HomeMy WebLinkAbout05-18-15, Story Mill, Danean et al ComplaintBrian K. Gallik
Gallik Law Firm, P.C.
P.O. Box 70
Bozeman, MT 59771
(406)404-1728
brian@ galliklawfirm. com
John M. Kauffman
Kasting, Kauffman and Mersen, P.C.
716 South 20th Avenue, Suite 101
Bozeman, MT 59718
(406)586-4383
jkauffman@kkmlaw.net
Kellie G. Sironi
Attorney at Law
P.O. Box 81646
Billings, MT 59108
(406)860-9476
ksironi@sironilaw.com
Attorneys for the Plaintiffs
GALLf.TIN COUNTY CLERK
OF DISTRICT COURT
jENNIFER 13R6- ETON
515 AN 13 FM 2 19
FILED
uY
DErI;TY
MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY
/MIKEL & 6HARLES DAENEN, individually & )
on behalf of their minor children J.D., S.D., & L.D.; )
,/GAYLE HOKANSEN, BARRY SPITZER; -,61 &)
.BRENDAN KELLEHER, individually &,,o n behalf )
of their minor children D.K. and K.K; CATHY )
MCNALLY, jndividually & on behalf of her minor )
child C.M.;'SUE & CARL OLS N; ?LYSSA & )
AEROME PATTON;CORI &CONN RYDBERG; )
✓fULIE &'liM VERELLEN, individually & on )
behalf of their7flnor children D.V. & E.V.; & )
4LOANE &gOSEPH KITOWSKI, individually & )
on behalf of their minor children D.K. and S.K. )
Plaintiffs, )
V. )
IC1TY OF BOZEMAN, a municipality, GOLF )
COURSE PARTNERS, INC., and JOHN DOES 1 )
through 10, )
Defendants. )
Cause No. DV - 1 S- r% 9 B
COMPLAINT AND DEMAND
FOR JURY TRIAL
Cz� : v'VV w.U✓j J-SSuAC
Plaintiffs Mikel Daenen, Charles Daenan, individually and on behalf of their minor
children J.D., S.D. and L.D. (collectively "Daenens"), Gayle Hokensen ("Hokensen"), Garry
Spitzer ("Spitzer"), Abi Kelleher and Brendan Kelleher, individually and on behalf of their
minor children D.K. and K.K. (collectively "Kellehers"), Cathy McNally, individually and on
behalf of her minor child, C.M. ("McNallys"), Sue Olsen and Carl Olsen ("Olsen"), Alyssa
Patton and Jerome Patton ("Patton"), Lori Rydberg and Donn Rydberg ("Rydbergs"), .
individually, Julie Verellen and Jim Verellen, individually and on behalf of their minor children
D.V. and E.V. ("Verellens"), and Sloan Kitowski and Joseph Kitowski individually and on
behalf of their minor children D.K and SX ("Kitowskis )(all, collectively, the "Plaintiffs") file
this Complaint against Defendants City of Bozeman, (the "City"), and Golf Course Partners, Inc.
(the "Developer"), and JOHN DOES 1 through 10 (all collectively, the Defendants") and allege
as follows:
NATURE OF THE ACTION.
The Plaintiffs are individuals (and their minor children) who bought property and/or live
in the Bridger Creek Subdivision (the "Subdivision"). Plaintiffs bought in the Subdivision
based on the understanding and expectation that they would live in a safe area of Bozeman,
Montana. They rightfully expected that the Developer, when planning, submitting, and
marketing the Subdivision for sale, and the City, when reviewing and conditionally approving
the Subdivision, would act consistent with their legal duties and/or police powers to protect and
promote the public health, safety, and the general welfare. See MCA § 76-3-102(1).
Their expectations stem, in part, from the inalienable rights afforded Montana citizens in
our Constitution, including, "the right to a clean and healthful environment and the rights of
pursing basic necessities enjoying and defining their lives and liberties, acquiring, possessing
COMPLAINT Page 2
property, and seeking their safety, health, and happiness in all lawful ways." Mont. Const. Art.
11, § 3. It also stems from the constitutional requirement that "the State and each person shall
maintain and improve a clean and healthful environment," a requirement which applies to state
and private action. Mont. Const. Art. IX, Sec. 1; Cape France Enterprises v. Estate of Reed,
2001 MT 139, 9 32, 305 Mont. 513, 29 P.3d 1011 (2001).
When the Plaintiffs bought property in the Subdivision, they knew of the nearby City
Landfill (the "Landfill') and that odor and blowing trash may be issues. But, they did not know,
and were not warned, that an underground toxic plume generated by the Landfill was leaking,
and had been leaking for years, into the groundwater that traveled under the property they
purchased. Not did they know, and were not warned, what the City, MDEQ (through its
predecessor agency) and Developer already knew at the time the City approved the Subdivision:
that the Landfill had been leaking toxic substances into the groundwater for years and the
resulting toxic plume was flowing, and would continue to flow, through the properties the
Plaintiffs were purchasing in the Subdivision.
Rather, the Plaintiffs trusted that the City and Developer would follow the law and not
approve the creation of a Subdivision, let alone permit the sale of lots, in the Subdivision if they
knew, or in the exercise of reasonable care should have known, that subsurface toxic substances
were migrating under the Subdivision, through the soil to the surface and into homes built on lots
in the Subdivision.
