HomeMy WebLinkAbout90- Three River Disposal, Waste Management Partners Settlement Agreement
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\ FULL AND FINAL RELEASE AND SETTLEMENT AGREEMENT
This IISettlement Agreementll is entered into among Plaintiffs, Three
Rivers Disposal, a partnership, and Waste Management Partners of Bozeman
Limited Partnership, an Illinois limited partnership; and Defendant, City of
Bozeman, a municipal corporation of the State of Montana (all named parties
hereinafter collectively referred to as lithe Partiesll).
IIPlaintiffsll shall collectively mean Three Rivers Disposal and Waste
Management Partners of Bozeman Limited Partnership; their respective
partners of whatsoever percentage of ownership; the officers, directors and
employees of the above, and the respective hei rs, personal representatives,
successors and assigns of the above identified either expressly or by way
of implication.
( II Defendantll shall mean the City of Bozeman, its employees, officers,
elected officials, and the successors and assigns of each.
I.
RECITALS
A. Plaintiffs claim to have suffered damages by reason of certain
activities, actions and omissions of the City of Bozeman, its agents,
employees and elected officials. The activities, actions and omissions of
which Plaintiffs complain have been memorialized in certain documents,
to-wit:
1. Claim for Damages dated April 14, 1989 ( Exhibit 1 to this
Agreement)
2. Complaint and Demand for Jury Trial dated August 15, 1989
(Exhibit 2 to this Agreement)
3. First Amended Complaint dated December 1, 1989 (Exhibit 3
( to this Agreement)
THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT
TO THE UNIFORM ARBITRATION ACT (27-5-111 et seq. (1989))
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\ liThe Partiesll desire to enter into this IISettlement Agreementll to
B.
provide for a payment to Plaintiffs in full and final settlement and discharge
of all claims and causes of action asserted explicitly or by way of
implication by the Plaintiffs in Exhibits 1 , 2 and 3 to this IISettlement
Ag reement. II Additionally, lithe parties, II by entering into this IISettlement
Agreement, II wish to provide to each other additional consideration for the
execution of the IISettlement Ag reementll and to further provide for the
imposition of a framework by which a harmonious relationship can be
maintained between the Plaintiffs and the Defendant.
C. liThe Parties, II in entering into this IISettlement Ag reement, II
perceive the existence of certain inherent tensions between them. By way
of example and, not by way of limitation, these tensions are:
1 . The fact that lithe partiesll are engaged in the collection,
transportation and disposal of solid waste within the City of
Bozeman.
2. The statutory grant to municipalities to IIregulate the
disposition and removal of .. . garbage, or other offensive
matter in any street or alley .. . or on any premises. II
~ 7-14-4105 M.C.A. (1989). I ncidental to said grant is the
municipality's IIpower to provide for levying the cost of the
removal .. . as a special tax against the property from which
such matter was deposited. II ~ 7-14-4106 M.C.A. (1989) .
3. The stated public policy of the State of Montana which, in
part, is that II10cal governments shall retain primary
responsibility for adequate solid waste management with the
State preserving those functions necessary to assure
effective solid waste management systems throughout the
State. II ~ 75-10-102(d) M.C.A. (1989) .
4. The stated public policy of the State of Montana which, in
part, is that IIprivate industry is to be utilized to the
maximum extent possible in planning, designing, managing,
constructing, operating, manufacturing, and marketing
functions related to solid waste management systems. I,
~ 75-10-102(c) M.C.A. (1989) .
5. The fact that Plaintiffs are engaged in the business of solid
waste collection, transportation and disposal as a lifer profitll
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( venture whereas Defendant engages in said endeavor in the
exercise of its police powers and not as a IIfor profitll
venture.
D. Plaintiffs sought a IIConditional Use Permitll to allow for the
construction of a 10,000 square foot building to house a garbage transfer
station on Tract 1, Certificate of Survey No. 1363 in early 1988. Said
parcel is zoned M-2 under the ordinances of the City of Bozeman. A public
hearing on the issuance of said Conditional Use Permit was held before the
Bozeman City Commission on March 7, 1988. A record of said hearing is
contained in the minutes of the Bozeman City Commission and is on file for
public examination at the municipal offi ces of the City of Bozeman. No
decision was made by the City Commission on the application for the
issuance of the IIConditional Use Permit" at said meeting.
E. Thereafter, on March 14, 1988, the City Commission, during its
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regularly scheduled meeting, rendered its decision on Plaintiffs' application
for a Conditional Use Permit and granted the IIConditional Use Permit"
requested by Plaintiffs to allow for the construction of a 10,000 square foot
building on Tract 1 of Certificate of Survey No. 1363 for the purpose of
housing a garbage transfer station. Said approval was subject to 20
conditions which are set forth in the IIMinutes of the Meeting of the City
Commission, Bozeman, Montana, March 14, 1988, II a record open to
inspection by the public at the municipal offices of the City of Bozeman.
F. As of the date of the execution of this "Settlement Agreement, II
Plaintiffs have not affixed any permanent structure on Tract 1 of Certificate
of Survey 1363 nor have they utilized said premises as a garbage transfer
station. The Plaintiffs, however, have satisfied all conditions imposed by
( the City Commission in its meeting minutes of March 14, 1988. That, by
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( of 20 ~ 18.52.090,
reason Condition and Bozeman Municipal Code, the
IIConditional Use Permitll will become void and of no effect on May 23, 1990.
G. The City of Bozeman has historically levied the cost of garbage
removal against property to which it provided such services by an annual
special tax due and payable on or before November 30th pursuant to
~ 7-14-4106(1) M.C.A. It is the desire of the Plaintiffs, in order to
attempt to obtain a larger market base, that Defendant not assess
properties for garbage removal which properties see k to become or have
become customers of the Plaintiffs.
H. liThe partiesll recog n i ze that services provided by them may
change in quantity, nature and scope by reason of the capacity of landfills
presently utilized by each, by developing technology, and rules,
( regulations and statutory requirements promulgated by Federal and State
agencies. They further recognize that the services rendered by each are
the same or similar and that such services may continue to share a
commonality of purpose.
Now, Therefore, it is hereby agreed as follows:
II.
RELEASE
I n consideration of the acts identified in Paragraph I V hereof, parties
hereby release and forever discharge each other and their agents,
employees, and attorneys from any and all past, present, or future claims
for damages for property damage, loss, or impairment of earnings and/or
earning capacity and such other damages identified in or necessarily
( contemplated by Exhibits 1 , 2, and 3 attached hereto and, by this
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reference, made an integral part of this IISettlement Ag reement. II This
release and discharge shall be a fully binding and complete settlement
among all the parties to this IISettlement Agreement. II
This release is entered into in settlement of all actions or causes of
action identified expressly or by way of implication in Exhibits 1, 2, and 3
hereof. Parties intend that by executing this IISettlement Agreementll they
release each other from any and all liability for all damage, direct,
consequential, punitive, attorney's fees, and all other damages that may be
permitted by law which either side claims to have incurred and shalf apply
to and include all future injuries, damages, losses and expenses not now
known or anticipated but which may later develop or be discovered.
Parties accept the mutual consideration as identified in Paragraph IV
( hereof and elsewhere as a compromise and settlement of all claims either
party may have against the other as identified expressly or by way of
implication in Exhibits 1, 2, and 3 hereof. Parties agree that by furnishing
consideration for this IISettlement Agreement" neither is admitting liability
whatsoever. Liability is expressly denied by all parties hereto.
III .
CONSIDERATION
A. Monetary: Concurrently with the execution of this IISettlement
Agreement, " Defendant has tendered to Plaintiffs the sum of $10,000.00 the
adequacy and receipt of which is hereby acknowledged.
B. Additional Consideration:
1. As noted previously herei n, Plaintiffs have applied for and
were granted a IIConditional Use Permit, II which permit shall expire and
( become null and void on May 23, 1990. Defendant hereby grants to
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Plaintiffs an extension of time within which Plaintiffs must complete the
construction of the garbage transfer station and fulfill all conditions made a
part of said IIConditional Use Permit. II Said extension shall terminate on
October 31, 1991. Said extension of time granted hereby represents two
consecutive construction seasons. It is understood by Plaintiffs that no use
or occupancy of the proposed transfer station will be permitted until all
improvements, both on and off site, are substantially completed.
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In the event that substantial completion is obtained by October 31,
1991 , but not full completion as contemplated by the IIConditional Use
Permit, II building permit or permits, site plans, or other mutually agreed
upon drawings or documents reflecting the project, both on and off site, as
fully and finally completed, then, and before use and occupancy of the
( tran sfer faci Iity , Plaintiffs shall furnish to the City of Bozeman a letter of
credit for 150% of the value, as determined by the City of Bozeman, of
those items or projects which rem a i n uncompleted as of October 31, 1991.
Said letter of credit shall remain negotiable through October 31, 1992. The
unfinished items or projects must be fully completed by Plaintiffs by July 1,
1992. In the event completion of th e unfinished items or projects is not
accomplished by Plaintiffs by July 1, 1992, the City of Bozeman shall be
entitled to draw upon the letter of credit for the purpose of funding the
cost of completion of the same.
2. Historically Defendant has levied the cost of waste removal
as annual special tax against the property from which such waste was
deposited in accordance with ~ 7-14-4106(1) M.C.A. (1989) . Said tax was
payable on the 30th day of November and represented an assessment of
( waste removal cost for the period beginning July 1 (immediately preceding
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the due date of November 30) through June 30, following the due date of
November 30.
The Defendant hereby ag rees that those properties presently served
by it and which / following the execution of this "Settlement Agreement/II
chose to be serviced by Plaintiffs shall not be assessed pursuant to
~ 7-14-4106(1) M.C.A. (1989) beginning on the last day of the calendar
quarter fol!owing the calendar quarter in which it elects to be serviced by
the Plaintiffs.
3. It is understood by the parties that the respective landfills
presently utilized by them have limited useful lives and that, therefore, the
parties may seek permitting for additional landfi II locations. By execution
of th i s ag reement, the parties agree, covenant and warrant that they shall
( not interpose any objection to the others permitting of additional landfill
areas or sites.
In the event Defendant requires the use of the Plaintiffs' proposed
garbage transfer facility, Plaintiffs agree, covenant, and warrant that they
shall allow such uti I ization of their premises, facilities, and services.
Plaintiffs furthermore ag ree that charges to Defendant for use of the
premises, facilities, and services shall be at a price to be negotiated
between the parties, with Defendant to receive a volume discount in
accordance with industry standards.
IV.
DISMISSAL OF ACTION
Concurrent with the execution of this IISettlement Agreementll the
parties hereto shall cause to be dismissed with prejudice that action
( identified as Three Rivers Disposal and Waste Management Partners of
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Bozeman Limited Partnership, an I Jlinois Limited Partnership v. City of
Bozeman and John Does I through X, Montana Eighteenth Judicial District,
Gallatin County, Cause No. DV 89-244. Each pa rty shall bear their
respective costs and attorney's fees.
V.
WARRANTY OF CAPACITY
Plaintiffs represent and warrant that no other person, firm,
partnership, corporation or other entity has, or has had, any interest in
the claims, demands, obligations or causes of action referred to in this
IISettlement Agreement; II that individuals executing this IISettlement
Agreement" on behalf of Plaintiffs have the sole right and exclusive
authority to execute this IISettlement Agreementll and to receive the benefits
specified in it; and, that Plaintiffs have not sold, assigned, transferred,
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conveyed or otherwise disposed of any of the claims, demands, obligations
or causes of action referred to in this "Settlement Agreementll or those
identified in the exhibits thereto.
VI.
ENTI RE AGREEMENT
This "Settlement Agreementll contains the entire agreement between the
parties hereto with regard to the matter set forth herein. There are no
other understandings or ag reements , verbal or otherwise, in relation
thereto, between the parties.
VII.
READING OF AGREEMENT
In entering into this "Settlement Agreement, II parties represent that
they have completely read all terms hereof and that such terms are fully
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( understood and voluntarily accepted by parties and that parties have been
adequately represented by counsel of their choice.
VIII.
FUTURE COOPERATION
All parties ag ree to cooperate fully, to execute any and all
supplementary documents and to take all additional actions that may be
necessary or appropriate to give full force and effect to the terms and
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intent of this IISettlement Agreementll which are not inconsistent with its
terms.
IX.
DRAFTING OF DOCUMENT AND RELIANCE BY PLAINTIFF
This IISettlement Agreementll has been negotiated by the parties
through their respective counsel. Plaintiffs warrant, represent, and agree
that Plaintiffs are not relying upon the advice of Defendant or anyone
associated with Defendant as to the legal or other consequences of any kind
arising out of this IISettlement Agreement. II Defendants warrant, rep resent,
and agree that Defendants are not relying upon the advice of Plaintiffs or
anyone associated with Plaintiffs as to the legal or other consequences of
any kind arising out of this IISettlement Ag reement. II Accordingly, the
parties hereby release and hold each other harmless and any and all counsel
or consultants from either of them from any claim, cause of action or other
rights of any kind which parties may assert because of the legal or other
consequences of this IISettlement Agreementll or other than those anticipated
by the parties.
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C X.
SUBMISSION TO ARBITRATION
I n the event there is any dispute relating to the terms of this
IISettlement Agreement, II breach of the terms, enforcement of the terms and
the like, such matters shall be determined by arbitration under the rules of
the American Arbitration Association and the Uniform Arbitration Act
(~~ 27-5-111 et seq. M.C.A. (1989)). Said arbitration shall be held in
Gallatin County, State of Montana. All parties shall be bound by the
determination of such arbitration.
tkh$ By:
Dat /
WASTE MANAGEMENT PARTNERS OF
BOZEMAN LIMITED PARTNERSHIP,
an Illinois Limi d Partnership
c.{ /171" f.)
