Hammermeister v. Northern Montana Joint Refuse Disposal Dist.

• Citation: 278 Mont. 464,925 P.2d 859
• Decision Date: 22 October 1996
• Docket Number: 96-126 and 96-128,Nos. 96-120,s. 96-120
• Parties: Walter HAMMERMEISTER, et al., Plaintiffs and Appellants, v. NORTHERN MONTANA JOINT REFUSE DISPOSAL DISTRICT, Pondera County, Glacier County, Teton County, et al., Defendants and Respondents.
• Court: United States State Supreme Court of Montana

Page 859

925 P.2d 859

278 Mont. 464

Walter HAMMERMEISTER, et al., Plaintiffs and Appellants, v. NORTHERN MONTANA JOINT REFUSE DISPOSAL DISTRICT, Pondera County, Glacier County, Teton County, et al Defendants and Respondents.

Nos. 96-120, 96-126 and 96-128.

Supreme Court of Montana.

Submitted on Briefs Sept. 19, 1996.

Decided Oct. 22, 1996.

Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, for Plaintiffs and Appellants.

Selden S. Frisbee, Cut Bank, Mark F. Higgins, Ugrin, Alexander, Zadick & Higgins, Great Falls, Kevin C. Meek, Davis, Hatley, Haffeman & Tighe, Great Falls, for Defendants and Respondents.

LEAPHART, Justice.

Appellants Hammermeister, Reagan, William Mancoronal and Elizabeth Mancoronal, et al., appeal from the judgment of the Ninth Judicial District Court, Pondera County, in which it granted Northern Montana Joint Refuse Disposal District, Teton County, Glacier County and Pondera County, City of Conrad, City of Valier and Thomas C. Hammerbacker's (collectively NMJRDD) motion for summary judgment and denied appellants' motion for summary judgment. We affirm.

All parties agreed that there were no genuine issues of material fact and, thus, the matter was appropriate for summary judgment ruling under Rule 56, M.R.Civ.P. The undisputed facts as related by the District Court are as follows: NMJRDD was created in 1990 following several years of discussion between interested persons in several northern Montana counties and municipalities regarding disposal of refuse in light of the advent of more stringent federal regulation of land fills. The original Resolution of Intention to create NMJRDD described a land area larger than the district which was ultimately created. Notice of the original Resolution of Intention was properly given according to statute. However, no additional affirmative notice of the reduction in size was provided by the governmental entities creating the district. The reduction in size was the result of the fact that, although the resolutions passed by Glacier, Teton and Pondera Counties included the territory within Toole County, Toole County itself did not pass a resolution to create the district and thus was not included in the final refuse district. Appellants' challenge to the formation of NMJRDD is based on the lack of subsequent notice of the reduction in size of the district.

Following its creation, NMJRDD developed a roll-off site and landfill site, incurred bond indebtedness, assessed and collected fees for its services from the residents of the district, including the appellants in this matter, and was utilized by the citizens of the district as well as other entities on a contract basis. No person is subject to assessment by the district whose property was not included in the original Resolution of Intention, though persons (who were not parties to this proceeding) whose property was included in the original Resolution of Intention, are not part of the district as finally created. In other words, the notice was overly broad.

Section 7-13-212, MCA, requires that, before ordering any proposed improvements, the commissioners shall pass a resolution creating the refuse disposal district "in accordance with the resolution of intention theretofore introduced and passed by the commissioners." Appellants contend that the county commissioners did not create a refuse disposal district in accordance with the Resolution of Intention because the boundaries of the district were reduced from the boundaries set forth in the notice of intent to create.

The question presented by the cross-motions for summary judgment is whether the initial creation of NMJRDD is subject to

challenge due to the fact that the original Resolution of Intention to create NMJRDD described a land area larger than the district ultimately created. In other words, does the fact that the land area ultimately included in the NMJRDD was smaller than the area described in the original Resolution of Intention invalidate the NMJRDD?