Had they known what the Defendants knew about the escaping toxic waste, or had the
City and/or Developer properly performed their duties to ensure and protect the public health and
safety by denying the Subdivision, requiring remediation or (at the very least) warning of the
existence and character of the toxic chemicals flowing under their property and routes of
COMPLAINT Page 3
exposure through the soil, the Plaintiffs would not have purchased property in the Subdivision
and would not have exposed themselves and their children to the invisible hazards from the
leaking toxic wastes. Cf., Cape France Enterprises, 2001 MT 139, T 8, 305 Mont. 513, 29 P.3d
1011 (2001).
Instead, the application for and governmental review and approval of this Subdivision
created a false sense of security that the land was safe for human habitation as the fundamental
role of government in reviewing and conditioning use of private land is to promote and ensure
the public health, safety, and general welfare by regulating the subdivision of land, which
includes, when necessary, denying approval of the subdivision. MCA § 76-3-608. As a result
of these failures, the Plaintiffs bring this action against the Defendants.
PARTIES.
1. All Plaintiffs are Montana citizens and residents of Gallatin County, Montana.
2. Plaintiffs Mikel and Charles Daenen own a fee interest in real property in Gallatin
County located in Phase III of the Subdivision and more particularly described as 938 St.
Andrews Drive, Bozeman, Montana. They live in their home in the Subdivision with their minor
children: J.D., S.D. and L.D.
Plaintiffs Gayle Hokanson and Gary Spitzer own, as tenants in common, real
property in Gallatin County located in Phase III of the Subdivision and more particularly
described as 644 St. Andrews, Drive, Bozeman, Montana. They live in their home in the
Subdivision.
4. Plaintiffs Abi and Brendan Kelleher own real property in Gallatin County located
in Phase IH of the Subdivision and more particularly described as 485 St. Andrews Drive,
COMPLAINT Page 4
Bozeman, Montana. They live in their home in the Subdivision with their minor children: D.K.
and K.K..
5. Plaintiff Cathy McNally owns real property in Gallatin County located in the
Subdivision and more particularly described as 522 St. Andrews Drive, Bozeman, Montana. She
lives in her home in the Subdivision with her minor child, C.M.
6. Plaintiffs Sue and Carl Olsen own real property in Gallatin County located in
Phase III of the Subdivision and more particularly described as 753 St. Andrews Drive,
Bozeman, Montana.
Plaintiffs Alyssa and Jerome Patton own real property in Gallatin County located
in Phase III of the Subdivision, but have not built a home on their lot because of the presence of
VOCs.
8. Plaintiffs Lori and Don Rydberg own real property in Gallatin County located in
Phase III of the Subdivision and more particularly described as 1079 Caddie Court, Bozeman,
Montana. They live in their home in the Subdivision.
9. Plaintiffs Julie and Jim Verellen own real property in Gallatin County located in
the Subdivision and more particularly described as 902 St. Andrews, Bozeman, Montana.
10. Plaintiffs Sloane and Joseph Kitowski own a fee interest in certain real properties
in Gallatin County located in the Subdivision and more particularly described as 611 St.
Andrews, Bozeman, Montana.
11. Defendant City is a Montana municipality with offices at 121 North Rouse,
Bozeman, Montana.
12. Defendant Developer is a Montana corporation with its registered agent in
Bozeman, MT.
COMPLAINT Page 5
13. Defendants John Does 2 through 10 are persons (either individuals, corporations,
partnerships, or some other private or government entity), whose identities or specific roles are
currently unknown to Plaintiffs, but who are, or have been, involved in the ownership of the land
where the Landfill is located, or are, or have been, involved in the ownership or management of
the Landfill.
14. The Subdivision is located in the Southeast 1/4 and Southwest 1/4 of Section 30 in
Township 1 South Range 6 East Gallatin County, Montana.
15. Venue is proper in this Court.
16. This Court has personal jurisdiction over the Plaintiffs and Defendants.
17. This Court has subject matter jurisdiction over the claims alleged below.
GENERAL ALLEGATIONS.
A. The Bozeman Municipal Landfill.
18. The Bozeman Municipal Landfill is located on the southern slope of the Bridger
Mountain Range within the City of Bozeman. It consists of two (2) cells: one lined and the
other unlined. It is located upgradient from Bridger Creek, a perennial stream that flows into the
Gallatin River. Groundwater flowing under the Landfill is hydrologically connected to Bridger
Creek.
19. The City started accepting solid waste in the Landfill around 1970, which
continued until 2008 when it closed the Landfill in favor of a landfill located near Logan,
Montana, and miles from any significant population.
20. Between 1970 and 2008, the City accepted waste, including hazardous waste, and
collected revenues for that service from individuals, businesses, small quantity generators, the
.COMPLAINT Page 6
hospital, the City, County, and others. For many years, the landfill was open six days per week;
18 hours per day, Monday through Friday, and five hours on Saturdays.
21. The City operated the Landfill on its own behalf and on behalf of the County, as
its agent, from the time of the Landfill's opening.
22. As stated, the Landfill consists of two cells, including the original, unlined cell,
29 -acres in size, into which waste, including hazardous waste was dumped and for which the
City was paid.
23. For many years, toxic chemicals leaked (and continue to leak) from the cells and
infiltrated the surrounding groundwater. The toxic chemicals leaking from the cell include, but
are not limited to, tetrachloroethylene, trichloroethylene, vinyl chloride, and dichloromethane.
24. The toxic chemicals leaking from the Landfill are a cocktail of industrial solvents
and volatile organic compounds (collectively "VOCs"), which are poisonous to the environment,
animals, and people. VOCs are invisible to the naked eye and are only revealed through
specialized testing.