Date CHAEL P. R
\ \ Authorizrd Re
~ -ZlJ to q\: JJl/ 1\ ' ; )
Date \ \ \ MICH :cr-c. COIL
Attorney for Plaintiffs
Da:! h" I '10 Q~~:-~~
Attorney for Plaintiffs
CITY OF BOZEMAN
)/.-20- 90 ~ Z'L\~c9z~
Date
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( .<) 1 CLAIM FOR DAMAGES
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THREE RIVERS DISPOSAL COMPANY )
4 and WASTE MANAGEMENT PARTNERS )
OF BOZEMAN, LTD., )
5 )
Claimants, )
6 plaintiffs, )
)
7 vs. )
)
8 CITY OF BOZEMAN and JAMES )
WYSOCKI, City Manager, )
9 )
Defendants. )
10 ) .
11 TO: THE CITY CLERK FOR THE CITY OF BOZEMAN, MONTANA:
12 Please be advised that Three Rivers Disposal Company and .
13 Waste Management Partners of Bozeman, Ltd., hereinafter
(
14 referred to as "W/M Partners, Ltd.", by and through their
1& attorneys, Michael C. Coil and R. Walter Connell, hereby
16 submit this Claim For Damages for filing and consideration by
17 the City of Bozeman pursuant to the provisions of 2-9-301, MCA
18 1987.
19 .The allegations of this claim are as follows:
20 l. Plaintiff Three Rivers Disposal Company is a
21 partnership doing business in Bozeman, Gallatin County,
22 Montana.
23 2. Plaintiff WIN Partners, Ltd. is a limited
24 partnership doing business in Bozeman, Gallatin County,
25 Montana.
I 26 3. Defendant, City of Bozeman, is a municipal
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27 corporation of the State of Hontana.
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1 4. Prior to April 7, 1986, Three Rivers Disposal,
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2 through its agent, Lowell W. springer, architect, requested a
3 building permit from the City of Bozeman for a refuse transfer
4 station facility to be located at 515 East Aspen in Bozeman,
5 Montana. The property where the transfer facility was to be
6 located was zoned 141, Commercial-Light Manufacturing. Because
7 a tr~nsfer station facility was not listed as a permitted use
8 in any zoning district in the City of Bozeman Zoning Code, and
9 in order to acquire the necessary building permit for the
10 construction of the transfer facility, Mr. Lowell Springer
11 requested an interpretation of the zoning code pursuant to
12 Section 18.06.050 on April 7, 1986.
( 13 5. On April 14, 1986, the Bozeman City Commission, after
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14 receiving input from the City's planning staff, the City
15 Attorney, Lowell springer, Bob Fagliano, General Manager of
16 Three Rivers Disposal Company, and others, pursuant to Section
17 18.06.050 of the zoning code, classified an enclosed transfer
18 station as a conditional use authorized within an HI zoning
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19 district. The ~ity Commission made this decision even though
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20 the City Manager and planning staff recommended that transfer
21 stations should be in M2 zoning districts. 1
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22 6. In reliance upon the City of Bozeman's apparent ~
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23 approval of its enclosed transfer station on its proper
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24 within the HI zoning district and because of the lengthy lead
25 time before equipment could be manufactured and obtained to
( 26 install in a transfer station, Three Rivers Disposal began
i 27 ordering equipment on April 21, 1986, to be installed in the
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( 1 transfer station to be constructed on Three Rivers Disposal's
2 property located 515 East Aspen in Bozeman, Montana.
3 7. subsequent to the ~ity commission's approval of
4 enclosed transfer stations being classified as a conditional
5 use in Ml zoning districts and the apparent approval of Three
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6 Rivers Disposal'S plan to build an enclosed transfer station
7 on i~s Hi site and prior to Hay 27, 1986, the Bozeman City :!
8 ~y, the City~, and the CitY/~,nninq j,JY
9 staff, without justification, decided to~vertu~~e lawful
10 decision of the Bozeman City Commission t04:lassify an
11 enclosed transfer station as a conditional use in H1 zoning
12 districts and further decided that a zoning ~~de amendment
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( 13 must be initiated in order to allow enclosed transfer stations
14 to be built in H1 zoning districts. As a result, and with the
15 knowledge of the Bozeman City Commission, the City/County
16 planning staff prepared an applicat;_~n ~~~~_~___zo~~_ code
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17 amendment to Section 18.52.140(n) to allow garbage transfer
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18 stations as a conditional use in H1 zoning district~. At a
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19 meeting of the Bozeman City Zoning commission on May 27, 1986,
20 the proposed amendment was discussed, and the Zoning
21 Commission passed a motion denying the application for said
22 zone change requesting that the planning staff process an
23 application to allow enclosed transfer stations as a
24 conditional use in H2 zQning districts. The motion was based
25 on the recommendation of the City/County planning staff that
( 26 transfer stations should only be authorized as a conditional
27 use in "2 zon1ng districts.
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( 1 8. On June 2, 1986, the Bozeman City Commission met and
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2 discussed the proposed amendment to the zoning code which
3 would have authorized transfer stations as a conditional use
4 in H1 zoning districts. Without any justification, the City
5 Commission reversed its original decision and disallowed the
6 proposed amendment and directed the planning staff to prepare
7 an amendment to the zoning code to only allow garbage transfer
8 stations as a conditional use in H2 zoning districts.
9 9. During the period of time subsequent to the Bozeman
10 City Commission' s actions on April. 14 , 1986,__ and the
11 Commission's actions on June 2, 1986, Three Rivers Disposal
12 had no actual knowledge that the City administration and its
13 planning staff actually intended to prevent Three Rivers
( 14 Disposal from constructing a transfer station on its property
15 located at 515 East Aspen which was zoned HI. Three Riv~rs ~
16 Disposal was not directly notified that the Bozeman City ~
17 Commission would be discussing the aforementioned amendment to
18 ~oning code at "__~ts J'!..ne~~eeting, even though a
19 neighboring property owner was~notified.by the City through
20 Commissioner Hary Vant Hul, and as a result, no
21 representatives of Three Rivers Disposal were present at said
22 commission meeting. In fact, Three Rivers Disposal had no . ~
23 idea that the City intended to actually reverse its decisi~ ~ -t; \,..A---
24 to allow Three Rivers Disposal to build an enclosed trans~l.
25 facility ~n its~per~~.
26 10. After the June 2, 1986, meeting of the City
27 Commission, Three Rivers Disposal was unable to obtain a
28 building permit at its site located at 515 East Aspen in the
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1 city of Bozeman. Besides being unable to obtain a building
2 permit, Three Rivers Disposal then began receiving complaints
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3 :rom the City of Bozeman about the operation of its business
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.. at the 515 East Aspen site. As a result of these complaints
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5 and restrictions placed upon the operation of Three Rivers
6 Disposal's business by the director of the planning
7 depar,tment, Three Rivers Disposal was unable to continue its
8 operations at that site. These operations included the
9 outside transfer of garbage and refuse which Three Rivers
I 10 Disposal had hoped to enclose within a modern transfer station
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I 11 facility at the time it requested a building permit. The
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12 outside transfer of garbage and refuse had been done by Three I
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14 six years prior to the time it applied for a building permit.
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15 This use was either a -grandfathered- use of the property or a
16 nonconforming use of the property.
17 11- Three Rivers Disposal's inability to build an
18 enclosed transfer station facility on its property located at
19 515 East Aspen because of the Bozeman City commission's
20 unjustified change of position concerning the enclosed
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21 transfer station within an H1 zoning district and the City's
22 attempts to prevent Three Rivers Disposal from operating its
23 business and using its land as it had done for a number of
24 years, forced Three Rivers Disposal to move its operation from
25 its site, acquire new property in very close proximity to the
( 26 original site, and begin the process of getting a conditional
\ 27 use pe~it, building peraits, etc., for the new .it..
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1 12. At the time the City of Bozeman decided that it would
2 not allow transfer station facilities in HI zoning districts
3 and relegated them to M2 zoning districts, it was a conunon
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4 belief that there was no available land zoned M2 outside of a
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5 flood plain within the City of Bozeman or its environs. By
6 not allowing transfer station facilities within HI zoning
7 districts, the City had in effect prevented Three Rivers
8 Disposal from building a transfer station facility in the
9 Bozeman area. Only extensive research by Three Rivers ~
10 Disposal enabled Three Rivers DispOsal to acquire the
11 aforementioned new parcel of land which was zoned H2.
12 13. The inability of Three Rivers Disposal to acquire
( 13 necessary building permits for a transfer station on its 515
14 East Aspen site resulted in the necessity of Three Rivers
15 Disposal expending the sum of $69,000.00 for the purchase of
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16 the new site, located within a M2 zoning district, and for
17 initial preparation and engineering work to date on said aite.
18 Further, Three Rivers Disposal will be required to expend an
19 additional $236,000.00 for site development work on the new
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20 site which would not have been necessary for the 515 ~ast
21 Aspen site. Such site development work includes street paving
22 and the installation of sewer and water lines.
23 14. The inability to build a transfer station facility on
24 the 515 East Aspen site cost Three Rivers Disposal a time
25 delay of almost three years in the construction of a transfer
( 26 station facility, and Three Rivers Disposal has
. 27 correspondingly lost the following savings in th~ operation of
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28 its business:
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1 Fuel Savings $ 54,000.00
2 Vehicle Depreciation $ '35,000.00
3 Savings in Disposal Costs
at the Livingston Incinerator v.
" Bozeman and Logan Landfills $ 110,000.00
5 Further, the three year delay has resulted in an increase of
G building costs of approximately $12,000.00, and an increase in
7 financing costs of approximately $72,000.00.
8 15. Because of continual complaints and threats regarding
9 nuisances by the City of Bozeman after June 2, 1986, Three
10 Rivers Disposal had to move to a new site in Four Corners. As
11 a result of this move, Three Rivers Disposal was sued by
12 Montana power Company for breach of contract on a contract for
( 13 deed on the 515 East Aspen site. Three Rivers Disposal
14 expended approximately $47,000.00 in attorney's fees and in
15 costs incurred in the settlement of said suit. Further, the
16 move from 515 East Aspen caused Three Rivers Disposal to have
17 increased operation expenditures because of the extra distance
18 that its trucks had to travel to Four Corners. Increased
19 operational expenditures attributable to Three Rivers -
20 Disposal's move from the 515 East Aspen site to the Four
21 Corners site are as follows:
22 Additional Fuel Costs $ 36,000.00
23 Additional Employee Overtime $ 6,000.00
24 16. The costs incurred by Three Rivers Disposal to
25 acquire and develop a new .ite for its transfer station, and
( 26 its costs incurred as a result of its forced move to Four
. 27 Corners all result from an unlawful inverse con~emnation of
28 the 515 East Aspen property and an unjust taking of Three
. -... .~. ".." ..___.,_ __.~~..'" ...."_ '_.._._.~...w.:~_"~."'~'_. ~_".,... ~.~....__ ...nn .
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1 Rivers Disposal's property rights without due process of law
2 and without compensation in violation of the Fifth and
3 Fourteenth Amendments to the U.S. Constitution and Article II,
4 Sections 3 and 17 of the Montana constitution.
S 17. The administration of the City of Bozeman knew that
G it may have to develop a new landfill site andlor build a
7 transfer station of its own in order to continue to provide
8 solid waste disposal services for the City of Bozeman and to
9 safely dispose of Bozeman's solid wastes. The necessity of
10 developing a new landfill and the possibility of the City
11 building a transfer station of its own was discussed at the
12 April 14, 1986, meeting of the Bozeman City Commission. As a
13 result, the Bozeman City administration did not, and does not
- -----------
14 want Three_~ivers Disposal to b~_able to compete with the City
15 of Bozeman for solid waste disposal at its own transfer
16 station. The City administration acted maliciously,
17 oppressively and in bad faith when it overruled the lawful
18 interpretation of the City zoning Ordinance by the City
19 Commission which allowed enclosed transfer station facilities
20 as ~ use within H1 zoning districts, and when it
21 further encouraged and influenced the city Commission to
22 reverse its initial decision and only allow transfer station
23 facilities as a conditional use in M2 zoning districts, thus
24 preventing Three Rivers Disposal from continuing to develop
25 its property located 515 East Aspen for an enclosed transfer
26 station.
27 18. The Bozeman City administration and ci~y Commi..ion
28 are planning on taking away approximately 529 customer. of W/M
. -..Jr,_, _". ~"..,.".".,'~" ~ ,,~.~ . ~ ..... .,.,~ ...u._..............._ ~_, _,...,,~ ,. _.., .: o,~. .._ ~.~_~_.r_. .' ._.,~.'"'.._, ..,~..._...........,".......'_.....,r_.._ - '-~.' ..-- .-.,
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1 Partners, Ltd. and Three Rivers Disposal within Bozeman to
2 generate additional revenues for the City of Bozeman as has
3 been discussed at the
4 April 14, 1986, meeting of the City Commission and at
5 subsequent public meetings. The Citr adminstration knew at 1
G the time that it overturoed----t.he.-Commission's deci~ion ~ V'
---------------_.~ ---~--------- "-- -
7 interpret the HI zoning district provisions of the City Zoning
8 Ordinance to include transfer station facilities as a
9 conditional use, that the preventing and/or delaying of Three
10 Rivers Disposal's building of an enclosed transfer station
11 would increase W/H Partners, Ltd. and Three Rivers Disposal's
12 costs of providing services to their customers within Bozeman,
13 thereby placing W/H Partners, Ltd. and Three Rivers Disposal
14 at a competitive disadvantage with the City of Bozeman for
15 providing solid waste disposal services within Bozeman. The
16 City of Bozeman further acted in bad faith and abused its
17 power over Three Rivers Disposal at various times when it
18 attempted to prevent or delay Three Rivers Disposal'S transfer
19 station facility. The City has also attempted to restrict .."
