30
Brian K. Gallik Oallik Law Fmn, P.e. P.O. Box 70 Bozeman, MT 59771 (406) 404-1728 [email protected] John M. Kauffman Kasting, Kauffman and Mersen, P.C. 716 South 20th Avenue, Suite 101 Bozeman, MT 59718 (406) 586-4383 [email protected] Kellie G. Sironi Attorney at Law P.O. Box 81646 Billings, MT 59108 (406) 860-9476 [email protected] Anorneys for the Plaintiffs GAllATltI Cl)UNTY CLERK OF DISTRICT COURT JENNIFER !015 JAN 13 Prl 2 19 FILED til BY .vI!f[.JL_ DEPUTY MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY "'MIKEL & CHARLES DAENEN, individually & ) on behalf of their minor children J.D., S.D., & L.D.;) Cause No. DV -, S- d=:LB ./OAYLE HOKANSEN, GARRY SPITZER; &) ...BRENDAN KELLEHER, individually &,."on behalf) of their minor children D.K. andK.K;'CATHY) COMPLAINT AND DEMAND MCNALLY,jndividually & on behalf 9fher minor) FOR JURy TRIAL child C.M.; 'SUE & CARL OLS]3N; YSSA & ) A'EROMEPATION;-LORI&DONNRYDBERG; ) AuLrn &{IM VERELLEN, individually & on ) behalf of their J11inor children D.V. & E.V.; & ) [?'\ ..1.ssue[) .,sLOANE & t{OSEPH KITOWSKI, individually & ) r,.;,..J on behalf of their minor children D.K. and S.K.. ) ) Plaintiffs, ) ) "CITY OF BOZEMAN, a municipality, '6O'LF COURSE PARTNERS, INC., and JOHN DOES 1 ) through 10, ) ) Defendants. )

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Page 1: minorchildren D.K. andbloximages.chicago2.vip.townnews.com/bozemandaily... · marketing the Subdivision for sale, and the City, when reviewing and conditionally approving the Subdivision,

Brian K. GallikOallik Law Fmn, P.e.P.O. Box 70Bozeman, MT 59771(406) [email protected]

JohnM. KauffmanKasting, Kauffman and Mersen, P.C.716 South 20th Avenue, Suite 101Bozeman, MT 59718(406) [email protected]

Kellie G. SironiAttorney at LawP.O. Box 81646Billings,MT 59108(406) [email protected]

Anorneys for the Plaintiffs

GAllATltI Cl)UNTY CLERKOF DISTRICT COURTJENNIFER

!015 JAN 13 Prl 2 19FILED til

BY .vI!f[.JL_DEPUTY

MONTANA EIGHTEENTHJUDICIALDISTRICT COURT, GALLATIN COUNTY

"'MIKEL & CHARLES DAENEN, individually & )on behalf of their minor children J.D., S.D., & L.D.;) Cause No. DV - , S - d=:LB./OAYLEHOKANSEN, GARRY SPITZER; &)...BRENDAN KELLEHER, individually &,."on behalf)of their minor children D.K. andK.K;'CATHY) COMPLAINT AND DEMANDMCNALLY,jndividually & on behalf9fher minor) FOR JURy TRIALchild C.M.;'SUE & CARL OLS]3N; YSSA & )A'EROMEPATION;-LORI&DONNRYDBERG; )AuLrn &{IM VERELLEN, individually & on )behalfof theirJ11inor children D.V. & E.V.; & ) [?'\ ..1.ssue[).,sLOANE & t{OSEPH KITOWSKI, individually & ) r,.;,..Jon behalf of their minor children D.K. and S.K.. )

)Plaintiffs, )

)

"CITY OFBOZEMAN, a municipality, '6O'LFCOURSE PARTNERS, INC., and JOHN DOES 1 )through 10, )

)Defendants. )

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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 ("Olsens"), Alyssa

Patton and Jerome Patton ("Pattons"), Lori Rydberg and Donn Rydberg ("Rydbergs"), .

individually, Julie Verellen and Jim Verellen, individually and on behalf of their minor children

D.V. and B.V. ("Verellens"), and Sloan Kitowski and Joseph Kitowski individually and on

behalf of their minor children D.K and S.K ("Kitowskis )(a11, collectively, the "Plaintiffs") file

this Complaint against Defendants City ofBozeman. (the "City"), and Golf Course Partners, Inc.

