The current Waco landfill (left) is adjacent to the controversial proposed Old Lorena Road site (right).

A three-judge intermediate appellate court in Waco heard arguments Thursday in a lawsuit filed by a citizens’ group who allege the city of Waco violated a 27-year-old agreement not to expand the Waco Regional Landfill off U.S. Highway 84.

While the city has turned away from the Old Lorena Road site and is focusing on land near Axtell as a potential new landfill, the lawsuit involving the city and Citizens to Save Lake Waco remains active.

On Thursday, attorneys for the city and the citizens’ group argued their case before 10th Court of Appeals justices on the city’s appeal of 414th State District Judge Vicki Menard’s June 2017 denial of the city’s motion to dismiss the lawsuit.

The oral arguments, which typically last about 20 minutes per side, stretched on for more than 90 minutes as Chief Justice Tom Gray peppered the attorneys with questions about the law, the city’s claim of immunity from the suit, the group’s standing in the lawsuit and what administrative remedies are available to the parties in the dispute.

Gray, Justice John Neill and Visiting Judge John Youngblood took the matter under advisement and will rule at a later date. Youngblood, judge of the 20th State District Court in Milam County, was appointed to hear the case because Justice Rex Davis recused himself.

The lawsuit, filed by the group in January 2017, seeks a permanent injunction against the city from expanding the current landfill onto adjacent property off Old Lorena Road. The suit claims that the city, if it decides to build the new landfill adjacent to the old one, would violate the terms of a 1992 lawsuit settlement not to expand the present site.

Waco attorney Andy McSwain, who represents the city with attorney James Parker, argued that the city is protected from the suit by governmental immunity and that the court should overturn Menard’s ruling to allow the suit to move forward. City officials have said the new site would require a new permit and would not constitute an expansion of the present landfill.

Austin attorney Kevin Terrazas, who represents Citizens to Save Lake Waco with attorneys Billy Davis, Matt Morrison and Ronald Beal, told the justices that the city did not claim immunity when it settled the 1992 lawsuit with Wanda Glaze, an Old Lorena Road resident, and would be in clear violation of the agreement were it to pursue the landfill permit in that area.

McSwain declined comment after the hearing.

“The essence of the litigation at this point is should the city honor an agreement made 27 years ago in settlement of a lawsuit related to the landfill permit at the time?” Davis said after the hearing. “We believe the settlement agreement is enforceable and the city should stand behind what it agreed to do in order for them to get the permit they wanted.”

Since the current lawsuit was filed and a wave of protests from residents in the Highway 84 area washed over city officials, they searched for an alternate location and have a permit filed for a new landfill off TK Parkway and State Highway 31. The new site covers 1,290 acres and extends into Limestone and Hill counties.

Despite the city’s shift in locations, Davis said it is important to pursue the lawsuit because the city has not ruled out the Old Lorena Road location.

“We want the courts here to interpret that contract to mean expansion applies to the adjacent property of the existing landfill,” Davis said. “We don’t want the city to spend millions of dollars filing a permit and then we prevail five years from now and that money is wasted. Now is the time to figure out what that contract says and what the rights of the parties are.”

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Staff writer at the Waco Tribune-Herald covering courts and criminal justice. Follow me on Twitter @TSpoonFeed.

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