-
20 ~iV-"rs D~.~,,-~.___~~!_L to_ .el'a.r~te"-:ecycliibl"--- if?'
21 materials within its proposed transfer station, which could
....-------~"'------...... -- ------------..........
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22 lower Three Rivers Disposal'S operating costs. The city of
23 Bozeman's exercise of power in this matter constituted an
24 unfair method of competition in providing solid waste disposal
25 services to residents of the Bozeman area in violation of
\ 26 Section 30-14-103, MCA 1981.
, 27 19. The administration of the City of Boze~an haa known
28 that its landfill has serious environmental problems
. ( ( ( I
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( 1 including, but in no way limited to, the fact that hazardous
2 materials such as cyanide, arsenic, nitric acid, sulfuric acid
3 and hydrochloric acid have been unlawfully dumped at the 1-
4 landfill and the fact that leachate from hazardous materials ~
5 within the landfill have been contaminating ground water 'v1
- ~--
I 6 aquifers. The City administration has also known that it has
I
7 not been meeting state and federal landfill operation
'1
8 requirements such as, but not limited to, state mandated- .
9 requirements to supply ground water sampling data. The Cit~
,~~_............ ~ ..........------~.------..-------.---'............~---------......^-
10 administration knows or should have known that the costs
11 facing the City of Bozeman to clean up and correct its
12 landfill problems, to develop a new environmentally sound
13 landfill and/or to build a transfer station facility are
14 substantial. However, the City of Bozeman has not set its ~
15 rates for solid waste disposal~~t a lev~l_ ~
16 sufficiently high to provide for landfill clean up and
17 development costs. The Clty-olEBozeman-ls intentionally
r~~- ---,- ..- ---~~,--- -----..~
18 overlooking a serious potential environmental and economic
19 crisis because of its landfill in an effort to maintain
20 artificially low rates for solid waste disposal. The real
21 cost of providing these services, when the costs for proper
22 clean up of the existing landfill and the development of an
23 environmentally sound landfill are added in, would require
24 substantially higher rates.
25 20. The City of Bozeman is directly competing against WIN
\ 26 Partners, Ltd. and Three Rivers Disposal for customers within
27 the Bozeman area, and the competition is solely based on the
28 cost of the solid waste disposal services. Since the City of
. ,.. ,_.,-"~ ... . ~ . - .'" ,_., ~ ~ .-... ..---....... .
. .. . ~. . - ~ - ~ ,. ,~ . '~ . . .
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1 Bozeman is providing and offering to provide these services at /L
)'"
less than their real cost for the purpose of gaining an unfair 1/
2
-- ----_.~-
3 competitive advantage, it has damaged WIM Partners, Ltd. and
4 Three Rivers oisposal and has violated the provisions of
5 Section 30-14-201, et seq. MeA 1987.
6 21- In addition to unfair competitive practices, the
7 Bozeman City Manager and possibly other appointed and elected
,
8 officials of the City of Bozeman have in bad faith and
9 maliciously attempted to tarnish the reputations of both Three
10 Rivers oisposal and its officers and agents. Said campaign
11 has included, but is not limited to, personal attempts by the 7
,
12 city Manager, James wysocki, to discredit Robert Fagliano, V
-~ ----......------....-..,-,.-
13 General Manager of Three Rivers Disposal, in the presence of
14 representatives from Waste Management, Inc., a company
15 affiliated with Three Rivers Disposal. Said attempts to
16 discredit Hr. Fagliano occurred when Waste Management was
17 exploring the possibility of entering into a contract with the
18 City of Bozeman for maintaining and operating the Bozeman
19 waste water treatment plant.
1
20 22. The Bozem~~_~_ity__~anager, __-!alIl~s wysocki, has y
.----------- ... ..~--,.-~.-
21 tortiously interfered with a coptkO~t~e~~e~ the Cit~"of
22 Belgrade and Three Rivers Disposal Company during the first
23 half of 1986 when Three Rivers Disposal and the City of
24 Belgrade were negotiating a contract. The City Manager
25 cautioned the Belgrade Mayor to be careful about entering into
26 a long term contract with Three Rivers Disposal because other
j 27 competitors, maybe even the City of Bozeman, may be interested
28
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1 in providing solid waste disposal services for the City of
2 Belgrade.
3 The facts alleged herein show a consistent pattern of
4 aggression, oppression, and intimidation by the City of
5 Bozeman and various City employees and officials in violation
6 of the Claimants' civil rights as protected by both state and
7 federal law. Further, said aggression and intimidation may
.
8 fall within the purview of the federal Racketeer Influenced
9 and Corrupt organizations statutes, 18 use, Section 1961, et
.
10 seq. , (RICO), and Claimants hereby demand any damages to which
11 the Claimants may be entitled pursuant to said RICO statute
12 and civil rights' laws, state or federal.
( 13 WHEREFORE, the Claimants, Three Rivers Disposal And W/M
14 Partners, Ltd., hereby demand that the City of Bozeman pay to
15 Three Rivers Disposal the sum of $677,000.00 for damages
16 suffered for inverse condemnation and wrongful taking of
17 property rights without compensation, for bad faith, for
18 unfair methods of competition, including the unlawful sale of
19 an article of commerce at less than cost, and for tortious
20 interference with contract. Additionally, if this matter goes
21 to trial, Claimants will seek punitive damages and attorney's
22 fees allowable by law. Further, the Claimants hereby demand
23 that the City of Bozeman cease and desist its unfair methods
---
24 of competition and its unlawful offering of solid waste
------"-_._------------_._..._--_._-~----~ . --
25 disposal services at les8 than the real cost thereof. Please
( 2G be advised that if the City of Bozeman does not cease and
l 27 desist, the Claimant. will request that all damages
.
28
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1 attributable to unfair methods of competition be trebled
2 pursuant to the provisions of Section 30-14-222, MCA.
3 \ L\i \,
DATED this day of April, 1989.
-4
5 THREE RIVERS DISPOSAL COMPANY
and WASTE MANAGEMENT PARTNERS
6 OF BOZEMAN, LTD.
Plaintiffs/Claimants
7 ,
, , ~ 'I · i
8 .....,i1j I I
B~ I'Y '\ \.J \ 001 \ If.:>..../
9 Michael- C. Coil - v \
10 Attorney at Law
Post Office Box 6059
125 West Mendenhall
11 Bozeman, Montana 59771-6059
(406) 586-8949
12
( 13 . , <<.'
..-. t. ,
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By ,.."_) r, '. . ", '.1\: '" '~'.' .
14 R. Walter Connell
Attorney at Law
15 125 West Mendenhall
Bozeman, Montana 59715
1G (406) 587-7496
ATTORNEYS FOR PLAINTIFFSI
17 CLAIMANTS
18
19 CERTIFICATE OF PERSONAL SERVICE
20 hereby certifies that on the
21 day of April, 1989, a true and accurate copy of the
22 foregoing CLAIM FOR DAMAGES was duly served in person upon the
23 following party:
24 Ms. Robin Sullivan
25 Clerk of the City of Bozeman
411 East Main Street
( 2G Bozeman, Montana 59715
27
28
,., -- . .. ., ~ '.. '. .. . . - , . . .
.' - ~ " '.' :~.. ....... ,........ ...._~..-'~ .".-.--. ,'- ,'~...........~ >
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1 MICHAEL C. COIL
C Post Office Box 6059
J 2 125 West Mendenhall
Bozeman, Montana 59771-6059
3 Telephone: (406) 586-8949
ATTORNEY to'OJ{ PLAl NT n'l-'S
4
R. WALT~R CONN~LL
5 125 West Mendenhall
Bozeman, Montana 59715
6 Telephone: (406) 587-7496
ATTORNEY FOR PLAINTIFFS
7
MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY
8
, * * * * . * * * * *
9
THREE RIVERS DISPOSAL and ) No. DV 89-244
10 WASTE MANAGEMENT PARTNERS OF ) .r
BOZEMAN LIMITED PARTNERSHIP, )
11 an Illinois limited partnership, )
) \
12 plaintiffs, )
)
13 . vs. )
, " .,. )
I ( 14 tITY OF BOZEMAN and JOHN DOES I ) ~
) THROUGH X, ) .
15 )
. Defendants. )
16 )
17 * * * * * . . * . *
18 COMPLAINT AND DEMAND FOR JURY TRIAL
19 * * * * * * . * . *
20 COME NOW the plaintiffs and complain and allege as follows:
21 INTRODUCTION
22 FACTS COMMON TO ALL COUNTS
23 1. plaintiff Three Rivers Disposal is a partnership
'\) 24 authorized to do business in accordance with the laws of the
25 State of Montana and. doing business in Bozeman, Gallatin county,
2G Mon tana .
( ) 27 2. plaintiff Waste Management partners of Bozeman Limited
') 28 partnership, an Illinois limited (W " partners), 1s
i ~
~~' " " , ~,. '. .~_ .'" -,.,."T.- .-:,.,",. :~:~. ~-, .,". ~."'...~ .'.~'...~... ~ ~~'.; J'I... .~". : ,: ::.," .:.'~'''';'.';''';'-;_.~,-';-,,,,~,,,..-,..,,.........~,~ - .~...
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," )
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.
.
. 1 a limited partnership organized and authorized to do business in
( 2 accordance with the laws of the State of Montana and doing
,J
3 business in Bozeman, Gallatin County, Montana.
J\ 4 3. Defendant, City of Bozeman, is a municipal corporation
! of the State of Montana.
5
I
! 4. That the plaintiffs believe that the individual John
6
7 Does I through X are residents of the State of Montana or were
8 doing business in the State of Montana or had other minimum
~\~ ,
'11 9 contacts with the State of Montana at the time of tne occurrence
vJ
10 set out below and, therefore, plaintiffs allege that said
11 parties were residents of the State of Montana at all times
12 relevant hereto and are theref~re subject to the jurisdiction of
13 the State of Montana. That the John Does I through X are
( 14 ~arties which may have been inv~lved in the occurrence set out
) 15 herein, may have been agents of, employers of, employees of,
16 franchisors or franchisees of, ~r contractually obligated to the
17 named oefendants or had some other legally binding connection to
18 the named oefendants and, therefore, said Defendants John Does I
19 through X may have committed one or more of the acts set out
20 he~ein or.may be responsible through the laws of the State of
. -,~
21 Montana for the acts of the named Defendants as set out herein.
22 plaintiffs believe and therefore allege that the John Doe
23 oefendants 1 through X may have committed one or more of the
24 acts set out bel~w and that they would therefore be liable for
25 the same. plaintiffs will amend these pleadings as the case
..
26 progresses t? specify the various acts of the Defendants John
( 27 Does 1 through X including their identity.
)
5. prior to April 7, 1986, Three Rivers Disposal, through
28
2
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1 its agent, Lowell W. Springer, architect, requested a building
,. ..
( 2 permit from the City of Bozeman for a refuse transfer station
)
3 facility to be located at 515 East Aspen in Bozeman, Montana.
4 Said property was zoned MI, Commercial-Light Manufacturing.
5 Because a transfer station facility was not listed as a
6 permitted use in any zoning district in the City of Bozeman
7 Zoning Code, and in order to acquire the necessary building
8 pe,rmit for the construction of the transfer facility, Mr. Lowell
9 Springer requested an interpretation of the zoning code pursuant
10 to Section 18.06.050 on April 7, 1986.
11 6. On April 14, 1986, the Bozeman City Commission, after
]2 receiving input from the City's planning staff, the City
13 ~torney, Lowell Springer, Bob Fagliano (General Manager of
0 14 T~iee Rivers Disposal), and others, pursuant to Section
)
15 18.06.050 of the zoning code, classified an enclosed transfer
----"---_. ~_.-
16 station as a~d~~i~~~~~ySe authorized within an Ml zoning
17 district. The City Commission made this decision even though
18 the City Manager and planning staff recommended that transfer
19 stations should be in M2 zoning districts.
20 7. In reliance_~~ the Cit~~!__~Q;emj~n's~pproval for_~n
~
21 enclosed transfer station in the Ml zoning d~~~rict and be_cause
_,..............~ ___~_ __ .~ft__~____
~ ~~-------------- - ----------~
22 of the lengthy lead time required to obtain transfer station
!.:)~l 23 equipment, Three Rivers Disposal began ordering equipment on
it 24 April 21, 1986, to be installed in the transfer station to be
25 constructed on Three.Rivers Disposal's property located 515 East
~~ Aspen in B~~~~~,~ Montana~ - Thereafter, plaintiffs requested a
. _.-......-...-~._..__._r_ _
( 27 bu ildi ny permit fc')m the l.lc [cndan t, wh i ch was c?nt i nually
)
28 delayed as hereinafter set forth until the Defendant took action
3
.,
. ..' .'~'__ .r_....~._ ~.....__~,.~ .,"-.&_.._".,,;..._.& , . .._.......~~~~."""..~...~ ...... r..... &,..,___'..