(the "Developer"), and JOHN DOES 1 through 10 (all collectively, the Defendants") and allege

as follows:

NATURE OFTHEACTION.

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 ofBozeman,

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. SeeMCA § 76-3-102(1).

Their expectations stem, in part, from the inalienable rights afforded Montana citize.o;s 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

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property, and seeking their safety. health, and happiness in all lawful ways." Mont. Canst. Art.

n, § 3. It also stems from the constitutional requirement that "the State and each person shall

maintain and improve aclean and healthful environment," a requirement which applies to state

and private action. Mont. Const. Art. IX, Sec. 1; Cape France Enterprises v. Estate ofReed.

2001 MT 139,132,305 Mont. 513,29 P.3d 1011 (2001).

When the Plaintiffs bought property in the Subdivision. they knew of the nearby City

Landflll (the "Landftll") 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. Nor did they know, and were not warned. what the City. MDEQ (through its

predecessor agency) and Developer already knew at the time the City apPfoved 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 andlor Developer properly perfonned 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 3

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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. ct, Cape France Enterprises, 2001 MT 139,lf[ 8,305 Mont. 513, 29 P.3d1011 (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 ofgovernment in reviewing and conditioning use ofprivate 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. Ail Plaintiffs are Montana citizens and residents ofGallatin County. Montana.

2. Plaintiffs Mikel and Charles Daenen own a fee interest in real property in Gallatin

County located in Phasemof 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.

3. Plaintiffs Gayle Hokanson and Gary Spitzer own, as tenants in common, real

property in Gallatin County located in Phasemof 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 mof the Subdivision and more particularly described as 485 51. Andrews Drive,

COMPLAINT Page 4

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Bozeman, Montana. They live in their home in tbe Subdivision with their minor children: D.K.

and K.K..

5. Plaintiff CathyMcNally 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 illof the Subdivision and more particularly described as 753 St. Andrews Drive,

Bozeman, Montana.

7. Plaintiffs Alyssa and Jerome Patton own real property in Gallatin County located

in Phase ill 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 illof the Subdivision and more partjcularly 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 S1. 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 S1.

Andrews, Bozeman, Montana.

11. Defendant City is aMontana municipality with offices at 121 North Rouse.

Bozeman, Montana.

12. Defendant Developer is a Montana corporation with its registered agent in

Bozeman, MT.

COMPLAINT PageS

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13. Defendants John Does 2 through 10 are persons (either individuals, corporations,

partnerships, or some other private or government en.tity), 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 and Southwest 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 Coun has subject matter jurisdiction over the claims alleged below.

GENERAL ALLEGATIONS.

A. TheBozeman Municipal LandfiU.

18. The Bozeman Municipal Landftll 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

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hospital, the City, County, and others. For many years, the landfill was open six days perweek;

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,

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 Landrill isLeaking,

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-te-Iate 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?

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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 (UEPA")

Maximum Contaminant Level ("MCL") standard.

27. The City and State knew, or should bave known, that the elevated VOCs above

industry standards were caused by chemicals leaking from the Landf.tll 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 "SolidWaste Disposal in the United States" (the "EPA

Report"). The EPA identified impacts for Municipal SolidWaste Landftlls,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 waterfrom municipal sold

waste landfills presentpotential risks to human health;

c. Acute human health impacts associated with methane releases have been

and

d. The Agency is currently determining the extent of human health risks that may

result from emissions of volatile organic corp.pounds....

