Traverse City Record-Eagle

Archive: Friday

March 12, 2010

Court of appeals weighs in on landfill

BY SHERI McWHIRTER

CADILLAC -- A legal battle's outcome hinges on whether the Wexford County Landfill is a profit-making operation.

Wexford County contends its landfill is a government function and is immune from tort claims associated with decades of groundwater contamination that poisoned nearby residential water wells and undermined neighbors' property values. The Michigan Court of Appeals refused to buy that argument and in an opinion released this week sent the case back to Wexford County Circuit Court to gather more evidence.

"We are going to continue to argue they are not immune and they've contaminated these water wells and haven't done anything," said Jeff Jocks, a Traverse City attorney who represents the plaintiffs.

Wexford County and its Department of Public Works began to operate the landfill in 1973. During the 1980s, concerns emerged about possible contamination to groundwater that flows beneath the landfill, and cleanup efforts continued through the 1990s, records show.

Wexford County agreed in 2004 to provide an alternate water system for residents whose wells were contaminated. A long list of plaintiffs filed suit in 2006, claiming nuisance, trespass and negligence, among other issues related to the landfill.

Plaintiff Jack Kimble lives about a half-mile from the landfill. His water well is contaminated and he's experienced "big time" property value loss, he said.

"We're hoping they get this settled and get some of our valuation back," Kimble said. "We're just sitting back and waiting for results."

Wexford County's governmental immunity stance prompted a request for summary disposition, but a circuit judge said it hadn't been determined if the county operated the landfill as a service to taxpayers or for a profit. Governmental immunity is voided if profit-making was the goal.

Court records show the landfill turned a profit for nearly 20 years beginning in 1984 and county officials spent $2.7 million from the landfill fund between 2000 and 2005 for other county business.

Lansing attorney Dean Altobelli represents Wexford County. He argues the landfill is a government function so the county is immune to liability.

"The judge is going to have to make the decision if immunity applies or not," Altobelli said.

Michigan Court of Appeals Judges William Whitbeck, Alton Davis and Elizabeth Gleicher ordered the case back to Wexford County Circuit Court for an evidentiary hearing to determine the governmental immunity question. Judge Philip Rodgers of the 13th Circuit Court in Grand Traverse County was assigned the case and will preside over a hearing that's not yet been scheduled, court officials said.

The case could be dismissed, if evidence supports Wexford County's immunity from tort claims.

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