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,:.-. -
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to bar construction of a transfer station in an Ml zone. ~
(
) 2 8. subsequent to the City Commission's approval of ~
t
- _.' ,._~'~_r _-----'" _------.-----""--------
enclosed transfer station as a conditional use in Ml zoning
_..._-"--_...."..,......,._--"-' , ~.~~
districts and the approval of Three River's plan to build an
...-.-.----".........-------.--~..--.- ._.__ __ ___.__u _.__~....._._._.~_..~. ..~,,--.- -.. .-. ---,_.._.._--_._~_.~~---
enclosed transfer station on its HI site and prior to May 27,
1986, the Bozeman City Attorney, the city Manager, and the
1) City/county planning staff, without justification, attempted to
re~erse and subvert the lawful decision of the Bozeman City
Commission to classify an enclosed transfer station as a
conditional use in an Ml zoning district and further decided
--- _.- .~.-----""-------~"""-
11 that a zoning code amendment would have to be initiated in order
.- ---.-.--.--'- -., -- .- -.-- -,_. _ -. -. -.- --...- .- , ---.- ----. --... -. _.---~._---~-~ ---~.-
-_._~~._._.. -.-. -.. ._..~.~.~._.-
12 to allow enclosed transfer stations to be built in Ml zoning
-----~"~-- -' -~ --.-,.--.- -~~_. . - -----.- - - -_.__..~ --- ..-.-. _.~.- ..~--_.~.....---................~-----------' -,
--- .--." _....-
districts. As a result, and with the knowledge of the Bozeman
~---~.-
. 't .,. . the City/County planning staff prepared an
( Clty Commisslon,
application for a zone code amendment to section l8.52.l40(n) to
allow garbage transfer stations as a conditional use in an Ml
,~~-~............---~.._._----------...~-- -------
zoning district. At a meeting of the ~~~~an Cit~.-!oning._,
~~_._-I.r ~._------- --..........---- ------.............-- - ~ --- -
Commission on May 27, 1986, the proposed amendment was
-~--~- -_._'.~. - ... ._--_._~._...._- --".._--_.---~.~---~~...._~ ..----------._-~-~
-
19 discussed, and the zoning Commission passed a motion denying the
------. -' ..---.- - ."..-.' - _ .- .."'- .~-~ .-.- ..~-" ..-.--.. __~..._~___._..~..._.~_~..___._~_~r__~~~
-. -
20 application for said zone change and further requested that the
__---------- ..._ __...._ _n_'___' _m_~. ,____'__ ___ ___ _ _ _ ___ ___ ___,__,,_._n_________._ --,---"-,
21 planning staff process an application to allow encl~sed transfer
~---_... -- - ~ ---------- ---.---
~-- -~----- -_.~._._._.~.._._- _.~ ,_., .~~_..__._'--~..~. ~-- ..
22 stations as a conditional use in H2 zoning districts. The
~---,--------------------- ---~-~~-~- --~ --~- -~.-.... -~-_.__.~. ~~-' _._.~~_.:.
23 request was based on the recommendation of the City/County
24 planning staff that transfer stations should only be authorized
25 as a conditional use~in M2 zoning districts.
26 9. On June 2, 1986, the Bozeman City Commission met and
( ) 27 discussed the proposed amendment to the zoning code which would
28 have authorized transfer stations as a conditional use in an HI
4
I.
, ,~,." '..".'~;'..~ ,.-,-"....'.' ~,~--..,-~. ;::-.- ..:.'\ ';. -~' ~&. '~, . ~ . . ,& -..
- .-. ~,- -- ,,-
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. .
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. 1 zoning district. without justification, the City Commission
,J 2 reversed its original decision and disallowed the proposed
3 amendment and directed the planning staff to prepare an
4 amendment to the zonino code to only allow garbage transfer
5 stations as a conditional use in an "2 zoning district.
6 10. During the period of time subsequent to the Bozeman
7 City Commission's actIons on April 14, 1986, and the
8 Commission's actions on June 2, 1986, Three Rivers Disposal had
9 no knowledge that the city administration and its planning staff
10 actually intended to prevent Three Rivers Disposal from
11 constructing a transfer station on its property located at 515
12 East Aspen which was zoned MI. Three Rivers Disposal was not
y 13 notified that the Bozeman City Commission would be discussing
. .. -:. ..
14 ehe aforementloned amendment to the zonlng code at its June 2,
) 15 1986, meeting, ev-n though a neighboring property owner was
16 notified by the City through Commissioner Mary Vant Hult. As a
17 result no representatives of Three Rivers Disposal were present
18 at said Commission meeting. Three Rivers Disposal was never
19 advised that the City intended t~ actually reverse its decision
20 to allow Three Rivers Disposal to buil~an enclosed transfer
21 facility on its property.
22 11. After the June 2, 1986, meeting of the city Commission,
23 Three Rivers Disposal was denied a building permit for its site
24 located at 515 East Aspen. Thereafter, Three Rivers Disposal
25 began receiving compLaints from the City of Bozeman about the
,.--.., operation of its business at 515 East Aspen.
1) 26 As a result of the
1\ ) 27 foregoing complaints and restrictions, Three Rivers Disposal was
28 unable to continue its operations at 515 East Aspen. These
5
,I
. ..,...... . .. ,. . . . ,. . ~""h""~~""""'."''''' ,'__'...""......,~:....",~,'- ",. , .'. .': ...~.1!'...""""'~.._'....~. ................."'.'L.... Y... . \, _",~ .. .,~..~.........'7,~,__. ..,_~.; .'1<1' .
", ) .
. .. . .
. .
.
- 1 operations included the outside transfer of garbage and refuse
( ,) 2 which Three Rivers Disposal had intended to enclose within a
3 modern transfer station facility at the time it requested the
.. building permit. The outside transfer of garbage and refuse had
5 been done by Three Rivers Disposal and its predecessor for
6 approximately five or six years prior to the time it applied for
7 a building permit. This use was either a -grandfathered- use of
8 the property or a nonconforming use of the property.
9 12. Defendants' acti~ns forced Three Rivers Disposal to
10 move its operation from 515 East Aspen, acquire new property in
11 an M2 zone in very close proximity to the original site, and
12 begin the process of getting a conditional use permit, building
13 pe rm its, e t c . , for the new site.
14 ..- At the time the City of Bozeman decided that it would
, 13.
) 15 not allow transfer station facilities in MI zoning districts and
1G relegated them t~ M2 zoning districts, it was a common belief
17 that there was no available land zoned M2 outside of the flood
V 18 plains within the City of Bozeman or its jurisdictional
19 boundaries. By not allowing transfer station facilities within
20 Ml zoning districts, the City tried to-prevent Three Rivers
-
21 Disposal from building a transfer station facility in the
22 Bozeman area. Only extensive research by Three Rivers Disposal
23 enabled Three Rivers Disposal to acquire the aforementioned new
2~ parcel of land which was zoned "2.
25 14. Defendants'.actions required Three Rivers Disposal to
2G expend the sum of $69,000.00 for the purchase of the new site
) -", 27 and $236,000.00 for initial preparation, engineering and site
U
28 development work on the new site which would not have been
6
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. . . . ) ')
. .
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- 1 ecessary at 515 East Aspen. Such site development work
.';1 , ....
" 2 'ncludes street paving and the installation of sewer and water
.J
3 ines.
4 15. The inability to build a transfer station facility at
5 15 East Aspen cost Three Rivers Disposal a time delay of almost
6 hree years in the construction of a transfer station facility,
... nd Three Rivers Disposal has correspondingly lost the following
I
IS in the operation of its business:
y ,
9 Fuel Savings $ 54,000.00
10 Vehicle Depreciation $ 35,000.00
I
11 Savings in Disposal Costs
at the Livingston Incinerator
12 versus Bozeman and Logan
Landfills $110,000.00
13 .
. 16. The City's actions after June 2, 1986, forced Three
-.-
14 ..-. .'
. ivers Disposal to move to a new site in Four Corners.
As a
) 15 of this mOve, Three Rivers Disposal was sued by Montana
]6 ower Company for breach of contract on a contract for deed for
]7 he property at 515 East Aspen. Three Rivers Disposal expended
18 pproximately $47,000.00 in attorney's fees and costs in the
19 ettlement of said suit. Further, the move from 515 East Aspen
20 aused Three Rivers Disposal to have increased operation
21 xpenditures because of the extra distance that its trucks had
22 to travel to four Corners. Increased operational expenditures
~, attributable to the move from 515 East Aspen to Four Corners are
24 as follows:
25 Additional Puel Costs $36,000.00
26 Additional Employee Overtime $ 6,000.00
) 27 11. The administration of the City of Bozeman knew or
28 should have known that it would have to develop a new landfill
1
I'
... _ .~',... _'m,'_'.,;~.'r''''~:''',''''"""""""_'!...,:,~,.'',,:;,,,,:.:+..._.,~~.,..: ..'.' ."_ ........,__......._. "~>...:........ ...',....l.,:,_", n._'.....,.,. ~ ,~"".,.....;._......::-~~',~..~.:..._.'. -'u_.....:_
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. .. . ) ")
. .
.
. 1 site and/or build a transfer station of its own in order to
') ontinue to provide safe solid waste disposal services for the
) ..
3 citizens of the City of Bozeman at a reasonable cost.
The
4 necessity of developing a new landfill and the possibility of
V 5 the City building a transfer station of its own was discussed at
6 the Apr i 1 14, 1986, meeting of the Bozeman City Commission. As
7 a result, the Bozeman City administration did not and does not
8 want Three Rivers Disposal to be able to compete with the City
9 of' Bozeman for solid waste disposal at its own transfer station.
10 18. At the City Commission meeting of April 14, 1986, and
11 during subsequent public meetings, Defendants have stated that
\) 12 they intend to take 529 customers of W M Partners, Ltd., and
13 ~bree Rivers Disposal within Bozeman to generate additional
14 ~~enues for the City of Bozeman.
· ~he administration of the City of Bozeman knew or
) 15
16 should have known that its present landfill has serious
17 environmental problems including, but not limited to, the
18 unlawful dumping of materials at the landfill. ~achate from
19 hazardous materials within the landfill has been contaminating
20 ground water aquifers adjacent to the landfill.GDThe City
.--- 2. administration also knew or should have known that it has not
\,)
been meeting state and federal landfill operation requirements
Z.l
23 such as, but not limited to, state mandated requirements to
24 supply ground water sampling data. The City administration knew
25 or should have known that the costs facing the City of Bozeman
..
26 to clean up and correct its landfill problems, to develop a new
27 environmentally sound landfill and/or to build a transfer
)
~ station facility are substantial. However, the City of Bozeman
28 \
8
. . ) )
\ ,
.
. 1
has not set its rates for s~lid waste disposal services at a
(:: 2 level sufficiently high t? provide for landfill clean up and
)
3 development costs. The City of Bozeman is intentionally
4 overlooking a serious potential environmental and economic
5 crisis because of its landfill in an effort to maintain
6 artificially low rates for solid waste disposal. The real cost
7 of providing these services, when the costs for proper clean up
8 of the existing landfill and the development of an
9 environmentally sound landfill are added in, would require
10 substantially higher rates.
11 20. The City of Bozeman is directly competing against WIM
12 partners, Ltd., and Three Rivers Disposal for customers within
V 13 the Bozeman area, and the competition is solely based on the
14 the solid waste disposal services.
-) 15 The Bozeman City Manager and other appointed and
16 officials of the City of Bozeman have in bad faith and
17 maliciously attempted to tarnish the reputations of both Three
18 Rivers Disposal and its officers and agents. Said campaign has
19 included, but is not limited to, personal attempts by the City
~ 20 Manager, James WYSOCki, to discredit Robert Fagliano, General
21 Manager of Three Rivers Disposal, in the presence of
~ representatives from Waste Management, Inc., a company
~ affiliated with W M partners. Said attempts to discredit Mr.
24 Fagliano occurred when a subsidiary of Waste Management, Inc.,
~ was exploring the poasibility of entering into a contract with
26 the City of Bozeman for maintaining and operating the Bozeman
\ ) 27 waste water treatment plant.
'-p 28 22. During the first half of 1986, Three Rivers Disposal
9
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- - "".1'1' ~.~ _. ..w ." . .. "' --
.
) ) I
. .,
. ,
.
. 1 and the City of Belgrade were negotiating a contract for solid
( 2 waste pick-up services. The City Manager, James Wyoscki,
)
3 cautioned the Belgrade Mayor to be careful about entering into a
4 long term contract with Three Rivers Disposal because other
5 competitors, including the City of Bozeman, were interested in
6 providing solid waste disposal services for the City of
7 Belgrade.
8 ~ That on or about May 26, 1989, the agents and employees
.
9 of the plaintiffs were taking water samples from certain test
10 wells located on the property of one paul Boylan adjacent to the
11 landfill. That plaintiffs were on said property with the
12 permission of the landowner and they were sampling the well on
13 said property which had been drilled by the State of Montana,
14 .de~artment of Mines and Geology, with the permission and
) 15 authority of said Paul Boylan. That plaintiffs believe and
16 therefore allege that Boylan owned said well. That said well was
17 outside of the jurisdictional boundaries of the oefendant. That
.
18 on said date plaintiffs and its agents and employees were
19 confronted by City police officers from the City of Bozeman who
20 alleged that they were acting under authority of the City of
21 Bozeman and unlawfully restrained the plaintiffs from
~ the water in said well. That no arrests were made by said
~ police officers and no citations were ever issued thereafter.
24 That plaintiffs believe and therefore allege that said City
~ police officers were instructed by their superiors or other
.
2G employees or agents of the City of Bozeman to go to the cite a
27 restrain the Plaintiffs' employees and agents.
) 24. That plaintiffs have been required to retain the
y 28
10
II ;1
. . . ) )
I
. !
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1 services of Michael C. Coil, Post Office Box 6059, Bozeman,
( 2 Montana, and R. Walter Connell, 125 West Mendenhall, Bozeman,
)
3 Montana, to prosecute this matter on their behalf.
4 25. plaintiffs have complied with the provisions of S
5 2-9-301 et seq., MCA 1987.
6 COUNT I
7 INVERSE CONDEMNATION
8 26. plaintiffs reallege all of the allegations set out in
9 the introduction and alternate counts of, this Complaint.
