for failure to act but only for affirmative acts by the government,” she wrote.
“Therefore, where a government entity fails to maintain infrastructure, even if that failure causes harm, the government’s inaction cannot constitute a taking,” she added.
Spitzig claimed plaintiff expert Jose Constantine concluded that lack of maintenance in a channel along Belleview Avenue caused chronic flooding.
She claimed he concluded that storm water infrastructure is failing and the sanitary sewer system is failing or no longer functions.
She didn’t concede his opinions but stated defendants believe a much larger problem of storm water runoff from the bluff area caused the flooding.
“Under either theory the plaintiffs cannot establish takings claims because their alleged harm is not the result of any government action,” she wrote.
Spitzig attached excerpts of a deposition of defendant Marius Jackson in 2021, who formerly served as mayor.
Counsel asked him about his plan to address water from the bluff, and he said, “We took the backhoe and dug some ditches.”
“Some of the ditches that have been covered for years, I had them to go over and re-dig the ditches back out,” he said.
“Some areas in the city don’t have any storm drains at all.
“I can be honest. We need some free money. We can’t pay it back.
“Belleville may have been able to pay back $22 million. Hell, we can’t pay $222,000 back.
“It’s work that needs to be done underground.
“You can pull the pump out or you can clean it up but until work is actually done underground, you are never going to fix this problem,” Jackson concluded.
Spitzig attached a deposition of Dennis Traiteur, who ran the water district that Cahokia Heights absorbed as part of a merger among Cahokia, Centreville, and Alorton.
“The board really didn’t want to impose some kind of fees on the residents in the area because of the depressed area,” he said.
“We’d have to raise the rates dramatically to make the infrastructure repairs,” he added.
Plaintiff counsel Nicole Nelson asked, “Nobody had any documents prepared, that they were consulting with, that gave them the actual costs?”
“No, there was no engineer estimates produced,” Traiteur responded,
Nelson asked, “The board didn’t collect any information that gave them a cost of what it would take to resolve the inflow and infiltration?”
Traiteur said no, and she asked why not.
“We had many other issues to deal with in our district that we just did not address it,” he said.
Nelson asked what other issues, and Traiteur responded, “We had water main relocations, we had other lift stations that needed to be replaced, various different projects going on constantly in our system.”
District Judge David Dugan has set trial to start Jan. 29.
He heard a motion to dismiss on Sept. 7 and stated he’d issue an order.
He hadn’t issued it as of Oct.. 3.