DISCUSSION

The statutory procedure for creation of a joint refuse disposal district is set forth in Title 7, Chapter 13, part 2, MCA (1989). Pursuant to the statutory procedure, it is necessary for the county commissioners of the counties involved to adopt a Resolution of Intention to create a refuse disposal district. Such resolution is required to contain, among other things, a general description of the territory or lands of said district, giving the boundaries thereof. Section 7-13-204(2)(c), MCA. The counties of Pondera, Glacier and Teton passed resolutions of intention setting forth the requisite information. Because the proposed boundaries of the joint refuse disposal district included various municipalities, it was necessary that the commissioners of each of the three counties transmit a copy of their respective "Resolutions of Intention" to the executive head of each of the cities or towns within the proposed district in that particular county so that the resolution could be considered by the city or town council. Section 7-13-206, MCA.

Thereafter, if any of the city or town councils, by resolution, concur in the resolution of the county commissioners, the city or town council must transmit a "Resolution of Concurrence" to the county commissioners. On the other hand, if an incorporated city or town council does not concur in the resolution, then the county commissioners have no authority to include said city or town in the district. The commissioners can, nonetheless, "continue to develop the district, excluding said city or town." Section 7-13-207, MCA. Thus, the legislature, having specifically authorized the commissioners to proceed to develop the district after excluding any city or town which chooses to opt out, specifically recognized that the final boundaries of the district may well be smaller than those outlined in the initial resolution of intention.

Section 7-13-208, MCA, then requires the commissioners to give notice of the passage of the resolution of intention and resolution of concurrence, if applicable, by publishing a notice describing the general characteristics of the collection system; the proposed fees to be charged for services; designating the time and place where the commissioners will hear and pass upon protests made against the operation of the proposed district; and "stating that a description of the boundaries for the proposed district is included in the resolution on file in the county clerk's office." The statute does not require that the notice describe the boundaries of the district or lands included in the district but, rather, refers the reader of the notice to the description of the boundaries included in the resolution on file in the county clerk's office. These notices were required to be published and mailed to every person firm, or corporation having real property within the proposed district.

At any time thirty days after the date of first publication of the notice, any owner of property liable to be assessed for said services is entitled to make written protest against the proposed service or against the proposed fees. The protest is required to be in writing and delivered to the county clerk. Section 7-13-209, MCA. Under § 7-13-210, MCA, the commission is required to conduct a hearing and proceed to hear and pass upon all protests and "its decision shall be final and conclusive." Pursuant tos 7-13-212, MCA, the commissioners are deemed to have acquired jurisdiction to order improvements immediately upon the occurrence of one of the following: when no protests are delivered to the clerk within the specified time limit, when less than fifty percent of the family residential units in the proposed district protest, or when a protest shall have been overruled.

In the present case, each of the three counties determined that protests were filed by less than fifty percent of the family residential units in their respective portions of the proposed district. Accordingly, Teton Glacier, and Pondera Counties each adopted resolutions creating the joint district.

Did the District Court err in holding that appellants were estopped from challenging the formation of the refuse district some five years after its formation?

Appellants base their challenge on the fact that the refuse district as finally adopted, contained a smaller geographic area than what was originally delineated in the Notice of Intention to Create. Appellants did not file their suit challenging the creation of the refuse district until 1995. In light of the fact that the district, as of the time of the challenge, had been operating for more than five years, the District Court was correct in relying upon Henderson v. School Dist. No. 44 (1926), 75 Mont. 154, 242 P. 979, and concluding that, given the public's reliance on the district for five years, appellants were estopped from challenging the creation of the refuse district.

Henderson involved an annexation of a small Fergus County school district (# 42) to an adjacent and larger district (# 44). The annexation was accomplished in 1919 by order of the county superintendent. Validity of the annexation was not challenged until five years later in 1925. All residents within the district, including the plaintiffs, acquiesced in the annexation, took part in the school elections, sent their children to its schools and paid the taxes levied upon their property for its support and maintenance. Henderson, 242 P. at 980. The plaintiffs in Henderson argued that the...