10 27. That since April 14, 1986, plaintiffs had an actu~1
11 vested righ~ to develop a transfer station at 515 East Aspen" in
\) 12 that the same was located in an Ml zone and that said
13 development was determined by the oefendants to be a proper use
14 .'. - .
bf property located In an Ml zone.
) 15 28. That thereafter the Defendants did without notice and
16 in violation of Federal, State and Municipal law take said
y 17 rights from the plaintiffs and that said taking was without
compensation in violation of the Fifth and Fourteenth Amendments
18
19 to the U.S. Constitution and Article II, 55 3 and 17 of the
20 Montana Constitution.
21 29. That said acts of the oefendants in addition to taking
22 the vested right of the plaintiffs in said property also was a
y 23 taking and condemnation of the property itself all in violation
24 of Federal, State and Municipal ordinances, including
25 constitutional violations as set out above.
26 30. The oefendants' acts constitute taking of Plaintiffs'
\, ) 27 property rights in the subject property and the property itself
28 for public purposes and without payment of just compensation all
11
.- . ~
.._",'.,-
. ') )
, .
1 in violation of the Federal, State and Municipal law and the
t. 2 Constitutional provisions set out above. Such taking is a
)
\) 3 permanent taking and plaintiffs are entitled to compensation for
4 the full value of each of the rights and the property unlawfully
5 taken by the Defendants.
G 31. plaintiffs are entitled to damages for just
\) 7 compensation for the taking of their property and rights,
8 including compensatory damages for the costs of relocation, all
{} as set ou t below. , f'> {. e~
- y."''>-
. ~.r"i J" ,~ '
10 ! y-,rl 1jJ!:,r ,..r.,;i';'- . COUNT 2
, ,," ~,v .J .~r~) ·
/',-A'" "l, t.- . '1:1 L- ~
., ... I-..'~ . )'''',.,S'~/F-'91b,'' VIOLATION OF THE OBLIGATION OF GOOD FAITH .....,-z..... r!t'il
'Y' 11
. \-;:t'~' .~
c,... ...1' ,.r ,
vI ~~" t...'- ~
, .... AND FAIR DEALING ' ~ /".~ :
:.\ I _' ,_' 12
"" .IJ
'I'
1--1 . 13 - 32. plaintiffs reallege all of the allegations set out in
-
14 .~he introduction and alternate counts of this Complaint.
..
) 15 33. The City Administration acted maliciously, oppresively
16 and in bad faith when it atte-pted to reverse and subvert the
17 lawful interpretation of the City Zoning Ordinance by the City
18 Commission which allowed enclosed transfer station facilities as
-\j
19 a conditional use within Hl zoning districts, when it delayed
20 issuance of construction permits, and when it further encouraged
21 and influenced the City Commission to reverse its initial -
22 decision and to only allow transfer station facilities as a
23 conditional use in M2 zoning districts, thus preventing Three
24 Rivers Oisposal from continuing to develop its property at 515
2r, Eas t Aspen.
..
26 34. The oefendants have c?mmitted numerous other acts of
( 1) 27 bad faith all as outlined above including but not limited to
)
28 their attempts t? unfairly compete with the plaintiffs in
12
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,
, .
1 violation ~f the stated lawful policies of the State of Montana,
('
) 2 their attempts to drive the plaintiffs out of business by
3 restricting transfer stations to a zoning district in which
4 there was no available land for construction within the City of
5 Bozeman, their campaign of complaints and harassment of the
G plaintiffs at 515 East Aspen preventing the existing use of the
7 property, their attempt to price their solid waste collection
8 service below the fair price by failure to include the cost of
,
9 maintaining and upgrading the Bozeman Landfill, ~eir attemp~d
10 restriction of ':Plai~~~fll.:~!.~~titPto impiement a - recyclincj
11 _ . '-.', . - ,-t~ n_
operatiQn at its proposed transfer station contrary to the,:,
12 public policy of the State of Montana as set forth in MCA 5
13 75-l0-l02(1)(a), and the use of its employees and police
14 ... -
officers to attempt to prevent the plaintiffs from gathering
)
15 test data about the hazardous wastes leaching from the City
16 Landfill. " ,<'
r ;"r/ in <" r
,,"
17 Y/lY"" u:: COUNT 3 ~ b'" rp.. >4 ~,!,~t')
18 I)..,....... ... ,. :I'" "... ,t.-- ,~...,
.......AI UNFAIR COMPETITION J, . 'fir- ......
f,r
19 35. plaintiffs reallege all of the allegations set out in
20 the introduction and alternate counts of this Complaint.
21 36. Defendant has abused its governmental powers by
22 engaging in unfair methods of competition with private industry
23 to provide residential waste collection services in Bozeman i
24 violation of 5 30-14-103 and S 30-14-205, MCA, 1987.
25 37. In furtheraRce of its unfair methods of competition,
I 26 oefendant has engaged in anti-competitive and predatory conduct,
) 27 including but not limited to:
28 A. Defendant has prevented and/or delayed plaintiff's
i I: 13
.
,- .
") ) l
. .
.
.
.
( 1 construction of an enclosed transfer station by
-) 2 manipulating zoning regulations.
3
4 B. Defendant has charged predatory, below-cost prices f~r
5 solid waste collection services.
6
7 C. Defendant has accumulated signatures on a petition to
8 take customers away from plaintiff in contravention of
9 5 7-13-4107, MCA, 1987, which requires 5 years notice
10 or just compensation be given to private waste disposal
11 services.
12
13 . 38. Defendant's attempt to eliminate its sole competitor
14 . '" .
) through unfair methods of competition has adversely affected
15 competition by raising Plaintiffs' costs of doing business and
16 placing plaintiffs at a competitive disadvantage for providing
17 continued and improved services to residences in Bozeman.
18 39. That said acts by the Defendants are in violation of 55
19 30-14-101 et seq., MCA 1987, and 30-14-201. et seq., MCA 1987.
20 40. That plaintiffs are entitled to damages as a result of
.~~ --'- ~.
21 the acts of the City in accordance with S 30-14-133 and 5
22 30-14-222, MeA, 1987.
23 COUNT 4
24 VIOLATIONS OF STATE LAW
25 41. Plaintiffs reallege all of the allegations set out in
2G the introduction and alternate counts of this Complaint.
(. ) 27 42. plaintiffs and Defendant are competitors engaged in the
28 business of providing solid waste collection.services to
~ ; 14
. . ~ &- . . ... ..,_..u....""".,.. . m""~ .. .__ ,_ . ... _ . _H .,,.. __ ,_._ _.
.'.,.. ...
. ~ ") )
, .
. 1 residences in Bozeman, Montana.
(:"" 2 4 3. Section 7-13-4107, MCA, 1987, provides for protection
" )
3 of private waste disposal services and requires compensation
4 and/or 5 years notice if a municipality attempts to provide
() exclusive garbage and solid waste disposal service in place of a
G private hauler.
7 44. Secti~n 75-10-102(c), MCA, 1987, provides that private
8 industry is to be utilized to the maximum extent possible to
{) provide solid waste disposal services.
10 45. plaintiffs currently provide waste collection services :
11 to more than 500 residences in Bozeman.
12 46. plaintiffs are entitled to provide residential service
13 !~ Bozeman until Defendant complies with S 7-13-4107.
\, . Defendant is engaged in a scheme to deprive plaintiffs
14 '.\': .. 7 .
) 15 of their right to provide residential service in Bozeman in
16 violation of S 7-13-4107.
17 48. In furtherance of its scheme, Defendant has:
18 1) Circulated a petition among Plaintiffs' customers
19 seeking to deprive plaintiffs of their right to service
20 their customers:.
21 2) Manipulated-Plal~fs"-landfill costs thereby placing
22 plaintiffs at a competitive disadvantage in providing
2.1 service to residential customers.
24 49. That Defendant should be enjoined from so acting until
25 they have properly complied with State law as above set out.
0
26 COUNT 5
27 VIOLATIONS OF ZONING STATUTES
i
,
28 SO. plaintiffs reallege all of the allegations set out in
15
I
. . ") )
. .
. 1 the introduction and alternate counts of this Complaint.
t- 2 51. Section 76-2-302, MCA 1987, requires that all
)
3 regulations for zoning districts must be uniform for each class
4 or kind of building throughout each district. The erratic and
5 arbitrary acts of the Defendants in applying their review to
G plaintiffs' property and denying plaintiff's building permit
7 application are in violation of this uniformity requirement.
8 52. section 16-2-303, MCA 1987, requires that zoning
9 regulations and restrictions may n~t apply to property until
10 they are validly enacted after a public hearing. The acts of
11 Defendants constituted improper application of the zoning
12 process to the property of the plaintiffs, and thus constitutes
13 ~ceach of said provision of Montana law and was further done I
14 wlihout notice to the plaintiffs and without a proper public
) 15 hearing.
16 53. That the acts of the Defendants in this regard have
17 caused damage to the plaintiffs and that they are entitled to
18 damages allowed by State law and as set out below.
19 COUNT 6
20 BREACH OF THE ZONING CODE
- - -- ,--- -- -_.~_....--....-.-..- ._~
21 54. plaintiffs reallege all of the allegations set out in
22 the introduction and alternate counts of this Complaint.
23 55. Defendants improperly applied the above-referenced
24 zoning ordiance to plaintiffs in denying their building permit
25 application on or about June 2, 1986.
.
26 56. Defendants' actions were in violation of the then
) 27 existing Bozeman zoning Code.
28 57. By said acts the Defendants have damaged the plaintiffs
16
i
I j
. . . ") ')
. .
.
.
1 and plaintiffs are entitled to damages as allowed by State law
( ) 2
and as set Qut below.
3 COUNT 7
" SPOT ZONING
5 58. plaintiffs reallege all of the allegations set out in
G the introduction and alternate counts of this Complaint.
7 59. Tho ocfendants' actions constitute illegal and
8 u~constitutional spot zoning.
9 60. By said acts the Defendants have damaged the plaintiffs
10 and plaintiffs are entitled to damages as allowed by State law
11 and as set out below.
12 COUNT 8
13 .,. CONSTITUTIONAL VIOLATIONS
14 .... .,. plaintiffs reallege all of the allegations set out in
( .. 61.
) .
15 the introduction and alternate counts of this Complaint.
10 62. Defendants' denial of a building permit to the
17 plaintiffs was discriminatory and violated plaintiffs' right to
18 equal protection under the Fourteenth Amendment to the U.S.
19 Constitution and Article II, 5 4 of the Montana Constitution and
20 further violated plaintiffs' right to due procesa under the
_. - -- ... - -_.~-
21 Fifth and Fourteenth Amendments to the U.S. Constitution and
22 Article II, 55 3 and 17 of the Montana Constitution.
23 63. That plaintiffs are entitled to the damages resulting
24 therefrom as allowed by law and as set out below.
25 .. COUNT 9
26 ABUSE OF POtlER
\ ) 27 64. plaintiffs reallege all of the allegations set out in
28 the introduction and alternate counts of thi~ Complaint.
17
. .. ) )
,
.. 1 65. That by its acts the Defendants have committed the tort
( )
2 of abuse of power.
3 66. That the Plaintiffs are entitled to all damages
4 resulting therefrom as allowed by State law.
}Jilr"'" v.
5 C~U_N~_!'Q ~tP"" ~
6 CONTRACTUAL INTERFERENC.f !,~,...{!q(
7 67. plaintiffs reallege all of the allegations set out in
8 t~e introduction .and alternate counts of this Complaint.
9 68. That by its actions the oefendants have interferred
10 with the contractual rights of the plaintiffs all to the
1] detriment of the plaintiffs.
12 69. That the plaintiffs are entitled to damages, all as
13 allowed by State law and as set out below.
() 14 ...\0 .,. COUNT 11
15 NEGLIGENCE <) tf'f ~
16 70. plaintiffs reallege all of the allegations set out in
17 the introduction and alternate counts of this Complaint.
18 71. That by its acts on or about April 14, 1986, the
19 oefendants negligently misrepresented to the plaintiffs the
20 availability of a building per~~~. for thei! t~ansfer station ~n
21 an HI zone, negligently misrepresented plaintiffs' right to
Xl construct said transfer station in an HI Zone, and negligently
23 led plaintiffs to believe that said construction would be
24 allowed.
25 72. Defendants further acted negligently with respect to
26 their interpretation and application of the various zoning
() 27 ordinances and municipal laws as set out above and negligently
28 led the plaintiffs to believe that they would be entitled to
18
, .,..:.y........._.."._.. ~.r"_.~.~.__"..' :,.,'_ . ......,.._.........~"." ~,~,.:. ,..........,...- -,- - -
,.,.. ~_'., . .'L ,..... &_ , .. .'.". ..'. . '-. -. - - ~,~, . ... -
/
. . ') )
. .
1 ,~on.tin.':'4t. .operating their J)':I~ine,ss.ln accordance with past
)
2 practices.
3 73. That plaintiffs have been damaged by the acts of the
4 Defendants and that the legal and proximate cause of said
5 damages are the acts of the Defendants. That plaintiffs are
G entitled to damages for said negligence as allowed by State law
7 and as set out below.
8 COUNT 12
9 D~TRIHENTAL RELIANC~ AND ESTOPPEL
10 74. plaintiffs reallege all of the allegations set out in
1] the introduction and alternate counts of this Complaint.
12 75. That from April 14, 1986, until it determined in June
13 6f 1986 that plaintiff's operation was not a proper use in an HI
\0 ..
14 , the Defendants' actions and ommissi?ns amounted t? a
) zone,
1ft representation to the plaintiffs that their transfer station
Hi permitted in an HI zone.
17 76. plaintiffs acted in reliance on the position taken by
18 the Defendants that their transfer station was permitted in an
19 HI zone.
20 77. The oefendants had to expect that its conduct would be
- -- ~----- .