B. The City and State Discover the Landfill is Leaking.
25. The City, Gallatin County, and State knew the Landfill was leaking VOCs into
the groundwater and migrating under adjacent property that later became Bridger Creek
Subdivision, as early as the mid-to-late 1980's. In a May 31, 1984 "Summary Sheet" prepared
by Bozeman's Public Service Director, Engineering Officer and Street Superintendent, the City
acknowledged problems with the Landfill, including "[h]igh groundwater at the landfill is
causing the need for monitoring wells, [and] remedial action ......
..:' As a result, the City, on its
own behalf and on behalf of the County, began monitoring the groundwater surrounding the
Landfill with wells placed on land that would later become the Subdivision. As early as 1984,
COMPLAINT Page 7
the City acknowledged that "[m]onitoring wells indicate that remedial measures may be
necessary."
26. The City conducted its monitoring tests with results consistently showing VOCs
above permissible standards, including above the Environmental Protection Agency's ("EPA")
Maximum Contaminant Level ("MCL") standard.
27. The City and State knew, or should have known, that the elevated VOCs above
industry standards were caused by chemicals leaking from the Landfill and migrating down
gradient under the Subdivision property and knew, or should have known, that such leaks
presented known potential risks to human health.
28. In 1988, the United States Environmental Protection Agency (the "EPA")
prepared a "Report to Congress, titled "Solid Waste Disposal in the United States" (the "EPA
Report"). The EPA identified impacts for Municipal Solid Waste Landfills, like the City of
Bozeman landfill, including the following:
a. Municipal solid waste landfills have degraded and may continue to degrade the
environment;
b. Human health impacts from exposure to ground water contamination caused by
municipal solid waste landfills have not been documented. However, taken as a
whole, the data indicate that releases to the ground water from municipal sold
waste landfills present potential risks to human health;
C. Acute human health impacts associated with methane releases have been
documented; and
d. The Agency is currently determining the extent of human health risks that may
result from emissions of volatile organic compounds....
COMPLAINT Page 9
Id. at ES -2. The EPA Report also concluded that existing solid waste regulations were
inadequate, stating: "Federal and some State solid waste regulations lack the following essential
requirements: location criteria, appropriate design criteria, ground -water monitoring, corrective
action, closure and post -closure care, and financial responsibility." Id. It concluded, among
other things, that health risk assessments were necessary.
29. In 1991, several years before the Developer applied for and the City approved the
Subdivision, the EPA published its Final Report in support of revisions to the Code of Federal
Regulations ("CFR") governing solid waste disposal facilities. The Bozeman Landfill is a solid
waste disposal facility, as that term is used in the EPA's Final Report. The Final Report made
clear the hazards associated with landfills, including hazards associated with the migration of
toxins under adjacent properties.
30. The EPA's 1991 Final Report also addressed landfills, like the Bozeman Landfill
that had been in operation prior to regulations adopted in 1980, which banned the acceptance of
hazardous waste in sanitary landfills. In response to criticisms that the list of monitoring
requirements for hazardous substances were too extensive, EPA wrote:
For several reasons, EPA believes that it is appropriate for constituents on appendix II to
generally be consistent with the constituents required for compliance monitoring under
subtitle C of RCRA. First, hazardous wastes were routinely disposed of in municipal
solid waste landfills before the amendments to RCRA were promulgated in 1980 ....
Second, municipal solid waste landfills may receive hazardous waste from small quantity
generators (SQG) and household hazardous waste (HHW). Multiple SQG's and multiple
sources of HHW may collectively result in substantial quantities of hazardous wastes at
MSWLFs. Further, MSWLFs may not have adequate engineering controls (e.g., either a
natural or synthetic liner and a leachate collections system) to prevent hazardous wastes
from contaminating groundwater.
31. In 1995, and following discovery of hazardous chemicals leaking from the
Bozeman Landfill, the DEQ gave the City two years to assess and correct groundwater
contamination migrating from its Landfill.
COMPLAINT Page 9
32. In 1995, the City expanded the Landfill by opening a new cell adjacent to and up -
gradient from the Subdivision.
33. The City, on its own behalf and on behalf of the County, failed to take appropriate
measures in response to the DEQ's 1995 directives and did not adequately remove the VOCs.
34. The City's attempt to respond to the problems created by the Landfill did not, for
example, adequately address leachate or stop the flow of a toxic plume coming from the Landfill
and flowing through the property that would become the Subdivision.
C. 1996 -- The City Considers and Approves the Bridger Creek Subdivision But Does
Not Mention or Condition Approval Upon Remediation, Mitigation or Warning of
the Known Hazard.
35. On January 11, 1996, the Developer submitted its application to the City for
preliminary plat approval of Phases II and III of the Subdivision. The Subdivision, and in
particular Phase M of the Subdivision, is located adjacent to and down gradient from the
Landfill.
36. In its application to the City, Developer stated that Phases II and III in the
Subdivision would include 47 single family residential lots, 1 condominium residential lot in
Phase U, and 44 single family residcntial lots in Phase III. The Developer and the City knew
that the Developer intended that families with school age children, and other individuals, would
purchase lots in Phase III and occupy homes on those lots.
37. Montana law requires applications to subdivide property, like the one submitted
by Developer for the Subdivision, to address and satisfy the mandates of the Montana
Subdivision and Platting Act, MCA §§76-3-101, et. seq. (the "Act").