COMPLAINT Page 8

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ld. at ES-2. The EPAReport 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-elosure care, and financial responsibility." [d. 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 ofFederal

Regulations ("CPR") governing solid waste disposal facilities. The Bozeman LandfIll is a solid

waste disposal facility, as that tenn is used in the EPA's Final Report. The Final Report made

clear the hazards associated with landfills, including hazards associated with themigration 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 ofmonitoring

requirements for hazardous substances were too extensive, EPA wrote:

For several reasons, EPA believes that it is appropriate for constituents on appendix IT togenerally be consistent with the constituents required for compliance monitoring undersubtitle C ofRCRA. First. hazardous wastes were routinely disposed olin municipalsolid waste landfills before the amendments to ReRA were promulgated in 1980 • ...Second, municipal solid waste landfills may receive hazardous waste from small quantitygenerators (SQG) and household hazardous waste (HHW). Multiple SQG's and multiplesources of HHWmay collectively result in substantial quantities of hazardous wastes atMSWLFs. Further,MSWL.Fs may not have adequate engineering controls (e.g., either anatural or synthetic liner and a leachate collections system) to prevent hazardous wastesfrom contaminating groundwater.

31. In 1995, and following discovery ofhazardous 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

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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 DoesNot Mention or Condition Approval Upon Remediation. Mitigation orWarning ofthe Known Hazard.

35. On January II, 1996, the Developer submitted its application to the City for

preliminary plat approval of Phases IT and illof the Subdivision. The Subdivision, and in

particular Phase ill of the Subdivision, is located adjacent to and down gradient from the

Landfill.

36. In its application to the City, Developer stated that Phases IT and III in the

Subdivision would include 47 single family residential lots, 1 condominium residential lot in

Phase II, and 44 single family residential lots in Phasem The Developer and the City knew

that the Developer intended that families with school age children, and other individuals, would

purchase lots in Phase ill and occupy homes on those lots.

37. Montana law requires applications to subdivide property, like the one submitted

byDeveloper 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 ofland. MCA § 76-3-102(1). In addition to the

COMPLAINT Page 10

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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 propeny 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 pan of the required environmental assessment for subdivision review.

including aGeotechnical Investigation Report, certified by a registered engineer in the State of

Montana, for review and approval by the 9ty Engineer, which included, as required issues of

study, groundwater depth, on·site soils investigation. and existing groundwater monitoring

investigations. See, e.g., City ofBozeman, Project Engineer's Memo to Development Review

Committee, dated February 28.1996. '15. pp. 1-2.

41. City staffmembers also recommended a buffer zone between the Landfil I and the

Phase II and illdevelopment (only for purposes of blowing garbage and odor), but the Developer

objected to the buffer zone. stating that it "[b]elieves 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

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43. The City ofBozeman, 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 LandfilHnto 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, tbe 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 n and m. None ofthe conditions involved remediating ormitigating 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 Landf1l1 and that those

VOCs were traveling in the groundwater through the property constituting Phase ill 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 ffi. Cj..

COMPLAINT Page 12

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46. Prior to and during the process in which the Developer sought approval of Phases

n and ill 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 andlor notify potential purchasers of lots in the Subdivision

that a toxic plume was traveling through the property thatwould becoIl1e part of the Subdivision

and would create health hazards to owners and occupiers of the property.

48. The Developer had a duty to warn ofhazardous 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 ill of the Subdivision and those who would live in

homes built in Phase mof the Subdivision.

COMPLAINT Page 13

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51. The Defendants failed to properly consider the facts regarding the toxic plume

when reviewing and approving Phases II andm of the Subdivision or require proper remediation

or mitigation ofknown risks. Rather, they approved the Developer's request for final plat of

Phases n and ill 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.

54. In approving the Subdivision, the City acted against its Sanitation Manager's

advice.

55. The City, on its own behalf and the County's behalf, petitionedMDEQ for

closure of amonitoring well within the Subdivision that showed unsafe and elevated VOC

levels.

