A judge Wednesday sided with a citizens’ group, allowing a lawsuit to move forward that challenges the city of Waco’s efforts to build a landfill adjacent to the Waco Regional Landfill off U.S. Highway 84.
Without comment, 414th State District Judge Vicki Menard denied the city of Waco’s plea to the jurisdiction and its arguments that it cannot be sued because it has governmental immunity from such suits.
Menard heard arguments last week from attorneys for the city and Citizens to Save Lake Waco on a motion from the city seeking to dismiss the suit.
Waco attorney Andy McSwain, who represents the city, argued at the hearing that if the city has governmental immunity, then Menard’s court has no jurisdiction to handle the lawsuit.
“I am obviously very disappointed,” McSwain said Wednesday. “I think it is an incorrect ruling. The city will appeal this immediately, and we will see how that turns out, although I expect that ultimately we will prevail.”
An appeal will go to Waco’s 10th Court of Appeals.
’92 settlement issue
The lawsuit, filed by the group in January, asks Menard to grant a permanent injunction against the city and claims the city, if it follows through with plans for a new landfill adjacent to the old one, would, in essence, violate the terms of a 1992 lawsuit settlement not to expand the present site.
“We are very pleased about the judge’s ruling and, of course, think that it absolutely is the correct ruling,” said Waco attorney Billy Davis, who represents the group with attorney Matt Morrison.
“Now, we look forward to having our day in court over the settlement agreement. The issue will be what they are proposing is an expansion of the landfill, because where it sits, it abuts and adjoins the existing landfill. It can’t be construed any other way.”
While the city is proceeding with plans for the location, city council members have asked staff and a consultant to look into alternative sites.
Wanda Glaze, the plaintiff in the 1992 lawsuit who lives along Old Lorena Road, attended last week’s court hearing with others who oppose the city’s plans.
“The city signed an agreement in 1992 that dismissed Mrs. Glaze’s lawsuit about the landfill, and now that Mrs. Glaze and the Citizens to Save Lake Waco are trying to enforce the single largest benefit for that agreement to her, which was not expand the landfill, the city says they are immune from being sued on that agreement,” Davis said last week after the hearing.
“So, the essence is we will sign an agreement to get the lawsuit dismissed, but don’t ever ask us to honor it. It is a disappointment that our city leaders would try to hide behind the eight ball on this and then raise ‘you can’t sue,’ versus let the jury and court determine what that agreement says and what the parties are entitled to.”
McSwain said after last week’s hearing it is disappointing that the city has been drawn into another lawsuit.
“As shown by the transcription of the city council session in 1992, introduced at the hearing by Citizens to Save Lake Waco, it was never contemplated that the agreement with Mrs. Glaze would prohibit a new permit application for a new landfill site, even in the adjacent area,” McSwain said at the time. “And that is precisely what the city is considering, a new permit for a new site.
“As to the city’s right to assert governmental immunity from this suit, that should come as no surprise since it has been the law for years. It protects the city and its residents and keeps city management from being constantly attacked by costly suits.”
Morrison argued last week it is “fundamentally unfair” for the city to claim immunity after signing the agreement.
“Now they claim, ‘We had our fingers crossed behind our backs the whole time. We had immunity,’ ” Morrison said.
City officials are moving forward with the lengthy process of getting a state permit for a landfill on a 270-acre tract next to the operating landfill in the next few years. They expect to open it in within seven years, when the existing 238-acre landfill just south of U.S. Highway 84 is expected to be full. Permitting a new operation and closing the existing one adds considerable cost, compared to expansion.
Officials from SCS Engineering, of Omaha, Nebraska, reported to Waco City Council members Tuesday that alternatives to the proposed landfill would drastically increase costs to Waco taxpayers and involve hauling trash out of McLennan County.
3 possible sites
SCS looked for large sites at least four miles from neighborhoods and outside wetlands or floodplains. SCS officials said they found three other sites from 27 to 36 miles away, with estimated land costs of $840,000 to $4.8 million.
Council members instructed them to keep looking, suggesting they look for sites within 15 miles of Waco, even if the sites are closer than four miles to existing neighborhoods.
In August, Waco City Council awarded a contract for $891,000 to an SCS for design and permitting work on the proposed landfill project. The council also approved $150,000 for related legal services.
Three months ago, the city added $100,000 to the engineering firm’s contract and instructed it to examine at least three other potential sites for the new landfill. At the same time, it added $50,000 to the legal budget for the project.
The city bought parcels for the proposed landfill site near Old Lorena Road between 2003 and 2010.