38. The purpose of the Act was, and is, to promote the public health, safety, and
general welfare by regulating the subdivision of land. MCA § 76-3-102(1). In addition to the
COMPLAINT Page 10
Act, the City promulgated and adopted regulations to, in part, further the public health, safety,
and general welfare purposes of the Act.
39. At the time of its application, the Developer and City knew about VOCs leaking
from the Landfill into the groundwater that flowed through the property of the proposed
Subdivision. Defendants also knew that groundwater below the Subdivision was shallow and the
soils were loamy.
40. As part of the review process, the City required and the Developer commissioned,
various reports as part of the required environmental assessment for subdivision review,
including a Geotechnical Investigation Report, certified by a registered engineer in the State of
Montana, for review and approval by the City Engineer, which included, as required issues of
study, groundwater depth, on-site soils investigation, and existing groundwater monitoring
investigations. See, e.g., City of Bozeman, Project Engineer's Memo to Development Review
Committee, dated February 28, 1996, 15, pp. 1-2.
41. City staff members also recommended a buffer zone between the Landfill and the
Phase II and III development (only for purposes of blowing garbage and odor), but the Developer
objected to the buffer zone, stating that it "[b]clievcs that the requirement to provide a ...
building setback adjacent to the landfill is a "taking" of property without just compensation."
The City declined to impose the 100 -foot buffer zone as a condition to plat approval.
42. The application of the Developer contained groundwater and information
concerning the geology of the Subdivision. Although the Developer knew of the existence of the
contaminated groundwater flowing beneath the proposed subdivision, its application for
subdivision approval said nothing about the existing environmental contamination.
COMPLAINT Page 11
43. The City of Bozeman, through its planning and engineering departments,
reviewed the Application and, despite knowing of the existence of hazardous chemicals below
the proposed subdivision, the City's report on the subdivision said nothing about the existing
pollution and VOCs that were being transported from the Landfill into the groundwater, and then
flowing under the Subdivision and migrating upward through the soil at levels that exceeded
EPA standards. Thus, although the City required reports on geology, groundwater and
groundwater monitoring, which would lead a reasonable person to believe that the City was
properly discharging its duty to evaluate and impose conditions to mitigate public health and
safety issues associated with the proposed Development, the City imposed no conditions with
respect to eliminating, mitigating, or warning of the existing pollution, within the approved
development, that was known to be hazardous to human health and the Developer also failed to
undertake any such actions.
44. On September 3, 1996 and despite the dangers associated with the toxic plume
and the City's knowledge of the existence of that toxic plume under the proposed development,
the City gave the Developer conditional preliminary plat approval for Phases II and III. None of
the conditions involved remediating or mitigating the VOCs leaking from the Landfill, nor did it
require the Developer to notify potential buyers of the land in the Subdivision about the VOCs.
45. The Developer knew about the leaking VOCs from the Landfill and that those
VOCs were traveling in the groundwater through the property constituting Phase III of the
Subdivision. Developer also knew, or should have known, that the Landfill would cause public
health and safety concerns to any person purchasing lots in Phase III. Cf.,
http://www.atsdr.cdc.gov/HAC/landfrlblhtnil/appc.html.
COMPLAINT Page 12
46. Prior to and during the process in which the Developer sought approval of Phases
II and III of the Subdivision, the City knew, or should have known, that hazardous wastes were
routinely dumped into the Landfill and that the wastes could and did migrate into the
groundwater creating a health hazard for those who lived on property down gradient from the
Landfill. It knew, or should have known, that the health hazards could create bodily injury and
property damage to those down gradient from the Landfill as well as be a public and private
nuisance.
47. The City should have denied the application for subdivision, or at a minimum,
imposed as a conditions of approval, before lots could be marketed and sold, that the Developer
remediate the environmental hazards and/or notify potential purchasers of lots in the Subdivision
that a toxic plume was traveling through the property that would become part of the Subdivision
and would create health hazards to owners and occupiers of the property.
48. The Developer had a duty to warn of hazardous conditions known by it and
existing on the subject property.
49. Despite the foregoing, none of the Defendants notified any of the Plaintiffs of the
dangers from the migrating toxic plume that travels through land Plaintiffs were purchasing in
the Subdivision and the subdivision review process and approval created a false sense of security
in that the City would not, pursuant to its police powers and duties owed to third parties, approve
a development that was hazardous to human health.
50. The City and the Developer ignored the known and foreseeable dangers to all
those who would purchase lots in Phase fII of the Subdivision and those who would live in
homes built in Phase III of the Subdivision.
COMPLAINT Page 13
51. The Defendants failed to properly consider the facts regarding the toxic plume
when reviewing and approving Phases II and III of the Subdivision or require proper remediation
or mitigation of known risks. Rather, they approved the Developer's request for final plat of
Phases II and III of the Subdivision, allowing the Developer to sell lots to members of the public,
despite the dangers hidden to the public, but well-known by the Defendants.
52. The City's review and approval of the Subdivision created a false sense of
security that the property was safe to purchase and live on.
53. The Developer marketed and sold lots in the Subdivision to the public without
disclosing the hidden dangers it knew about.
advice.
54. In approving the Subdivision, the City acted against its Sanitation Manager's
55. The City, on its own behalf and the County's behalf, petitioned MDEQ for
closure of a monitoring well within the Subdivision that showed unsafe and elevated V OC
levels.
56. The MDEQ improperly approved the request to close the monitoring well.
57. By approving Phase III of the Subdivision for preliminary and ultimately final
plat, the City and the Developer allowed the public, including the Plaintiffs, to believe
purchasing land in Phase III and living on the property was safe for human habitation.