56. TheMDEQ improperly approved the request to close the monitoring well.

57. By approving Phasemof the Subdivision for preliminary and ultimately finalplat, the City and the Developer allowed the public, including the Plaintiffs, to believe

purchasing land in Phase ill 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 ill 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

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59. The City, ignoring the dangers (to both health and property value) to those

individuals and families who would reside in Phase ill 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. Itwas reasonable for the Plaintiffs to believe that the City would properly perfonn

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. Itwas 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 illof 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 MDEQ a letter

requesting amodification ofPermit No. 2951-03.

COMPLAINT Page 15

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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.

61. 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 illof 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").

12. TheDecember 2012 Report revealed historical data as far back as 1994 ofhigh

levels ofVOCs in the soils below the properties in Phase ill 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 tbe Landfill into the Subdivision.

COMPLAINT Page 16

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74. The City tested the Plaintiffs' homes and other locations, which tests conftrmed

VOCs in the groundwater mnning through the Plaintiffs' properties.

75. VOCs leaking from the Landflll are in the properties owned by the Plaintiffs and,

for those that have homes, in their homes.

76. Some voe levels were high enough to require the immediate design andinstallation ofmitigation systems.

77. The VOC's discovered under the Plaintiffs' properties resulted from voeescaping 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 Landftll.

82. The MDEQ bas 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 ftnance

their properties. In addition, the VOCS increase the risks of illness, cancer, death, and genetic

damage from exposure.

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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 emotional distress, the need to restore their property, and other damages.

85. Each day the City, refuses to prevent VOCs from migrating ooto 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 ofall 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, andlor migration ofVOCs from the Landfill

onto the Plaintiffs' properties.

89. The City had various duties that include, but are not lirilited 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 are,

hazardous to human health.

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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 andlor 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 ofVOCS into

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 VOCmigration 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.

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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 thyy 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, monitoringand/or financial beneficialuseof the

Landfill, the City, hadunder its control hazardous substances,which were allowed to escape

from the Landfill into thegroundwater and travel to and through the Plaintiffs’ properties.

108. Defendantproximately caused injury anddamage to Plaintiffs asallegedabove.

109. Defendant is strictly liable toPlaintiffs in anamount tobedetermined at trial.

COUNTFOUR [TRESPASS).

110. Plaintiffs incorporateparagraphs 1-109asif set forth in full.

111. The escapingVOCs from the Landfill havebeen, andcontinue to be,unlawfully

trespassingon Plaintiffs’ properties.

112. TheescapingVOCs from the Landfill that are in and onPlaintiffs’ properties

constitute, andhaveconstituted, anintrusionupon their propertieswithout their consent,

resultingharmto the Plaintiffs

113. TheCity is responsible for the unlawful trespass of VOCs on to Plaintiffs’

properties.

114. The trespassing VOCs are interferingwith the useandenjoymentby the

Plaintiffs’ of their properties.

115. As aresult of theDefendant’s trespasses, the Plaintiffs are entitled to anawardof

compensatory, restorative,andpunitivedamages and an injunctionasmoreparticularly

described in precedingparagraphs.

W116. Plaintiffs incorporate the allegations in paragraphs 1-115asif set forth in full.

117. Article H, Section 3of the Constitution of the Stateof Montana recognizes that

certain inalienable rights of Montanacitizens, including “the right to aclean and healthful

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environment and the rights of pursingbasic necessities enjoyingand defining their lives and

liberties, acquiring, possessingproperty, and seeking their safety, healthandhappiness in all

lawfulways.”

118. Article IX,Section 1of theMontanaConstitutionprovides that the Stateandeach

person shall maintain and improve a clean andhealthful environment. Cape FranceEnterprises

v. Estate of Reed,2001MT 139,'1132, 305Mont. 513,29 P.3d 1011(2001).

