Pride Disposal Co. v. Valet Waste, LLC

• Decision Date: 07 August 2019
• Docket Number: A164611
• Parties: PRIDE DISPOSAL COMPANY, an Oregon corporation, Plaintiff-Appellant, v. VALET WASTE, LLC, a Delaware limited liability company, Defendant-Respondent.
• Court: Oregon Court of Appeals

298 Or.App. 751

448 P.3d 680

PRIDE DISPOSAL COMPANY, an Oregon corporation, Plaintiff-Appellant,

v.VALET WASTE, LLC, a Delaware limited liability company, Defendant-Respondent.

A164611

Court of Appeals of Oregon.

Argued and submitted May 17, 2018.

August 7, 2019

Thomas R. Rask, III, Portland, argued the cause for appellant. Also on the briefs was Kell, Alterman & Runstein, L.L.P.

Cody Hoesly, Portland, argued the cause for respondent. Also on the brief were John Dunbar and Larkins Vacura Kayser LLP.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

As the old saying goes, "[O]ne man’s rubbish may be another’s treasure." J. F. Campbell, 1 Popular Tales of the West Highlands: Orally Collected with a Translation , introduction, xi (1860). The dispute in this case involves the entitlement to collect and transport that treasure.

Plaintiff, Pride Disposal Company (Pride), has an exclusive franchise over the "collection" and "transportation" of "solid waste" in the cities of Sherwood and Tigard pursuant to the provisions of the Tigard Municipal Code (TMC) and the Sherwood Municipal Code (SMC). Defendant, Valet Waste, LLC (Valet), was hired by two apartment complexes, one in the city of Tigard and one in the city of Sherwood, to gather the residents’ garbage through a doorstep garbage service and then take it to a trash compactor that each apartment complex has on site. Pride brought a civil action against Valet, alleging that Valet’s doorstep garbage service violates Pride’s exclusive privilege to collect and transport solid waste under both the TMC and the SMC.¹ The parties filed cross-motions for summary judgment, and the trial court granted Valet’s motion for summary judgment on Pride’s claims under the TMC and the SMC, concluding that Valet’s "actions are not the type of actions either municipal code seeks to restrict." On appeal, Pride contends that the trial court erred when it granted Valet’s motion for summary judgment. For the reasons that follow, we conclude that the trial court did not err when it granted Valet’s motion for summary judgment and, accordingly, we affirm.

I. BACKGROUND²

The facts are undisputed. The cities of Sherwood and Tigard conferred an exclusive franchise over the "collection" and "transportation" of "solid waste" to Pride through the provisions of the TMC and the SMC. The Arbor Heights Apartments in Tigard (Arbor Heights) and the Sunfield Lake Apartments in Sherwood (Sunfield Lake) are located within Pride’s franchised territories.

Valet is not a franchised solid waste service provider in Tigard or Sherwood. Valet was hired by Arbor Heights and Sunfield Lake to provide a doorstep garbage service for their residents. Valet’s service occurred, with two exceptions, entirely on private property.³ The residents at those apartment complexes place their garbage into a Valet container at their doorstep. Valet employees pick up the garbage five days a week, load it into a pickup truck, and then take the garbage to a trash compactor that each apartment complex has on site.

Pride collects the trash compactors from Arbor Heights and Sunfield Lake, transports the compactors to an authorized disposal, recycling, or resource recovery facility where they are emptied, and returns the compactors to those apartment complexes.

As noted, Pride brought a civil action against Valet, alleging that Valet’s doorstep garbage service violates Pride’s exclusive franchise to provide solid waste services under the TMC and the SMC. See TMC § 11.04.020(B)(1) ("No person shall * * * "[p]rovide service * * * without having obtained a franchise from the city."); SMC § 8.20.020 (B)(1) (similar). Pride sought to enjoin Valet from performing its doorstep garbage service and sought an award of liquidated damages for Valet’s alleged violations of the TMC and the SMC. See TMC § 11.04.170(B) (authorizing $500 in liquidated damages for each violation and "injunctive relief"); SMC § 8.20.130(B) (similar).

The parties filed cross-motions for summary judgment, centering their arguments on whether Valet was providing a "service," as defined by the TMC and the SMC. See TMC § 11.04.030(N) (" ‘Service’ means the collection, transportation, storage, transfer, disposal of or resource recovery of solid waste, including solid waste management."); SMC § 8.20.030 (" ‘Service’ means the collection, transportation, storage, transfer, disposal of or resource recovery of solid waste, using the public streets of the city to provide service, and including solid waste management."). Specifically, Pride argued that "[t]he services performed by Valet involve both the ‘collection’ and the ‘transportation’ of solid waste." In response, Valet contended that it was not providing a "service" in violation of either code, because it was simply moving the garbage "on private property" to the compactors from which it is collected and transported by Pride to an authorized disposal, recycling, or resource recovery facility. Valet asserted that neither code grants Pride an exclusive franchise over "taking trash to the dumpster" on a person’s "private property."