58. The Developer and the City should have disclosed to potential buyers of lots
within the Subdivision the known groundwater contamination and VOC leaks from the Landfill.
The City should not have approved preliminary or final plat for Phase III of the Subdivision
based upon what they knew, or should have conditioned approval of the subdivision upon proper
remediation of the property and warnings to the consuming public.
COMPLAINT Page 14
59. The City, ignoring the dangers (to both health and property value) to those
individuals and families who would reside in Phase III of the Subdivision, approved building
permits and certificates of occupancy and failed to inform those individuals and families of the
known dangers of the toxic plume underneath the ground.
60. It was reasonable for the Plaintiffs to believe that the City would perform its
duties and prevent a subdivision from being approved that was not safe for human habitation, but
the City failed in exercising its duties.
61. It was reasonable for the Plaintiffs to believe that the City would properly perform
its duties and not allow a toxic plume to escape the Landfill and adversely affect their properties,
but the City failed in exercising its duties.
62. It was reasonable for the Plaintiffs to believe that the Developer would represent
the correct and true state of the Property, within the Subdivision, when applying for Subdivision
approval, marketing property within the Subdivision, and selling property to the Plaintiffs within
the Subdivision.
63. VOC gasses within the contaminated groundwater under Phase III of the
Subdivision are a nuisance and trespassing on Plaintiffs' properties and, for those that have
homes, invading their homes. VOCs can persist for decades after a release as there is little
oxygen or bacteria in groundwater to break them down. Accordingly, this is a continuing
nuisance and continuing trespass.
64. The unlawful presence of VOC gasses in, on, and around the Plaintiffs' properties
are causing them damages in an amount to be determined at trial.
65. In 2007, the City, on its own behalf and the County's behalf, sent NIDEQ a letter
requesting a modification of Permit No. 2951-03.
COMPLAINT Page 15
66. In 2008, the City, on its own behalf and the County's behalf, closed the Landfill
under the review and approval of the MDEQ.
67. Despite the closure of the Landfill, the toxic plume, including the VOCs from the
toxic plume, continues to enter upon the Plaintiffs' properties.
68. Prior to purchasing their properties, the Plaintiffs had no knowledge of any toxic
plume migrating from the Landfill to the properties in the Subdivision they were going to
purchase, nor did they have knowledge of the VOCs, the poisoned groundwater, the leaking
Landfill, or the results from any monitoring test that the City and MDEQ and the Developer had
seen.
69. At the time the Plaintiffs purchased their properties or homes in the Subdivision,
it was not reasonable, nor was it the practice, for a party to test for VOCs before purchasing
property or a home in the Subdivision.
70. The City and the Developer had superior knowledge to the Plaintiffs and failed to
protect the Plaintiffs or disclose to the Plaintiffs the risks they knew about before Plaintiffs
purchased their properties or built homes in Phase III of the Subdivision.
71. In April 2013, the City released a 174 -page December 2012 report of groundwater
monitoring activities completed by its contractor, Tetra Tech, Inc. (the "December 2012
Report").
72. The December 2012 Report revealed historical data as far back as 1994 of high
levels of VOCs in the soils below the properties in Phase 111 and other properties in the
Subdivision.
73. Following the December 2012 Report, and for the first time, the City notified
Plaintiffs, among others, of VOCs leaking from the Landfill into the Subdivision.
COMPLAINT Page 16
74. The City tested the Plaintiffs' homes and other locations, which tests confirmed
VOCs in the groundwater running through the Plaintiffs' properties.
75. VOCs leaking from the Landfill are in the properties owned by the Plaintiffs and,
for those that have homes, in their homes.
76. Some VOC levels were high enough to require the immediate design and
installation of mitigation systems.
77. The VOC's discovered under the Plaintiffs' properties resulted from VOC
escaping and migrating from the Landfill.
78. The VOC levels discovered under the Plaintiffs' properties are dangerous to the
Plaintiffs' health and safety and adversely impact the value of the Plaintiffs' property.
79. The VOCs discovered in the Plaintiffs' properties can accumulate and, for those
that have bought or built homes, they accumulate under their homes and migrate through floors
up into the homes.
80. The City -attempted mitigation efforts on the Plaintiffs' properties have not
removed VOC contamination.
81. The City has not contained VOC migration from the leaking Landfill.
82. The MDEQ has not enforced its requirement that the City implement corrective
measures to protect the Plaintiffs from VOC contamination.
83. The VOCs adversely impact the Plaintiffs' property values and ability to finance
their properties. In addition, the VOCs increase the risks of illness, cancer, death, and genetic
damage from exposure.
COMPLAINT Page 17
84. The Plaintiffs have suffered and continue to suffer damage from the actions of the
Defendants, including suffering diminished property values, involuntary exposure to toxic
substances, health risks, emotional distress, the need to restore their property, and other damages.
85. Each day the City, refuses to prevent VOCs from migrating onto the Plaintiffs'
property, the Plaintiffs suffer a new injury.
86. The Plaintiffs, and other landowners in the Subdivision, through their respective
counsel tendered claims against the City and State pursuant to MCA §2-9-301 and the substance
of those claims, including the claims of the other landowners, are incorporated by reference. The
City and State denied the claims of all landowners, including the Plaintiffs.