21 acted upon by the plaintiffs and the circumstances were such as
22 t? cender it natural and probable that the plaintiffs would act
23 on the City'S representations based on the City'S position that
24 a transfer station was a use permitted in an HI district.
25 78. In reliance.on the Defendants' position and statements,
26 the plaintiffs changed their position f?r the worse as alleged
\, ) 27 abov~ by makiny preparation to b~gin construction of the
28 transfer station and ordering equipment ther~fore.
19
-~
, .--- ' . ...."r".. ~ .'11"'" ~',~ '_"~_" ~.'. _ '~. _n' .
"d__. - - ~ , . ~ .~.~ . .'-~ . .
i I
. . ') )
1 79. That by their detrimental reliance ~n the statements
) 2 and actions of the Defendants, the plaintiffs have been damaged
3 and arc entitled to damagcs as aI10wcd by State law and as set
4 out uclt)w.
5 80. That the Defendants and their various boards and
G agencies are est~pped fr~m reclassifying an enclosed transfer
7 station as a use not permitted in an MI district.
S COUNT 13
9 42 U.S.C. S 1983
10 81. plaintiffs reallege all of the allegations set out in
11 the introducti~n and alternate counts of this Complaint.
12 82. That plaintiffs are entitled t~ damages and declaratory
13 and injunctive relief under 42 U.S.C. S 1983 over which the
14 ' " - . . . .
ttate court has concurrent Jurisdiction: and under Montana law
If. (')1' Vj.)LII. jt)ll t)f lI,,~ir ri(JhU. untler the f'r,)urLecnth Amendment and
1G fifth AmcnLlmcnt of the united $tates Constitution: and for
17 violati~n of their rights under the Montana Constitution, the
18 Montana Municipal Zoning Statute, and S 76-2-301, et seq., MCA,
19 1987. The acts of Defendants hereinafter complained of were
20 undertak~n under color of State law, and in violation of the
-,
21 f~r~y~in<J laws, b~th State and federal.
22 83. That plaintiffs are entitled t~ damages and injunctive
23 relief as set out below.
24 WHEREFORE, plaintiffs pray judgment as follows:
2f. 1. For actual damages in the sum of $677,000.00 or such
26 other actual amount as may be proven at trial.
-- ..- ~ ~-'~
( ) 27 2. F~pu-n'itive damages as--allowecfby State law.
- . ,-- -. ._- -_..- ,~ .._--' - ,-,-'--.._-,------~
28 3.--' For treble damages- as allowed by 55 30-14-133(1) and
20
/-
~ '.'" . ... , .". m '_'."~'_ .'-...-.- ~ . ." -., ,.," ." ___.",." .,a_.. .._~. .. -,
I ) I
. . ')
. .
1 30-14-222(2), MeA, 1987.
( ) 2 for injunctive relief as allowed by State law t? prevent
4.
3 further acts of the City in regard to the f?regoing allegations.
4 5. For writ of mandamus or other appr?priate writ as
5 allowed by State law requiring the City t? comply with its own
6 municipal ordinances and State and Federal law.
7 6. For such compensation as is allowed by law for the
8 ta~ing of the plaintiffs' rights and property, including all
9 costs associated with processing their various applications,
10 defending their property, moviny their transfer site to a new
11 l?cation, the costs of operating without the new transfer
12 station for that time period beginning with denial of their
13 building permit and such other costs as may be associated with
, .. -
) 14 the taking of plaintiffs' rights and property by the Defendants.
15 7. For such relief as may be allowed under 42 U.S.C. S
16 1983.
17 8. For all costs incurred in the prosecution of this action
18 including reas?nable attorney's fees as all?wed by law both
19 State and Federal.
20 9. For such other and further relief as the Court shall
-.. -~---.,........,.- --- . ". - .- .- -.
--~~- -
21 deem just and pr~per.
22 ----------
23 ----------
24 ----------
25 ---------- .
26 ----------
( ) 27 ----------
28 ----------
21
~ , .
)
. .,
1 DATED thi~ ~ day of August, 1989.
(
. ) 2
THREE RIVERS DISPOSAL COMPANY
3 and WAST~ MANAGEMENT PARTNERS
OF BOZ EM AN , LTD.
4 plaintiffs/Claimants
5 is!
6 By
Mit:haell C. Co il
7 Attorney at Law
Post Office Box 6059
8 125 West Mendenhall
Bozeman, Montana 59715
9 (406) 586-8949
ATTORNEY FOR PLAINTIFFS
10
11
By
12 R. Wal er Connell
Attorn y at Law
13 - 125 West Mendenhall
". Bozeman, Montana 59715
14 . (406) 587-7496
) ATTORNEY FOR PLAINTIFFS
1[,
IG
17
18
In
20
21
22
2:.
24
2[, .
26
( j 27
28
22
.-. ",...
: ~
') .
, ' . \
. ,
1 DI::MAND fOR JURY TRIAL
( ) 2 COME NOH the plaintiffs and hereby demand trial by jury on
3 all issues.
4 DATED this \ ,"'-) day of August, 1989.
5 1-) )
6 By
7 Mi c/1ae 1 IC. CO il
Attorney at Law
Post Office Box 6059
8 125 West Mendenhall
Bozeman, Montana 59715
9
,
I 10
I IJ
12
13 -
" .
14 '.
\
1[,
lG
17
18
10
20
21
22
23
24
25 .
2G
( J 27
28
23
..... _ . ' . ~ ....I .' ...I+Ii ,,_ ... ,... .. ..,. -. -". ~, .-" ,-,"",~,,_.- - - -...,..- . - .. - ~ ',"'". '. . . - . ~." u.. _ "
"
" I
. .
~,
1 MICHAEL C. COIL
Post Office Box 6059
2 125 West Mendenhall
Oozeman, Montana 59771-6059
3 Telephone: (406) 586-8949 RECEIVED
4 R. WALTER CONNELL Dt:t; ,. 1989
125 West Mendenhall
5 Bozeman, Montana 59715
Telephone: (406) 587-7496
6
ATTORNEYS FOR PLAINTIFFS
7
MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY
8
* * * . * * * * * *
9
THREE RIVERS DISPOSAL and ) No. DV 89-244
10 WASTE MANAGEMENT PARTNERS OF )
BOZEMAN LIMITED PARTNERSHIP, )
11 an Illinois limited partnership, )
)
12 Plaintiffs, )
)
13 vs. )
I )
14 CITY OF BOZEMAN and JOHN DOES I )
THROUGH X, )
15 )
Defendants. )
16 )
17 * * * * * * * * * *
18 FIRST AMENDED COMPLAINT
19 * * * * * * * * * *
20 COME NOW the Plaintiffs and complain and allege as follows:
21 INTRODUCTION
22 FACTS COMMON TO ALL COUNTS
23 1. Plaintiff Three Rivers Disposal is a partnership
24 authorized to do business in accordance with the laws of the
~ \ II (y 25 State of Montana and doing business in Bozeman, Gallatin County,
: 26 Montana.
27 2. Plaintiff Waste Management Partners o~ Bozeman Limited
1,,1.( 28 Partnership, an Illinois limited partnership (W M Partners), is
Ir
;4:1"I'XHIIIT t
j;1" :",.., , .
ji: :~;';;~i ~..!I:4' " ", ,'~~.
, . , ' /.. '~,." I 1 II- /
. ''''"...''._ "',,q.',. .:~_,.A.. ...;!..._,_.. '. . . _ "',..,.;':.,'....'q;...W,. .,....""',....-:',....,...'..,.."..,..\II,~'-I..i,_'.'.. ,. . .._...I~- \.........,~~:_,~~,.r_ _ J,_.......,~.~!.i<. ..'-,'., '..~....."-~,-, -~ .,'. .,".~..~._.",..'.... ..,' ~ . "
,.., '.
.. (
\
( 1 a limited partnership organized and authorized to do business in
2 accordance with the laws of the State of Montana and doing
3 business in Bozeman, Gallatin County, Montana.
\>"4 3. Defendant, City of Bozeman, is a municipal corporation
5 of the State of Montana.
6 4. That the Plaintiffs believe that the individual John
7 Does I through X are residents of the State of Montana or were
8 doing business in the State of Montana or had other minimum
9 contacts with the State of Montana at the time of the occurrence
10 set out below and, therefore, Plaintiffs allege that said
11 parties were residents of the State of Montana at all times
12 relevant hereto and are therefore subject to the jurisdiction of
13 the State of Montana. That the John Does I through X are
( (y
;\ll 14 parties which may have been involved in the occurrences set out
15 herein, may have been agents of, employers of, employees of,
16 franchisors or franchisees of, or contractually obligated to the
17 named Defendants or had some other legally binding connection to
18 the named Defendants and, therefore, said Defendants John Does I
19 through X may have committed one or.more of the acts set out
20 herein or may be responsible through the laws of the State of
21 Montana for the acts of the named Defendants as set out herein.
22 Plaintiffs believe and therefore allege that the John Doe
23 Defendants I through X may have committed one or more of the
24 acts set out below and that they would therefore be liable for
25 the same. Plaintiffs. will amend these pleadings as the case
( 26 progresses to specify the various acts of the Defendants John
27 Does I through X including their identity.
~28 s. Prior to April 7, 1986, Three Rivers Disposal, throu9h
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1 its agent, Lowell w. Springer, architect, requested a building
2 permit from the City of Bozeman for a refuse transfer station
3 facility to be located at 515 East Aspen in Bozeman, Montana.
4 Said property was zoned M-l, Commercial-Light Manufacturing.
5 6. Because a transfer station facility was neither listed
6 nor prohibited in any zoning district by the City of Bozeman
'\)7 Zoning Code, Plaintiffs were denied a building permit and
.'
8 advised by City officials that an interpretation of the Bozeman
9 zoning Code would be required.
10 7. In order to acquire the necessary building permit for
11 the construction of the transfer facility, Mr. Lowell Springer
~ 12 requested an interpretation of the zoning code pursuant to
13 Section 18.06.050 on April 7, 1986.
14 8. Defendant City of Bozeman considered Plaintiffs'
15 request on April 14, 1986, and the Bozeman City Commission,
16 after receiving input from the City's planning staff, the City
17 Attorney, Lowell Springer, Bob Fagliano (General Manager of
~ 18 Three Rivers Disposal), and others, pursuant to Section
18.06.050 of the zoning code, classified an enclosed transfer
19
20 station as a conditional use authorized within an M-l zoning
21 district. The City Commission made this decision even though
22 the City Manager and planning staff recommended that transfer
23 stations should be in M-2 zoning districts.
24 9. In reliance upon the City of Bozeman's approval for an
25 enclosed transfer sta~ion in the M-l zoning district and because
( 26 of the lengthy lead time required to obtain transfer station
'P 27 equipment, Three Rivers Disposal began ordering equipment on
~
28 April 21, 1986, to be installed in the transfer station to be
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1 constructed on Three Rivers Disposal's property located 515 East
2 Aspen in Bozeman, Montana.
3 10. Plaintiffs again requested a building permit from the
~4 De f endan t, which was continually delayed as hereinafter set
5 forth until the Defendant took action to bar construction of a
6 transfer station in an M-l zone.
7 11. Subsequent to the City Commission's approval of the
.
8 enclosed transfer station as a conditional use in M-l zoning
9 districts and the approval of Three River's plan to build an
10 enclosed transfer station on its M-l site and prior to May 27,
11 1986, the Bozeman City Attorney, the City Manager, and the
~ 12 City/County planning staff, without justification, attempted to
( 13 reverse and subvert the lawful decision of the Bozeman City
\
14 Commission to classify an enclosed transfer station as a
15 conditional use in an H-l zoning district.
16 12. Individuals referred to in paragraph 11 further decided
17 that a zoning code amendment would have to be initiated in order
'^ 18 to allow enclosed transfer stations to be built in M-l zoning
19 districts.
20 13. As a result of the decision referreo to in paragraph
21 12, and with the knowledge of the Bozeman City Commission, the
~22 City/County planning staff prepared an application for a zone
code amendment to Section l8.52.140(n) to allow garbage transfer
23
24 stations as a conditional use in an M-l zoning district. The
25 staff action was the result of Plaintiffs' original application
( 1) and was intended only to regulate activities of Plaintiffs.
" /27 14. At a meeting of the Bozeman City Zoni~g Commission on
~~
Hay 27, 1986, the proposed amendment was discussed, and the
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1 Zoning Commission passed a motion denying the application for
2 said zone change and further requested that the planning staff
3 process an application to allow enclosed transfer stations as a
4 conditional use in H-2 zoning districts. The request was based
5 on the recomnEndation of the City/County planning staff that
6 transfer stations should only be authorized as a conditional use
7 in M-2 zoning districts.
8 15. On June 2, 1986, the Bozeman City Commission met and
9 discussed the proposed amendment to the zoning code which would
10 have authorized transfer stations as a conditional use in an M-1
11 zoning district. ~ithout j~ficatio~the City Commission
12 reversed its original decision and disallowed the proposed
13 amendment and directed the planning staff to prepare an
14 amendment to the zoning ~ode to only allow garbage transfer
15 stations as a conditional use in an M-2 zoning distric .
1 Hacti"otT--was-the-'-prodl.ict-.of sta ff acti vi ty di rected solely at the
activity of Plaintiffs and was intended solely to subvert the
lawful objectives and rights of Plaintiffs.
