Judge Grants Injunction Against City

June 17, 2002
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GRAND RAPIDS — Kent County Circuit Court Judge Dennis Leiber granted the Local Area Watch (LAW) its request for a preliminary injunction against the city of Grand Rapids.

The ruling prevents the city from destroying certain documents that supposedly relate to the alleged illegal removal of toxic soil from the former Berkey & Gay Building construction site at 940 Monroe Ave. NW to a former city-owned water filtration plant at 1430 Monroe Ave. NW.

“What harm is there to saving these for my review?” asked Leiber rhetorically as he made his ruling.

But Leiber, a former city attorney, continued a second motion from LAW, which asked the court to force the city to produce such documents, pending his further investigation.

LAW Executive Director William Tingley III, also general manager of Proto-Cam Inc., filed a Freedom of Information Act (FOIA) request with the city last June that sought many public records that related to the renovation of the Berkey & Gay furniture factory into the Boardwalk, a new development that mixes office space with housing.

In its request, LAW asked for all communications that the city, the City Commission, the Monroe North Tax Increment Finance Authority and the Historic Preservation Commission had with 900 Monroe LLC, 940 Monroe LLC, Pioneer Inc., Dykema Excavators Inc., Global Enterprise for Water Technology and Helms Caulking Inc.

All but Global Enterprise either worked on the reconstruction project or were partners in the development. Global Enterprise is trying to turn the filtration plant, the alleged depository of the soil, into a clean-water laboratory.

LAW also asked for the minutes from selected Committee of the Whole meetings and executive sessions, gatherings in which it claimed that past and present city commissioners made decisions that helped the developers keep the supposed dumping from the public.

In all, LAW made 65 specific requests for documents.

In response, the city granted part of the FOIA request in July but also denied part of it as well. G. Douglas Walton, the city’s FOIA coordinator, told LAW that it failed to sufficiently describe many of the requested records, making it difficult for the city to find the papers, and called the request “absurdly overbroad.”

Walton said minutes from the requested Committee of the Whole meetings were available for inspection, but those from the executive sessions, which are closed to the public, and other requested documents were exempt under the FOIA law.

LAW filed an appeal of that decision with City Manager Kurt Kimball in July. Kimball upheld Walton’s conclusion in August, which prompted LAW to file the FOIA lawsuit in January.

Assistant City Attorney Daniel Ophoff told Leiber that the documents LAW requested were exempt from the FOIA law. But LAW claimed that the city willfully destroyed the papers, and its attorney, Peter Steketee, wanted to know if the documents were stored on someone’s computer hard drive.

LAW specifically asked Leiber to examine the minutes from an executive session that commissioners held on May 8, 2001. At that session, LAW alleged that city commissioners refused to hold a meeting to inform the public of the danger from the contaminants at the water filtration plant because it might be embarrassing to do so.

LAW also claimed that Ophoff told Steketee last month that the city had destroyed the requested documents as the legal time limit for keeping these papers under the FOIA law had run out. LAW said it gave the city extensions to find the documents, but then said it was taken advantage of when the city used those extensions as a delay tactic that allowed the time limit on the requested papers to expire.

Leiber then granted the preliminary injunction that prevents the city from destroying any papers related to the suit. The judge is expected to rule on the second motion within a few weeks. Leiber also dismissed the Monroe North TIFA from the suit without prejudice after Steketee talked with TIFA attorney Kevin O’Dowd, who said his group wasn’t notified of the request.

The Attorney General’s office instructed the Michigan Department of Environmental Quality to investigate the alleged illegal removal and dumping of the toxic soil in February 2001. That investigation is ongoing.           

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