A lawsuit by neighbors against a potential new city landfill off Old Lorena Road must be thrown out, an intermediate appellate court ruled Thursday, saying the residents’ claims were “not ripe” because the future of the site is uncertain.
Waco’s 10th Court of Appeals ruled that 414th State District Judge Vicki Menard erred in not dismissing a breach of contract lawsuit that Citizens To Save Lake Waco filed against city in January 2017. The justices sent the case back to Menard with orders to throw the suit out.
In a seven-page opinion written by 10th Court Chief Justice Tom Gray, the three-judge panel ruled that because the city has shifted it focus for a new landfill away from land off Old Lorena Road to a site near Axtell, the issues in the suit are not pressing and at most the plaintiffs have “potential injury, not a concrete injury.”
“Thus, on the record before us, neither Lake Waco nor the city can demonstrate a reasonable likelihood that the claims ‘will soon ripen.’” the opinion states. “And without more, Lake Waco’s underlying breach of contract and permanent injunction claims are not ripe.”
The court ruled that because the group’s claims are not “ripe,” Menard had no jurisdiction to rule on the city’s plea to the jurisdiction and has no jurisdiction over Citizens to Save Lake Waco’s claims in the underlying suit.
The lawsuit sought 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.
The city claims that had it chosen that location, it would have had to apply for a permit for a new landfill, constituting a new location and not an expansion of the current landfill.
Waco City Attorney Jennifer Richie said the city respects the court’s decision and intends to fulfill its obligation to provide a new landfill before the current one reaches capacity by exploring the “best options to fulfill this responsibility.”
“The court has dismissed the plaintiff’s lawsuit,” Richie said. “The court did not rule on the merits of this case or on the city’s plea to the jurisdiction. The court merely ruled on ripeness, meaning that the court does not believe that the case is ready to be heard.”
Billy Davis, one of the attorneys representing the citizens’ group, said the group is “OK with the ruling.” He said they filed suit because they thought the city would have been in violation of a previous lawsuit settlement had it sought another permit for the property adjacent to the landfill.
In light of the court’s ruling, the group will wait to see if the city seeks a permit on the land off Old Lorena Road and will file the suit again if it does, Davis said.
Waco attorney Andy McSwain, who represents the city with attorney James Parker, argued in oral arguments before the 10th Court in June that the city is protected from the suit by governmental immunity and that the court should overturn Menard’s ruling on that basis.
Austin attorney Kevin Terrazas, who represents Citizens to Save Lake Waco with attorneys 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.
“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 June 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, City Hall has been hit by a barrage of protests from residents in the Highway 84 area. In response, city officials searched for an alternative 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.
The appellate court said in its ruling that there is no evidence the city has expanded the current landfill or will expand it.
“It is uncertain that the city will apply for or receive a permit to expand the current landfill or to build a new landfill on the acreage acquired adjacent to the (current) landfill in the near future; or in either instance, whether the TCEQ will approve such a permit,” the court wrote.