COUNT ONE (NEGLIGENCE)
87. Plaintiffs incorporate the foregoing allegations herein, as if set forth in full.
88. The City, on its own behalf and on behalf of the County, and the County itself
owed various duties that include but are not limited to the duty to operate the Landfill in a
manner that would prevent the build up, escape, and/or migration of VOCs from the Landfill
onto the Plaintiffs' properties.
89. The City had various duties that include, but are not limited to, the duty to only
approve applications for subdividing property, like the Subdivision, if the subdivided property
being made available for sale is not contrary to the safety and health of those who may purchase
property in the subdivision and to deny subdivision applications, like the Subdivision, that pose
threats to the health and safety of the people who may buy the subject property. In the
alternative, it had a duty, consistent with its policy powers to protect human health, to condition
approval of the subdivision upon remediation of the known substances that were, and arc,
hazardous to human health.
COMPLAINT Page 18
90. The Developer had various duties to submit a subdivision application for the
Subdivision that properly evaluated, protected and promoted the safety and health of those who
may purchase property in the subdivision, including remediation of known hazards and/or to
warn of the existence of the known hazards.
91. The City had various duties to notify Plaintiffs of the dangers posed by the
migrating toxic plume and to represent the sale of property in the Subdivision with full and
complete disclosure of the safety and health risks associated with the property.
92. The City had a duty to notify those individuals who sought building and
occupancy permits of the dangers posed by the migrating toxic plume from the Landfill before
issuing the permits.
93. The Developer had various duties to market the property for sale in the
Subdivision and to close any sale of property within the Subdivision with full and complete
disclosure of the dangers posed by the migrating toxic plume and intrusion of VOCs into homes,
and any and all safety and health risks associated with the property, including vapor intrusion.
94. The City had duties to ensure and enforce proper operation, testing, monitoring,
mitigation, remediation and closure of the Landfill and prevent any VOC migration therefrom.
95. The Defendants each owed the foregoing duties to Plaintiffs.
96. The Defendants each breached their duties to the Plaintiffs.
97. The Defendants' breach of their duties have caused damages to the Plaintiffs,
including property devaluations and unreasonable risks to their health and safety.
98. The Defendants are liable to Plaintiffs for compensatory, restorative and punitive
damages where allowable; in amounts to be determined at trial.
COMPLAINT Page 19
COUNT TWO (NUISANCE).
99. Plaintiffs incorporate the allegations in paragraphs 1-98 as if set forth in full.
100. The VOCs leaking from the Landfill have contaminated and polluted and
continue to contaminate and pollute the groundwater in the Plaintiffs' properties and are a
nuisance that improperly invades Plaintiffs' right to use and enjoy their properties.
101. Such nuisance is a private nuisance. In the alternative, it is a public nuisance
especially injurious to Plaintiffs.
102. Said nuisance (private and/or public) is a continuing nuisance.
103. The Defendants are each strictly liable for the damages resulting from the
nuisance, without regard to their negligence. Alternatively, the Defendants were each negligent
as set forth above, and thus are liable for all damages caused by them.
104. Plaintiffs are entitled to an injunction, requiring Defendants to each abate the
nuisance they created by: (1) ceasing to allow VOCs from escaping the Landfill; and (2) cleaning
up the contamination which already exists under the Subdivision to restore it to its condition
without the invasion of the VOCs from the Landfill.
105. Plaintiffs are entitled to an award of damages, including: (1) compensatory
damages for harm suffered; (2) prospective compensatory damages for harm which will be
suffered in the future; (3) stigma damages; and (4) restoration/remediation damages; and (5)
where allowed, punitive damages.
COUNT THREE (STRICT LIABILITY)
106. Plaintiffs incorporate the allegations in paragraphs 1-105 as if set forth in full.
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107. In their ownership, operation, monitoring and/or financial beneficial use of the
Landfill, the City, had under its control hazardous substances, which were allowed to escape
from the Landfill into the' groundwater and travel to and through the Plaintiffs' properties.
108. Defendant proximately caused injury and damage to Plaintiffs as alleged above.
109. Defendant is strictly liable to Plaintiffs in an amount to be determined at trial.
COUNT FOUR (TRESPASS).
110. Plaintiffs incorporate paragraphs 1-109 as if set forth in full.
111. The escaping VOCs from the Landfill have been, and continue to be, unlawfully
trespassing on Plaintiffs' properties.
112. The escaping VOCs from the Landfill that are in and on Plaintiffs' properties
constitute, and have constituted, an intrusion upon their properties without their consent,
resulting harm to the Plaintiffs
113. The City is responsible for the unlawful trespass of VOCs on to Plaintiffs'
properties.
114. The trespassing VOCs are interfering with the use and enjoyment by the
Plaintiffs' of their properties.
115. As a result of the Defendant's trespasses, the Plaintiffs are entitled to an award of
compensatory, restorative, and punitive damages and an injunction as more particularly
described in preceding paragraphs.
COUNT FIVE (VIOLATIONS OF MONTANA CONSTITUTION).
116. Plaintiffs incorporate the allegations in paragraphs 1-115 as if set forth in full.
117. Article II, Section 3 of the Constitution of the State of Montana recognizes that
certain inalienable rights of Montana citizens, including "the right to a clean and healthful
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environment and the rights of pursing basic necessities enjoying and defining their lives and
liberties, acquiring, possessing property, and seeking their safety, health and happiness in all
lawful ways."
118. Article IX, Section 1 of the Montana Constitution provides that the State and each
person shall maintain and improve a clean and healthful environment. Cape France Enterprises
v. Estate of Reed, 2001 MT 139,132, 305 Mont. 513, 29 P.3d 1011 (2001).