119. Defendants’ actions, and inactions, asset forth above,violate the Plaintiffs’

constitutional right to aclean andhealthfulenvironment and improperly infringes upon the

ability to enjoy their property. It also constitutes aviolation of the Defendants’ duties to

maintain and improveaclean andhealthful environment.

120. Defendants havedegraded or improperly allowed the improperdegradation of the

environment to the Plaintiffs’ detriment, including the contaminationandpollutionof

groundwater and the Plaintiffs’ properties.

121. Plaintiffs are entitled to damages from the DefendantsandanOrder compelling

the Defendants to remedy the damages caused through the clean~up of the contaminated soils and

groundwater, or for damages in anamount sufficient to fully remediate the contamination.

122. Defendants, in pollutingandcontaminatingPlaintiffs’ lands,groundwater and

homes,have violated and continue to violate the Plaintiffs’ fundamental constitutional right to a

clean andhealthy environment.

123. As aresult of the Defendants’ constitutional violations, the Plaintiffs are entitled

to damages, restitution, restoration, and/or other compensatiou in amounts aswill bejust to fully

compensate the Plaintiffs and/or deter the Defendants from conducting themselves in the same or

COMPLAINT Page22

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similar way the future, includinganawardof interest onall such sums to avoid injustice and

vindicate their constitutional right to aclean andhealthy environment.

COUNTSIX sPUmTIVEDAMAGES).

124. Plaintiffs incorporate the allegations in paragraphs 1-124asif set forth in full.

125. TheDeveloperacted with actual fraud or actual malice by misrepresenting the

condition of the property in the Subdivision that it marketedand sold to Plaintiffs.

126. TheDeveIOper actedwithmaliceby havingknowledgeof facts or intentionally

disregarding facts that created ahighprobability of injury to the Plaintiffs and the environment

andeither deliberately proceeded to act in conscious or intentionaldisregard of the high

probability of injury to thePlaintiffsand the environment, or deliberately proceeded to actwith

indifference to the highprobability of injury to the Plaintiffs, the environment, and the Plaintiffs’

fundamental right to aclean andhealthful environment.

127. Plaintiffs are entitled to anawardof punitive damages against theDeveloper, in

anamount to bedeterminedby thejury, sufficient to punishand deter the Developer fromsuch

future conduct.

COUNTSEVEN RSECONDEMNATIO .

128. Plaintiffs incorporate the allegations in paragraphs 1-127asif 'set forth in full.

129. ThePlaintiffs’ properties are privately owned.

130. By allOwing themigrationof leakingVOCs onto the Plaintiffs’ properties and in

their homes theCity has taken the Plaintiffs’ properties without just compensation.

131. The City has adversely affected the useandmarketability of the Plaintiffs’

properties.

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132. The Plaintiffsare entitled to damages from the City equal to just compensation for

the improper taking.

COUNTEIGHTgMEDICALMONITORINGI.

133. Plaintiffs incorporate the allegations in paragraphs 1-132asif set forth in full.

134. ThePlaintiffs havebeenexposed tohazardous substances through the negligence

and/or recklessnessof the Defendants.

135. As afactual and legal result of this exposure, the Plaintiffs suffer anincreasedrisk

of contracting aserious latentdisease.

136. The increasedrisk of contracting adisease or illnessmakesperiodic diagnostic

medicalexaminations reasonably necessary andmonitoringand testingprocedures exist which

make the early detection and treatment of the diseasepossible andbeneficial.

137. Accordingly, Plaintiffsare entitled to recover from the Defendantsdamages for

the cost of present and future periodic diagnostic medicalexaminations asaresult of their

exposure to aknownhazardous substance(s) in order to provideearly detection of any illnesses

causedby exposures to the contaminants, includingVOCs, releasedby theDefendants.

‘ Plaintiffs also seek annoyance and discomfort damages andpunitivedamages in connectionwith

medicalmonitoring.

COUNTNINE CTIO .