After hearing arguments and reviewing the parties’ submissions, the trial court issued a letter opinion stating that "[b]oth parties agree there are no genuine issues of material fact to these proceedings and [the] parties are entitled to a legal ruling at the summary judgment stage." The trial court concluded that Valet’s "actions are not the type of actions either municipal code seeks to restrict," because Valet’s service does not interfere with Pride’s exclusive franchise right to collect the tenants’ garbage from the trash compactors or interfere with Pride’s right to transport the tenants’ garbage from the landlords’ private property to an authorized disposal, recycling, or resource recovery facility. Accordingly, the trial court granted Valet’s motion for summary judgment.

On appeal, Pride contends that the trial court erred in granting Valet’s motion for summary judgment, because "Valet’s actions violated the Tigard and Sherwood municipal codes." Valet responds that "the trial court was correct when it granted Valet’s motion for summary judgment on the ground that * * * ‘[Valet] does not interfere with [Pride’s] exclusive franchise right to gather and haul the apartments’ trash from private property to public disposal,’ " because " ‘Valet conducts its service almost entirely on private property’ " and "does not remove waste from the apartment complexes." Both parties now reprise their arguments about whether Valet was providing a "service," as defined by the TMC and the SMC, focusing their efforts on a discussion of what constitutes the "collection" and "transportation" of "solid waste" under the TMC and SMC.

Boiled down to its essence, the issue before us in this case is whether the code drafters intended the terms "collection" and "transportation" to have a meaning that captures the type of service offered by Valet—viz. , moving the tenants’ garbage and recycling across a landlord’s private property and placing it in containers that Pride then collects and transports to an authorized disposal, recycling, or resource recovery facility.

II. ANALYSIS

"Because the material facts are not in dispute, we review the trial court’s grant of summary judgment to determine whether defendant was entitled to judgment as a matter of law." Drake v. Mutual of Enumclaw Ins. Co. , 167 Or. App. 475, 478, 1 P.3d 1065 (2000) (citing ORCP 47 C). "The proper construction of a municipal ordinance is a question of law, which we resolve using the same rules of construction that we use to interpret statutes." City of Eugene v. Comcast of Oregon II, Inc. , 359 Or. 528, 540, 375 P.3d 446 (2016). Accordingly, "we look primarily to the ordinance’s text, context, and legislative history, although we may look also to general rules of statutory construction as helpful." Id . at 540-41, 375 P.3d 446 (internal quotation marks and brackets omitted). However, before turning to the substantive provisions of the TMC and the SMC, we pause briefly to provide some context to the exclusive franchise that Pride has over the "collection" and "transportation" of "solid waste" in Tigard and Sherwood.

As the Oregon Supreme Court observed nearly a century ago, the "[h]auling [of] garbage through the public streets, especially by such individuals * * * who did not produce it, cannot be considered as a common right" of "the citizens of the country generally," because it "is everywhere regarded as peculiarly subject to the police power of the state," and, as such, is a "special privilege[ ] which only a sovereign c[an] exercise as a matter of right." Elliott v. City of Eugene et al. , 135 Or. 108, 112-15, 294 P. 358 (1930) ; see also Spencer et al. v. City of Medford et al. , 129 Or. 333, 338, 276 P. 1114 (1929) (it "has been usually held that a city has authority, in the interest of public health and cleanliness, to regulate and provide for the disposal of garbage"). As such, "a sovereign" can confer that special privilege as an exclusive franchise because, as just noted, the privilege of hauling other people’s garbage through the public streets does "not belong to the citizens of the country generally of common right." Elliott , 135 Or. at 113-14, 294 P. 358. When the franchise conferred is an exclusive one over hauling "the entire garbage of the city through the public streets," or a designated portion thereof, it creates "a monopoly." Id . ; see also Spencer et al. , 129 Or. at 339, 276 P. 1114 ("[G]arbage is widely regarded as an actual and potential source of disease or detriment to the public health, and * * * therefore it is within the well-recognized limits of the police power, for the municipality, acting for the common good of all, either to take over itself or confine to a single person or corporation the collection, transportation through the streets and final disposition of a commodity which so easily may...