119. Defendants' actions, and inactions, as set forth above, violate the Plaintiffs'
constitutional right to a clean and healthful environment and improperly infringes upon the
ability to enjoy their property. It also constitutes a violation of the Defendants' duties to
maintain and improve a clean and healthful environment.
120. Defendants have degraded or improperly allowed the improper degradation of the
environment to the Plaintiffs' detriment, including the contamination and pollution of
groundwater and the Plaintiffs' properties.
121. Plaintiffs are entitled to damages from the Defendants and an Order compelling
the Defendants to remedy the damages caused through the clean-up of the contaminated soils and
groundwater, or for damages in an amount sufficient to fully remediate the contamination.
122. Defendants, in polluting and contaminating Plaintiffs' lands, groundwater and
homes, have violated and continue to violate the Plaintiffs' fundamental constitutional right to a
clean and healthy environment.
123. As a result of the Defendants' constitutional violations, the Plaintiffs are entitled
to damages, restitution, restoration, and/or other compensation in amounts as will be just to fully
compensate the Plaintiffs and/or deter the Defendants from conducting themselves in the same or
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similar way in the future, including an award of interest on all such sums to avoid injustice and
vindicate their constitutional right to a clean and healthy environment.
COUNT SIX (PUNITIVE DAMAGES).
124. Plaintiffs incorporate the allegations in paragraphs 1-124 as if set forth in full.
125. The Developer acted with actual fraud or actual malice by misrepresenting the
condition of the property in the Subdivision that it marketed and sold to Plaintiffs.
126. The Developer acted with malice by having knowledge of facts or intentionally
disregarding facts that created a high probability of injury to the Plaintiffs and the environment
and either deliberately proceeded to act in conscious or intentional disregard of the high
probability of injury to the Plaintiffs and the environment, or deliberately proceeded to act with
indifference to the high probability of injury to the Plaintiffs, the environment, and the Plaintiffs'
fundamental right to a clean and healthful environment.
127. Plaintiffs are entitled to an award of punitive damages against the Developer, in
an amount to be determined by the jury, sufficient to punish and deter the Developer from such
future conduct.
COUNT SEVEN (INVERSE CONDEMNATION).
128. Plaintiffs incorporate the allegations in paragraphs 1-127 as if set forth in full.
129. The Plaintiffs' properties are privately owned.
130. By allowing the migration of leaking VOCs onto the Plaintiffs' properties and in
their homes the City has taken the Plaintiffs' properties without just compensation.
131. The City has adversely affected the use and marketability of the Plaintiffs'
properties.
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132. The Plaintiffs arc entitled to damages from the City equal to just compensation for
the improper taking.
COUNT EIGHT (MEDICAL MONITORING).
133. Plaintiffs incorporate the allegations in paragraphs 1-132 as if set forth in full.
134. The Plaintiffs have been exposed to hazardous substances through the negligence
and/or recklessness of the Defendants.
135. As a factual and legal result of this exposure, the Plaintiffs suffer an increased risk
of contracting a serious latent disease.
136. The increased risk of contracting a disease or illness makes periodic diagnostic
medical examinations reasonably necessary and monitoring and testing procedures exist which
make the early detection and treatment of the disease possible and beneficial.
137. Accordingly, Plaintiffs are entitled to recover from the Defendants damages for
the cost of present and future periodic diagnostic medical examinations as a result of their
exposure to a known hazardous substance(s) in order to provide early detection of any illnesses
caused by exposures to the contaminants, including VOCs, released by the Defendants.
Plaintiffs also seek annoyance and discomfort damages and punitive damages in connection with
medical monitoring.
138. Plaintiffs incorporate the allegations in paragraphs 1-138 as if set forth in full.
139. As a result of the toxic contamination that continues to leak and migrate from the
Landfill on a daily basis, Plaintiffs continue to be exposed to toxic materials and their property
continues to be invaded.
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140. The continued exposure to toxic materials of Plaintiffs and their families is
causing long-term irreparable damages that cannot be cured by periodic damage awards or
periodic court ordered cleanup.
141. As such, there is no adequate remedy at law and only an injunction preventing the
release of any more VOCs from the Landfill into the groundwater will protect the Plaintiffs and
their families from future harm.
COUNT TEN (CONSUMER PROTECTION ACT).
142. Plaintiffs incorporate the allegations in paragraphs 1-141 as if set forth in full.
143. Plaintiffs are consumers under Mont. Code Ann. §30-14-102.
144. The Developer conducted a trade or commerce in the creation and sale of lands
within the Subdivision.
145. The Developer conducted unfair and deceptive trade practices in the creation and
sale of the lands within the Subdivision to Plaintiffs who purchased lots from the Developer
under Mont. Code Ann. §30-14-103.
146. The Plaintiffs bought property from the Developer directly or through the chain of
commerce and are therefore owed duties of fair trade and commerce practices from the
Developer.
147. The Developer is liable to the Plaintiffs for damages, including but not limited to
treble damages and attorneys' fees and costs of prosecuting this action under Mont. Code Ann.
§30-14-133.
COUNT ELEVEN (DECEIT).
148. Plaintiffs incorporate the allegations in paragraphs 1-147 as if set forth in full.
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149. The Developer, pursuant to Mont. Code Ann. §27-1-712, willfully deceived the
Plaintiffs by a) suggesting as a fact that which was not true all while not believing it to be true; b)
asserting as a fact that which was not true all while having no reasonable ground for believing it
to be true; c) suppressing a fact they were bound to disclose and giving information of other facts
that were likely to mislead the Plaintiffs; and/or d) making a promise without any intention of
performing it.