I38. Plaintiffs incorporate the allegations in paragraphs 1‐138 asif set forth in full.

139. As aresult of the toxic contamination that continues to leak andmigrate from the

Landfill on adaily basis,Plaintiffs continue to beexposed to toxic materials and their property

continues to be invaded. ‑

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140. The continued exposure to toxic materials of Plaintiffsand their families is

causing long-termirreparabledamages that cannot becured by periodic damage awards or

periodic court orderedcleanup.

141. As such, there is noadequate remedy at law andonly aninjunctionpreventing the

releaseof anymoreVOCs from the Landfill into the groundwater will protect the Plaintiffs and

their families from future harm.

COUNT TEN {COESQMERPROTECTIQNA g fl .

142. Plaintiffs incorporate the allegations in paragraphs l - l 4 l asif set forth in full.

143. Plaintiffs areconsumers underMont.CodeAnn. §30‐14-102.

144. TheDeveloperconducted a trade or commerce in the creation and sale of lands

within the Subdivision.

145. TheDeveloperconductedunfair anddeceptive trade practices in the creationand

sale of the landswithin the Subdivision to Plaintiffswho purchasedlots from theDeveloper

underMont.CodeAnn. §30~14‐103.

146. ThePlaintiffsbought property from theDeveloper directly or through the chain of

commerce andare therefore owedduties of fair trade andcommercepractices from the

Developer.

147. TheDeveloper is liable to the Plaintiffs for damages, includingbut not limitedto

treble damages andattorneys’ fees andcosts of prosecuting this actionunderMont.CodeAnn.

§30-14-133.

COUNTELEVEN(QECEIIft.

148. Plaintiffs incorporate the allegations in paragraphs 1-147 asif 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 asafact that which was not true all while not behaving it tobetrue; b)

asserting asa fact that which was not true all while having no reasonable ground for believing it

to betrue; c) suppressing afact they were bound to disclose and giving information of other facts

that were likely to mislead the Plaintiffs; and/or d) makingapromisewithout any intention of

performingit.

150. The Developeractedwith anintent to induce the Plaintiffs to alter their position

(namely purchase land in the Subdivision) to their injury or risk.

151. The Developer is liable for the Plaintiffs’ damages in anamount to bedetermined

at trial.

COUNT ACTUAL FRAUD .

152. Plaintiffs incorporate the allegations in paragraphs 1-152asif set forth in full.

153. The Developermade arepresentation to the Plaintiffs that the Subdivisionwas

safe for purchase and residentialhabitation.

154. The Developerknew these representations were false because they hadprior

knowledge that the Landfillwas leakingharmful VOCs thatcould migrate into the Plaintiffs’

lands and the Subdivision was not safe for residential habitation asdesigned.

155. The Developer’s representations were materialbecause they impacted the

Plaintiffs’ decisions with regard to where to live andwhether to buy within the Subdivision.

156. The Plaintiffspurchased land from Developer either directly or through the chain

of commerce.

COMPLAINT - Page 26

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157. TheDeveloperknew that the representations they madewere false because they

hadexplicit information that the Subdivisionwas adversely affectedby VOCs migrating from

the Landfill through the land the Developerwas subdividing andselling.

158. The Developer intended that its representations to the Plaintiffswould berelied

onby thePlaintiffs and that the Plaintiffswould, amongother things, buy landwithin the

Subdivision.

159. The Plaintiffs did not know that the Subdivisionwas unsafe for residential

development, that the Landfillwas leaking into the groundwater that travelled through lots in the

Subdivision, or that VOCs were migratinginto the Subdivision lots, through the soil and into the

ambient air.

160. ThePlaintiffs reliedon theDeveloper in (amongother things) buyingand

improvinglandwithin the Subdivision.

161. As aresult of their reliance on theDeveloper’s representations the Plaintiffshave

suffered consequent andproximate injury or damages in an amount to be determined at trial.

