December 23, 2010 in City

Demolition firm wins 10-year battle with city

Judge rules roll-off containers don’t violate code
By The Spokesman-Review
 
At a glance

The case: City officials threatened to cite Talisman Construction Services for using its own containers to haul debris because the city holds exclusive right to haul solid waste in the city under the legal justification that it is in the best interests of public safety.

The ruling: Judge Annette Plese ruled that Talisman did not violate the city code because it is only hauling waste generated at its job sites. As for the city’s public safety argument, she said it was bunk. She ruled the city’s enforcement against Talisman was being applied “unfairly, arbitrarily and capriciously.”

A judge on Wednesday decided that the way Spokane city officials enforce the hauling of construction waste is, quite frankly, garbage.

Superior Court Judge Annette Plese sided with a local demolition business in a 10-year battle with the city over the company’s use of roll-off containers. Those are large steel containers that can be offloaded from a specialized truck and then reloaded with additional debris.

Talisman Construction Services Inc. paid about $500,000 a few years ago for three roll-off container trucks to haul debris from large demolition jobs. Company President Jess Spencer said his company, which operates in four states, could use its containers everywhere without issue except in its hometown of Spokane.

“This has been an ongoing battle for almost 10 years,” Spencer said. “We are arguing over the means and method by which a private party can haul solid waste.”

City officials threatened to cite Talisman because the city holds exclusive right to haul solid waste in the city, under the legal justification that it is in the best interests of public safety. Because the city charges fees to use the same roll-off containers, officials told Talisman that its use of private roll-off containers violate a city code designed to prohibit any competition with the city’s solid waste function.

A strict interpretation of the law could mean that anyone who hauls solid waste in his or her pickup could be cited. However, city officials testified in court that they only have enough staff to enforce the code against companies using the private roll-off containers because they are stationary and easy to inspect.

Therefore, any company using dump trucks, pickups, cars, trailers, barrels or even boxes to haul the same solid waste would not be cited. City Solid Waste Director Scott Windsor acknowledged that his policy isn’t written down, and he reserved the right to change it at any time.

“This is a classic case of big brother,” said Talisman attorney Bill Hyslop. “Just because they are the city, that doesn’t mean they get to do whatever they want. The rules are not just based on what the (solid waste) director has to say. The rules have to be written, and they have to be applied fairly and equally.”

Plese noted that a demolition crew working across the street from Talisman Construction could theoretically use dump trucks to haul the same waste as Talisman and not be in danger of a citation.

Plese ruled that Talisman did not violate the city code because it is only hauling waste generated at its job sites; the company isn’t paid to haul anyone else’s waste. As for the city’s public safety argument, Plese said it was bunk.

“This is not about the health and welfare of the public; it’s about the competition with the city,” she said.

Therefore, she ruled the city’s enforcement against Talisman was being applied “unfairly, arbitrarily and capriciously.”

Spencer estimated that it would have cost his company $88,000 over the past decade to pay the city to use its roll-off containers. In the end, he spent more than $35,000 in legal fees to get a judge to determine what he has been arguing all along.

“It’s been 10 years of meetings, discussions and phone calls. We’ve had site visits and threats of citations,” he said. “I’m pleased. We knew we weren’t doing anything wrong.”


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