150. The Developer acted with an intent to induce the Plaintiffs to alter their position
(namely purchase land in the Subdivision) to their injury or risk.
at trial.
151. The Developer is liable for the Plaintiffs' damages in an amount to be determined
COUNT TWELVE (ACTUAL FRAUD).
152. Plaintiffs incorporate the allegations in paragraphs 1452 as if set forth in full.
153. The Developer made a representation to the Plaintiffs that the Subdivision was
safe for purchase and residential habitation.
154. The Developer knew these representations were false because they had prior
knowledge that the Landfill was leaking harmful VOCs that. could migrate into the Plaintiffs'
lands and the Subdivision was not safe for residential habitation as designed.
155. The Developer's representations were material because they impacted the
Plaintiffs' decisions with regard to where to live and whether to buy within the Subdivision.
156. The Plaintiffs purchased land frau Developer either directly or through the chain
of commerce.
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157. The Developer knew that the representations they made were false because they
had explicit information that the Subdivision was adversely affected by VOCs migrating from
the Landfill through the land the Developer was subdividing and selling.
158. The Developer intended that its representations to the Plaintiffs would be relied
on by the Plaintiffs and that the Plaintiffs would, among other things, buy land within the
Subdivision.
159. The Plaintiffs did not know that the Subdivision was unsafe for residential
development, that the Landfill was leaking into the groundwater that travelled through lots in the
Subdivision, or that VOCs were migrating into the Subdivision lots, through the soil and into the
ambient air.
160. The Plaintiffs relied on the Developer in (among other things) buying and
improving land within the Subdivision.
161. As a result of their reliance on the Developer's representations the Plaintiffs have
suffered consequent and proximate injury or damages in an amount to be determined at trial.
COUNT THIRTEEN (CONSTRUCTIVE FRAUD).
162. Plaintiffs incorporate the allegations in paragraphs 1-161 as if set forth in full.
163. The Developer owed various duties to the Plaintiffs, including those stated above.
164. Even if the Developer did not have a fraudulent intent, it breached its duties to
Plaintiffs in a manner that gained an advantage to the Developer and by misleading the Plaintiffs
to their prejudice.
165. The Developer withheld from the Plaintiffs materially important information
about the toxic plume migrating from the Landfill through Subdivision property and the adverse
impact such plume would have on the owners, occupiers, and property values.
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VOCs.
166. The Plaintiffs suffered damage in an amount to be determined at trial.
COUNT FOURTEEN (WRONGFUL OCCUPATION OF PROPERTY).
167. Plaintiffs incorporate the foregoing allegations herein, as if set forth in full.
168. The VOCs from the Landfill are improperly occupying Plaintiffs' properties.
169. The City is liable for the wrongful occupation of the Plaintiffs' properties by the
170. Plaintiffs are entitled to damages for the wrongful occupation of their properties
in an amount determined at trial.
171. Plaintiffs incorporate the foregoing allegations herein, as if set forth in full.
172. The Developer made a representation of material fact about the condition and
safety of the property within the Subdivision;
173. The representation was untrue;
174. The Developer made the representation without any reasonable ground for
believing it to be true;
175. The representation was made with the intent to induce the Plaintiffs to rely on it;
176. The Plaintiffs were unaware of the falsity of the representation;
177. The Plaintiffs acted in reliance upon the truth of the representation and were
justified in relying upon the representation;
178. The Plaintiffs, as a result of their reliance, sustained damage in an amount to be
determined at trial.
PRAYER FOR RELIEF.
WHEREFORE, Plaintiffs pray for judgment in their favor as follows:
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1. Compensatory damages as previously set forth in the Complaint, including, but
not limited to, the cost to repair and/or remedy the damage to and restoration of the soils,
groundwater and any VOCs emanating in and through the Plaintiffs' homes; diminution in value
of property, annoyance, discomfort, mental and emotional stress and anguish, loss of enjoyment
of life, the cost of regular medical monitoring and surveillance as a result of exposure to a known
hazardous substance, increased expenses (past, present and future), personal property damages,
stigma damages in amounts to be proved at trial, together with damages to compensate them for
the violation of their fundamental constitutional right to a clean and healthful environment;
jury;
2. Treble damages against the Developer in an amount to be determined by the jury;
3. Punitive Damages against the Developer in an amount to be determined by the
4. That the Court enter an order enjoining the City from leaking, spilling or
otherwise allowing contaminants, including VOCs, to be discharged into the groundwater and/or
emanating or trespassing on to the Plaintiffs' properties;
5. That the Court require Defendants to abate the nuisance and clean up the
aquifer/groundwater in and under Plaintiffs' properties;
6. That the Court order Defendants to pay, in addition to the above -requested
damages, civil penalties to the extent allowed by law;
7. An award of prejudgment interest as allowed in law and equity;
8. For an award of Plaintiffs' reasonable attorneys' fees, expert witness fees and
costs as allowed in law and equity, including as authorized by the private attorney general
doctrine; and
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9. For such other relief to which Plaintiffs may be entitled under law or which is just
and equitable.
JURY DEMAND
Plaintiffs hereby demand a trial by jury of all claims so triable.
RESPECTFULLY SUBMITTED this 13th day o u 015.
Brian K. Gallik
John M. Kauffman
Kellie G. Sironi
Attorneys for Plaintiffs
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