19 16. During the period of time subsequent to the Bozeman
20 City Commission's actions on April 14, 1986, and the
K) 21 Commission's actions .on June 2, 1986, Three Rivers Disposal had
22 no knowledge that the City administration and its planning staff
23 actually intended to prevent Three Rivers Disposal from
24 constructing a transfer station on its property located at 515
25 East Aspen which was ioned M-l.
\ 26 17. Three Rivers Disposal was not notified that the Bozeman
i ,') 27 City Commission would be discussing the aforementioned amendment
28 to the zoning code at its June 2, 1986, meeting, even though a
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( neighboring property owner was notified by the City through
1
2 Commissioner Mary Vant Hult. As a result, no representatives of
3 Three Rivers Disposal were pr,esent at said Commission meeting.
4 Three Rivers Disposal was never advised that the City intended
5 to actually reverse its decision to allow Three Rivers Disposal
6 to build an enclosed transfer facility on its property.
7 18. After the June 2, 1986, meeting of the City Commission,
\) 8 Three Rivers Disposal was denied a building permit for its site
9 located at 515 East Aspen.
10 19. After June 2, 1986, Three Rivers Disposal began
11 receiving complaints from the City of Bozeman about the
12 operation of its business at 515 East Aspen. As a result of the
\l-J 13 foregoing complaints and restrictions, Three Rivers Disposal was
\'1 14 unable to continue its operations at 515 East Aspen. These
\v
v 15 operations included the outside transfer of garbage and refuse
16 which Three Rivers Disposal had intended to enclose within a
17 modern transfer station facility at the time it requested the
18 building permit.
19 20. The outside transfer of garbage and refuse had been
~, 20 done by Three Rivers Disposal and its predecessor at 515 East
\~ 21 Aspen Street for approximately five or six years prior to the
..t
22 time it applied for a building permit.
l") 23 21. This use of the property was a -grandfathered-, lega 1
24 nonconforming use of the property.
25 22. Defendants' actions forced Three Rivers Disposal to
\ 26 acquire new property in an M-2 zone in very close proximity to
I C\) 27 the original site, and commence anew the lengt~y process of
28 securing the necessary land use entitlements and permits.
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1 23. At the time the City of Bozeman decided that it would
2 not allow transfer station facilities in M-l zoning districts
3 and relegated them to M-2 zoning districts, the City knew or
'\) should have known that there was no available land zoned M-2
4
5 outside of the flood plains within the City of Bozeman or its
6 jurisdictional boundaries.
7 24. Defendants' actions required Three Rivers Disposal to
8 expend the sum of $69,000.00 for the purchase of the new site
9 and $287,000.00 for initial preparation, engineering and site
~ 10 development work on the new site which would not have been
11 necessary at 515 East Aspen. Such site development work
12 includes street paving and the installation of sewer and water
13 lines required by the Defendant.
14 25. The inability to build a transfer station facility at
15 515 East Aspen cost Three Rivers Disposal a time delay of almost
'\} 16 three years in the construction of a transfer station facility,
17 and Three Rivers Disposal has correspondingly lost the following
18 savings in the operation of its business:
19 Fuel Savings $ 54,000.00
20 Vehicle Depreciation $ 35,000.00
21 Savings in labor costs $ 10,000.00
22 Savings in Disposal Costs
at the Livingston Incinerator
23 versus Bozeman and Logan
Landfills $110,000.00
24
26. The City's actions after June 2, 1986, forced Three
25 .
I Rivers Disposal to move to a new site in Four Corners, Montana.
\ '926
As a result of this move, Three IHvers Disposal was sued by
: 27
Montana Power Company for breach of contract on a contract for
28
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1 deed for the property at 515 East Aspen. Three Rivers Disposal
2 expended approximately $35,000.00 in the settlement of said
3 su i to
4 27. The move from 515 East Aspen caused Three Rivers
5 Disposal to have increased operation expenditures because of the
6 extra distance that its trucks had to travel to Four Corners.
\) 7 Inc~eased operational expenditures attributable to the move from
8 515 East Aspen to Four Corners arc as follows:
9 Additional Fuel Costs $36,000.00
10 Additional Employee Overtime $ 6,000.00
11 20. The administration of the City of Bozeman had plans to
12 build a solid waste transfer facility of its own at the time
I )) 13 Three Rivers Disposal asked for a zone code interpretation and
14 the necessary permits to construct its transfer station at 515
, 15 East Aspen Street.
16 29. The Defendant, City of Bozeman, prohibited Three Rivers
, 17 Disposal from building an enclosed transfer station facility at
~ 18 the 515 East Aspen Street site for undisclosed reasons because
19 the Defendant had an ulterior motive for its actions and was
20 motivated by irrational prejudice towards the Plaintiffs.
21 30. The actions of the Defendants in preventing Three
22 Rivers Disposal from building a transfer facility at the East
23 Aspen Street site were done in an attempt to harm a competitor
r\) 24 by preventing or delaying the construction of a facility which
25 could compete with th~ city's proposed transfer facility. Said
\ 26 actions have also harmed the public by denying the public
~ 27 improved and more economical services.
- :-
28 31- The city of Bozeman intends to take away 529 customers
)7
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1 from the Plaintiffs, and City officials have actively attempted
2 to disrupt the contractual relationships between the Plaintiffs
3 and their customers in Bozeman.
4 32. The Plaintiffs have reason to believe and therefore
5 allege that they have suffered and will suffer damage as a
~6 result of the City's attempt to take Plaintiffs' customers away
7 from, them.
8 33. The City of Bozeman encouraged customers of the
9 Plaintiffs to petition the City to provide service to them and
10 then failed to notify Plaintiffs of the time and place when the
\)11 City would actually review the petition and act upon it thereby
12 preventing the Plaintiffs from reviewing the validity of the
13 peition and denying Plaintiffs their constitutionally protected
14 right to due process of law.
15 34. The City of Bozeman has failed to disclose to the
16 petitioners referred to in paragraph 33 and other customers of
17 the Plaintiffs which it is currently soliciting business from
'918 that once they agree to allow the City to provide solid waste
19 disposal services to them, the City will not allow them to
20 switch back to a private carrier without the customers being
21 continually assessed for City services.
22 35. The City of Bozeman has failed to disclose to customers
23 of the Plaintiffs which it is soliciting that there is a
24 substantial likelihood that City rates will dramatically
~25 ..
increase in the near future because of the costs necessary for
26 the City to expend in order to bring its landfill into
t 27 compl iance wi th state and federal envi ronmen tal. laws and because
28 of revenue shortages in the City's solid waste disposal
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1
2 36. The plaintiffs have reason to believe and therefore
3 allege that the customers which the City of Bozeman may
4 successfully lure away from Plaintiffs through its unfair
\)5 methods of competition may ultimately suffer harm as the City
6 increases its rates for services above the rates of private
i 7 carriers and prevents the customers from switching to a private
,
I 8 carrier by continuing to assess them for City services
9 regardless of who provides the services.
10 37. The administration of the City of Bozeman knew or
\)11 should have known that its present landfill has serious
12 environmental problems.
13 38. The City administration also knew or should have known
~14 that it has not been meeting state and federal landfill
15 operation requirements such as, but not limited to, state
16 mandated requirements to supply ground water sampling data.
17 39. The City of Bozeman has not included in its garbage
918 hauling rate structure the costs necessary to clean up the
19 environmental problems and the. costs necessary. to meet state and
20 federal requirements at its landfill.
21 40. By not including proper landfill costs in the rates
))22 which the City of Bozeman charges for solid waste disposal, the
City has sold solid waste disposal services at less than their
23
24 true cost.
25 41. The Plaintiffs have reason to believe and therefore
( '926 allege that the City of Bozeman has used funds from other parts
\.
27 of its budget to cover revenue shortages in the City's solid
,
28 waste disposal operations.
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( 1 42. The revenue shortages in the City of Bozeman's solid
\)2 waste disposal operations have not been taken into account in
3 the rates which the City charges its customers.
4 43. By not including revenue shortages into its rates, the
~5 City has sold solid waste disposal services at less than their
6 true cost.
7 44. The City of Bozeman is directly competing against the
,
18 Plaintiffs for customers within the Bozeman area, and the
9 competition is solely based on the cost of the solid waste
10 disposal services.
11 45. That on or about May 26, 1989, agents and employees of
12 the Plaintiffs were on property belonging to Paul Boylan, with
13 the permission of Paul Boylan, taking water samples from test
14 wells, which Plaintiffs believe and therefore allege belong to
15 Paul Boylan. That while the agents and employees were taking
'9 16 samples, City of Bozeman police officers, acting under color of
17 law and at the direction of the City of Bozeman administration,
18 unlawfully and without cause restrained the agents and employees
19 and prevented them from taking further samples. That the
20 actions of the City of Bo~eman police officers were done in bad
21 faith and violated the constitutionally protected civil rights
22 of the Plaintiffs.
23 46. The Plaintiffs believe and therefore allege that the
24 City of Bozeman has overcharged them for loads of solid waste ,
'925 .
which they have deposited at the City's landfill prior to
26 December 31, 1987, when the Plaintiffs ceased using the City's
27 landf ill.
~ 47. The Plaintiffs believe and therefore allege that other
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1 members of the public may also have been ovcrcharged at the
2 City' s landfill and have becn damaged thereby.
3 48. That plaintiffs hav~ been required to retain the
'\}4 services of Michael C. Coil, Post Office Box 6059, Bozeman,
5 Montana, and R. Walter Connell, 125 West Mendenhall, Bozeman,
6 Montana, to prosecute this matter on their behalf.
'\)7 49. Plaintiffs have complied with the provisions of Section
\
2-9-301 et seq., MCA 1989.
8
9 COUNT I
10 INVERSE CONDEMNATION
11 50. Plaintiffs reallege all of the allegations set out in
12 the introduction and alternate counts of this Complaint.
13 51. That since April 14, 1986, Plaintiffs had an actual
<\) 14 vested right to devclop a transfer station at 515 East Aspen in
15 that the same was located in an M-1 zone and that said
16 development was determined by the Defendants to be a proper use
17 of property located in an M-l zone.
18 52. That thereafter the Defendants did without notice and
19 in violation of federal, state and municipaL"_law temPOf~ri.1Y and
20 permanently deprive Three Rivers Disposal of all economically
t\) 21 viable use of its property at 515 East Aspen without first
22 paying just compensation in violation of the Fifth and
23 Fourteenth Amendments to the U.S. Constitution and Article II,
24 Sections 3 and 17 of the Montana Constitution.
25 53. Plaintiffs are entitled to damages for just
'\)26 compensation for the taking of their property and rights,
27 including compensatory damages for the costs of relocation, all
28 a8 aet out below.
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(,-, COUNT 2
1
2 VIOLATION OF THE OBLIGATION OF GOOD FAITH
3 AND FAIR DEALING
4 54. Plaintiffs reallege all of the allegations set out in
5 the introduction and alternate counts of this Complaint.
6 55. The City administration acted maliciously, oppressively
7 and in bad faith when it attempted to reverse and subvert the
8 lawful interpretation of the City zoning Ordinance bV the City
9 Commission which allowed enclosed transfer station facilities as
\)10 a conditional use within M-l zoning districts, when it delayed
11 issuance of construction permits, and when it further encouraged
12 and influenced the City Commission to reverse its initial
( 13 decision and to only allow transfer station facilities as a
14 conditional use in M-2 zoning districts, thus preventing Three
15 Rivers Disposal f['olD continuing to develop its property at 515
16 East Aspen.
17 56. The Defendants have committed numerous other acts of
18 bad faith, all as outlined above, including but not limited to
19 their attempts to unfairly compete with the Plaintiffs .in
20 violation of the stated lawful policies of the State of Montana,
'9 21 their attempts to drive the Plaintiffs out of business by
\ 22 restricting transfer stations to a zoning district in which
23 there was no available land for construction within the City of
24 Bozeman, their campaign of complaints and harassment of the
25 Plaintiffs at 515 East Aspen preventing the existing use of the
t 26 property, their attempt to price their solid waste collection
, 27 service below the fair price by failure to include the cost of
28 maintaining and upgrading the Bozeman Landfill, their attempted
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(" I restriction of Plaintiffs' ability to implement a recycling
2 operation at its proposed transfer station contrary to the
3 publ ic pol icy of the State of Montana as set forth in MCA
4 Section 75-10-l02(1)(a), their overcharging of Plaintiffs for
5 loads of solid waste deposited at the City's landfill, and the
6 use of its employees and police officers to attempt to prevent
7 the Plaintiffs from gathering test data relevant to this
8 lawsuit.
9 COUNT 3
10 UNFAIR COMPETITION AND TRADE PRACTICES
11 57. Plaintiffs reallege all of the allegations set out in
12 the introduction and alternate counts of this Complaint.
13 58. The City of Bozeman has abused its governmental powers
(
'\) 14 by engaging in unfair methods of competition with private
industry to provide residential waste collection services in
15
16 Bozeman in violation of Section 30-14-103 and Section 30-14-205,
17 MCA, 1987.
18 59. In furtherance of its unfair methods of competition,
l\) 19 The City of Bozeman has engaged in anti-competitive and
20 predatory conduct, including but not limited to:
21 A. The prevention a~d/or delay of Plaintiffs'
22 construction of an enclosed transfer station by
23 the manipulation of zoning regulations.
24 B. The charging of predatory, below-cost prices for
25 solid waste collection services.
( 26 C. The overcharging of Plaintiffs for loads of
27 solid waste deposited by Plaintiffs at the
28 City's landf ill.
, .--- . ~.~ ~ .' . ,- ---,Y"
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1 D. Employees, officers or agents of the City have
2 encouraged the accumulation of signatures on a
3 petition to take customers away from Plaintiffs in
4 contravention of Section 7-13-4107, MCA 1989,
5 which requires 5 years notice or just compensation be
6 given to private waste disposal services.
7 60. The City of Bozeman's attempt to eliminate its sole
,
8 competitor through unfair methods of competition has adversely
9 affected competition by raising Plaintiffs' costs of doing
):\0
business and placing plaintiffs at a competitive disadvantage
11 for providing continued, improved and more economical services
12 to residences in Bozeman.