COUNTTHIRTEEN(CONSTRUCTIVEFRAUD1.

162. Plaintiffs incorporate the allegations in paragraphs 1-161asif set forth in full.

163. The Developerowed various duties tothePlaintiffs.includingthose statedabove.

164. Even if the Developerdid not haveafraudulent intent, it breachedits duties to

Plaintiffs in amanner that gainedanadvantage to the Developer andbymisleadingthePlaintiffs

to their prejudice.

165. The Developerwithheld from the Plaintiffsmaterially important information

about the toxic plumemigrating from the Landfill through Subdivision property and the adverse

impact suchplumewould have on the owners, occupiers, andproperty values.

COMPLAINT . Page27

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166. The'Plaintiffs suffered damage in anamount to bedetemiined at trial.

COUNTFOQQTEEN(WRONGFULOCCUPATION0F PROPERT!).

167. Plaintiffs incorporate the foregoing allegations herein.asif set forth in full.

168. The VOCs from the Landfill are improperly occupyingPlaintiffs’ properties.

169. The City is liable for the wrongful occupationof the Plaintiffs’ properties by the

VOCs.

170. Plaintiffs are entitled to damages for the wrongful occupation of their properties

in anamount determined at trial.

COUNTFIFI‘EEE(NEGLIGENTMISREPRESENTATION2.171. Plaintiffs incorporate the foregoing allegations herein,asif set forth in full.

172. TheDevelopermadearepresentationof material fact about the condition and

safety of the property within the Subdivision;

173. The representationwas untrue;

174. The Developermade the representationwithout any reasonableground for

believing it to be true;

175. The representationwas madewith the intent to induce the Plaintiffs to rely on it;

176. ThePlaintiffswere unawareof the falsity of the representation;

177. The Plaintiffsacted in relianceuponthe truth of the representationand were

justified in relyingupon the representation;

178. The Plaintiffs, asaresult of their reliance, sustaineddamage in anamount tobe

determined at trial.

WWHEREFORE, Plaintiffspray for judgment in their favor asfollows:

COMPLAINT ' Page28

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l. Compensatory damages aspreviously set forth in theComplaint, including,but

not limitedto, the cost to repair and/or remedy the damage to and restorationof the soils,

groundwater andany VOCs emanating in and through the Plaintiffs’ homes; diminution in value

of property, annoyance, discomfort,mental andemotional stress and anguish, loss of enjoyment

of life, the cost of regularmedicalmonitoring and surveillance asaresult of exposure to aknown

hazardoussubstance. increasedexpenses (past,present and future), personal property damages,

stigma damages in amounts to be provedat trial, together with damages to compensate them for

the violation of their fundamental constitutional right to aclean and healthful environment;

2. Treble damages against the Developer in anamount to bedeterminedby thejury;

3. Punitive Damages against the Developer in an amount to be determined by the

jury;

4. That the Courtenter anorder enjoining the City from leaking,spillingor

otherwise allowingcontaminants, includingVOCs, to be discharged into the groundwaterand/or

emanatingor trespassing on to the Plaintiffs’ properties;

5. That the Court require Defendants to abate the nuisance and clean up the

aquifer/groundwater in and underPlaintiffs’ properties;

6. That the Court order Defendants to pay, in addition to the above-requested

damages, civil penalties to the extent allowedby law;

7. An awardof pre-judgment interestasallowed in law andequity;

8. For an award of Plaintiffs' reasonable attomeys' fees, expert witness fees and

costs as allowed in law and equity, including as authorized by the private attorney general

doctrine; and

COMPLAINT Page29

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9. Forsuchother relief to which Plaintiffsmaybeentitledunder law or which isjust

andequitable.

,lLIRYDEMAND

Plaintiffs hereby demand atrial byjury of all claims sotriable.

BrianK. GallikJohnM. KauffmanKellieG.SironiAttorneysforPlaintifl's

COMPLAINT Page 30