I 13 61. That said acts by the Defendants are in violation of
~14
Sections 30-14-101, et seq., MCA 1989, and 30-14-201, et seq.,
15 MeA 1989.
16 62. That Plaintiffs are entitled to damages as a result of
~7 the acts of the City in accordance with Section 30-14-133 and
18 Section 30-14-222, MCA 1989.
19 COUNT 4
20 VIOLATIONS OF STATE LAW
21 63. Plaintiffs reallege all of the allegations set out in
if 22 the introduction and alternate counts of this Complaint.
23 64. Plaintiffs and the City of Bozeman are competitors
24 engaged in the business of providing solid waste collection
25 .
services to residences in Bozeman, Montana.
\, 26 65. Section 7-13-4107, MCA 1989, provides for protection of
27 private waste disposal services and requires C9mpensation and/or
28 5 years notice if a Municipality attempts to provide exclusive
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( garbage and solid waste disposal service in place of a private
1
2 hauler.
3 66. Section 75-10-102(c), MeA 1989, provides that private
4 industry is to be utilized to the maximum extent possible to
5 provide solid waste dis(~sal services.
6 67. Plaintiffs currently provide waste collection services
7 to more than 500 residences in Bozeman.
8 68. Plaintiffs are entitled to provide residential service
9 in Bozeman until the City of Bozeman complies with Section
10 7-13-4107.
11 69. The City of Bozeman is engaged in a scheme to deprive
12 Plaintiffs of their right to provide residential service in
( 13 Bozeman in violation of Section 7-13-4107.
14 70. In furtherance of its scheme, the City of Bozeman has:
15 A. Caused a petition to be circulated among Plaintiffs'
16 ~ customers seeking to deprive Plaintiffs of their right
17 to service their customers;
18 B. Manipulated Plaintiffs' landf ill costs thereby placing
19 t\) Plaintiffs at a --competitive disadvantage in providing
service to residential customers.
20
21 71. Section 7-2-4736, MCA 1989, has provisions protecting
22 the providers of existing garbage or solid waste service after
23 annexation of areas receiving those services.
24 72. The City of Bozeman has engaged in a scheme to deprive
\)25 Plaintiffs of their rlght to be protected from the City
26 providing service to Plaintiffs' customers in violation of
-
27 Section 7-2-4736.
28 73. In furtherance of its scheme, the City of Bozeman has:
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( 1 A. Caused a petition to be circulated among Plaintiffs'
2 \) customers seeking to deprive Plaintiffs of their right
3 to service their customers.
.- B. Notified the Plaintiffs of the initial City Commission
5 "\! meeting at which the petition was to be discussed.
6 C. Postponed discussing the petition to an undetermined
7 1'0 later date.
8 D. Deliberately failed to notify the Plaintiffs of the new
9 time that the City established for discussing and
\!
10 , determining the validity of the petition so that
11 representatives of the Plaintiffs would not be present.
12 E. Took action on the petition without verifying the
13 validity of the petition even though a real question
14 existed as to whether or not the petitioners understood
\')
15 / the consequences of the petition and whether or not all
16 of the petitioners actually desired to have the City
17 provide them solid waste disposal services.
18 F. Deliberately failed to notify Plaintiffs of their
19 \} findings concerning the petition and the action that
20 the City planned on taking regarding the petition.
21 974. That the City of Bozeman should be enjoined from so
22 acting until they have properly complied with State law as above
23 set out.
24 COUNT 5
25 VIOtATIONS OF ZONING STATUTES
\. 26 75. Plaintiffs reallege all of the allegations set out in
27 the introduction and alternate counts of this Complaint.
28 76. Section 76-2-302, MCA 1989, requires that all
.-.. ....,........,'. ~..,-,._. .. ~ - .
. .. ( (
( 1 regulations for zoning districts must be uniform for each class
2 or kind of building throughout each district. The erratic and
3 arbitrary acts of the Defendants in applying their review to
4 Plaintiffs' property and denying Plaintiffs' building permit
5 applications are in violation of this uniformity requirement.
6 77. Section 76-2-303, MCA 1989, requires that zoning
7 regulations and restrictions may not apply to property until
8 they are validly enacted after a public hearing. The acts of
9 Defendants constituted improper application of the zoning
10 process to the property of the Plaintiffs, and thus constitutes
11 breach of said provision of Montana law and was further done
12 without notice to the Plaintiffs and without a proper public
( 13 hearing.
14 78. The actions of the City of Bozeman relating to the
15 zoning decisions which it made have damaged Plaintiffs, were
'\)16 arbitrary and capricious and had no rational relationship to the
17 health, safety and welfare of the residents of the City of
18 Bozeman.
19 COUNT 6
20 CIVIL RIGHTS
21 79. Plaintiffs reallege all of the allegations set out in
22 the introduction and alternate counts of this Complaint.
23 80. By engaging in legislative and other acts solely
24 focused upon thwarting Plaintiff Three Rivers Disposal's
'V 25 building of a transfer facility without a legitimate interest
( 26 and by committing other acts set forth above, Defendants have
27 violated the civil rights of Plaintiffs under color of law.
28 81. Defendants' denial of permits necessary for the
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F ~
( 1 construction of a transfer facility at 515 East Aspen Street was
2 discriminatory, arbitrary and capricious and violated Three
\)3 Rivers Oisposal's riyhts to due process and equal protection
4 under both the fifth and fourteenth Amendments to the U.S.
5 Constitution and under Article II, Sections 3, 4 and 17 of the
6 Montana Constitution.
7 82. Plaintiffs are entitled to damages and declaratory and
-\)8 injunctive relief under 42 U.S.C., Section 1983, over which the
9 state court has concurrent jurisdiction, and under Montana law.
10 COUNT 7
11 CONTRACTUAL INTERFERENCE
12 83. Plaintiffs reallege all of the allegations set out in
13 the introduction and alternate counts of this Complaint.
(
14 84. That by their actions the Defendants have interferred
915 with the contractual rights of the Plaintiffs, all to the
16 detriment of the Plaintiffs.
17 85. That the actions of the Defendants were intentional and
'\) 18 willful.
19 86. That the actions of the Defendants were calculated to
'920 cause damage and did cause damage to the Plaintiffs.
21 87. That the actions of the Defendants were done for the
'922 unlawful purpose of causing damage or loss to the Plaintiffs
23 without right or justifiable cause.
24 88. That actual damage and loss resulted to the Plaintiffs
,
'\)25 and that Plaintiffs are entitled to damages, all as allowed by
26 state law and as set out below.
27
28
:~"' I'" I ' . _ _ ..~ . ". ., ~ r . _. .... . '. ..... ,",' i."a; y.' :' ~ --.... ~ - ~ .-",... n. ~~'"" ...._' '" .~. " .~-,'.:...._... '" ,',."~:.,.' "- -'. ~,-,-,~~".,'..~:'-,,' ".,~,.~,.,~.:-
". .. ( ( .
( 1 COUNT 8
2 NEGLIGENCE
3 89. Plaintiffs reallege .all of the allegations set out in
4 the introduction and alternate counts of this Complaint.
5 90. That by their acts on Qr about April 14, 1986, the
6 Defendants negligently misrepresented to the Plaintiffs the
\)7 availability of a building permit for their transfer station in
8 an H-1 zone, negligently misrepresented Plaintiffs' right to
9 construct said transfer station in an M-l zone, and negligently
10 led Plaintiffs to believe that said construction would be
11 allowed.
12 9l. Defendants further acted negligently with respect to
13 their interpretation and application of the various zoning
(
'9 14 ordinances and municipal laws as set out above and negligently
15 led the Plaintiffs to believe that they would be entitled to
16 continue operating their business in accordance with past
17 practices.
18 92. That Plaintiffs have been damaged by the acts of the
~ 19 Defendants and that the legal and proximate cause of said
damages are the acts of the Defendants. That Plaintiffs are
20
21 entitled to damages for said "negligence as allowed by state law
22 and as set out below.
23 COUNT 9
24 DETRIMENTAL RELIANCE AND ESTOPPEL
25 93. Plaintiffs reallege all of the allegations set out in
\ 26 the introduction and alternate counts of this Complaint.
27 94. That from April 14, 1986, until they determined in June
)) 28 of 1986 that Plaintiffs' operation was not a proper use in an
" .' ~ ~,"..' - . .'.,~,...<.".....~-" ....'~J~,.....~"....."..~_.................,.~I,I~... '~"~... .~'.',".",:,"".........,"',~:,,'~_""''''''>>'->l..~...:...;..,:~" . ",.". _ __,u._;"',_...:_",~.:...~..~',"":'...~.:.:",~,'.;_ ~ .... . ",. ~"._~ .'~, _...j.,.:.,. ...
l__.._..
~ .. (.
( 1 M-l zone, the Defendants' actions and omissions amounted to a
2 representation to the Plaintiffs that their transfer station was
3 permitted in an M-l zone.
~4 95. Plaintiffs acted in reliance on the position taken by
the Defendants that their transfer station was permitted in an
5
6 M-l zone.
7 96. The Defendants had to expect that their conduct would
8 be acted upon by the Plaintiffs and the circumstances were such
~9 as to render it natural and probable that the Plaintiffs would
10 act on the City's representations based on the City's position
11 that a transfer station was a use permitted in an M-l district.
12 97. In reliance on the Defendants' position and statements,
( <y 13 the Plaintiffs changed their position for the worse as alleged
14 above by making preparation to begin construction of the
15 transfer station and ordering equipment therefore.
16 96. That by their detrimental reliance on the statements
6\) 17 and actions of the Defendants, the Plaintiffs have been damaged
and are entitled to damages as allowed by State law and as set
18
19 out below.
<)20 99. That the Defendants and their various boards and
agencies are estopped from reclassifying an enclosed transfer
21
22 station as a use not permitted in an M-l district.
23 WHEREFORE, Plaintiffs pray judgment as follows:
24 1. For actual damages in the sum of $726,000.00 or such
25 other actual amount as may be proven at trial.
( 26 2. For actual damages suffered by Plaintiffs because of the
I 27 City's overcharges at its landfill in an amount to be determined
28 at trial.
_....,~.,.~".. "~ "'~ -...... _.~,".,.."~,"~~"""""~~\." ,." ...:, .," .. '. _ ,~.". _",;:~~~""'':':''''''-'_., .,l_~~"..,.~" ~ ...-..."., ~ ~ ,. '.". . . - - ""' - +,_. ,~ . +.'~',. '_'II' ... '4 ~ ~
. ~. "." ..", .,
" .. ( (
( 1 3. \ For punitive damages as allowed by state law.
2 4. For treble damages as allowed by Sections 30-14-133(1)
3 and 30-14-222(2), MeA 1989.
4 5. for injunctive relicf as allowed by State law to prevent
5 further acts of the City in regard to the foregoing allegations.
6 6. For writ of mandamus or other appropriate writ as
.
7 allowed by state law requiring the City to comply with its own
8 municipal ordinances and state and federal law.
9 7. For such compensation as is allowed by law for the
10 taking of the plaintiffs' rights and property, including all
11 costs associated with processing their various applications,
12 defending their property, moving their transfer site to a new
13 location, the costs of operating without the new transfer
I
\
14 station for that time period beginning with denial of their
15 building permit and such other costs as may be associated with
16 the taking of Plaintiffs' rights and property by the Defendants.
17 8. For such relief as may be allowed under 42 U.s.c.,
18 Section 1983.
19 9. For all costs incurred in the prosecution of this
20 action, including reasonable attorney's fees as allowed by law,
21 both state and federal.
22 10. For such other and further relief as the Court shall
23 deem just and proper.
24 DATED this \sr day of December, 1989.
25 .
( 26
t 27
28
-
.- ..," .,.' -' .-~--~.. ._,....""'.......,. "....." .,..~_.............,-~~,.~.,.. '--.' - .-". .'.'~,.'" ,'..~....,.. .- - ..'. -' ~',..' ., ..... ',-,' ".......' ........ ..\, . ,j.-, ,. ..~:.. . '., ..,~....."""..-',--- ._..~'...:. ,~~ '.'~,~ .' .-"--'-'~ .... - ..._.__.,~ . .. - --... ..,_.,
'It- 'I ,,"- ( (
( 1 1'111<1':1:; RI VI::H~ 01 SPOSAL and
WASTE MANAGEMENT PARTNERS OF
2 BOZEMAN LIMITED ~ARTNERSHIP,
an Illinois limited partnership
3 .Plaintiffs
4 o C. ~.~
. ,
\
5 By
Michael C. Coil
6 Attorney at Law
Post Office Box 6059
7 125 West Mendenhall
Bozeman, Montana 59771-6059
8 (406) 586-8949
ATTORNEY FOR PLAINTIFFS
9
10 BQ9J~, ~ MJf)
11 R. Walter Connell
Attorney at Law
12 125 West Mendenhall
Bozeman, Montana 59715
13 (406) 587-7496
( ATTORNEY FOR PLAINTIFFS
14
15 CERTIFICATE OF SERVICE
16 The undersigned hereby certifies that on the (sf day of
17 December, 1989, a true and accurate copy of the foregoing FIRST
18 AMENDED COMPLAINT was duly served by mail upon the foll~wing
;.
19 counsel of record: "- ~
20 Mr. Bruce Becker
City Attorney
21 Post Office Box 640
Bozeman, Montana 59771-0640
22
Mr. Barry G. O'Connell
23 Moore, O'Connell, Refling
, Moon, P.C.
24 Attorneys at Law
Post Office Box 1288 ,
25 . Bozeman, Montana 59771-1288
26 OQ~~~-J
27
28