Ventenbergs v. City of Seattle

Decision Date21 February 2008
Docket NumberNo. 76954-1.,76954-1.
Citation163 Wash.2d 92,178 P.3d 960
PartiesJosef VENTENBERGS, Kendall Trucking, Inc., a Washington Corporation, Ronald Haider, and Haider Construction, Inc., a Washington Corporation, Petitioners, v. The CITY OF SEATTLE, a Municipal Corporation, Seattle Public Utilities, and Chuck Clarke, in his official capacity as Director of Seattle Public Utilities, Waste Management of Washington, Inc., d/b/a Waste Management of Seattle, a Delaware Corporation, and Rabanco, Ltd., a Washington Corporation, Respondents.
CourtWashington Supreme Court

William R. Maurer, Michael E. Bindas, Institute for Justice/WA State Chapter, Seattle, WA, for Petitioners.

Gregory Colin Narver, City Hall, William Howard Patton, Foster Pepper PLLC, Suzanne Lieberman Smith, Seattle City Attorneys Office, Jessica L. Goldman, Polly L. McNeill, Summit Law Group PLLC, Andrew Michael Kenefick, Waste Management Inc./Legal Dept., David Welles Wiley, Attorney at Law, Dana Andrew Ferestien, Williams Kastner & Gibbs, Seattle, WA, for Respondents.

James K. Sells, Ryan Sells Uptegraft Inc. PS, Silverdale, WA, Amicus Curiae on behalf of Washington Refuse and Recycle Corporation.

Timothy M. Harris, Olympia, WA, Amicus Curiae on behalf of Building Industry Association of Washington.

BRIDGE, J.P.T.*

¶ 1 Since 1961, the Washington Utilities and Transportation Commission (WUTC) has regulated solid waste collection. However, pursuant to statute, the WUTC's jurisdiction over a solid waste collection company ends when that company contracts directly with a city. In the early 1990s the City of Seattle (City) decided to contract with solid waste handlers directly, thus ending WUTC's jurisdiction over the companies with which the City contracted. When the City decided to enter into direct contracts, only Rabanco and Waste Management were legally operating (i.e., they were in compliance with existing WUTC regulations) within the City. However, smaller companies, including Kendall Trucking (owned by petitioner Josef Ventenbergs and utilized by petitioner Ronald Haider), were providing collection services for construction, demolition, and land clearing waste (CDL), a specific type of solid waste. The City chose to contract with Rabanco and Waste Management to provide collection of "City's Waste" and CDL within Seattle. When the City learned that other collection companies were operating illegally, it enacted an ordinance establishing that CDL falls within the definition of "City's Waste," and thus could be collected only by Rabanco or Waste Management. We must now decide whether the City's code provisions restricting CDL collection to Rabanco and Waste Management impermissibly infringe upon the rights of Ventenbergs and Haider. We find that they do not and affirm the Court of Appeals.

I Facts and Procedural History

¶ 2 Since 1961, the WUTC has regulated solid waste collection.1 A company wishing to haul solid waste for profit must either obtain a certificate of necessity and convenience from the WUTC or enter into a contract with a municipality to provide waste collection services for that municipality. RCW 81.77.040 states, in relevant part, that

[n]o solid waste collection company shall hereafter operate for the hauling of solid waste for compensation without first having obtained from the commission a certificate declaring that public convenience and necessity require such operation.

RCW 81.77.020 exempts from this requirement any company operating under a contract with a city or town. It states:

No person, his lessees, receivers, or trustees, shall engage in the business of operating as a solid waste collection company in this state, except in accordance with the provisions of this chapter: PROVIDED, That the provisions of this chapter shall not apply to the operations of any solid waste collection company under a contract of solid waste disposal with any city or town, nor to any city or town which itself undertakes the disposal of solid waste.

RCW 81.77.040 grandfathered in all currently operating solid waste collection companies, granting them certificates without requiring compliance with the provisions of the chapter. When the WUTC scheme was enacted in 1961, 10 solid waste collection companies were operating in the City. Over the course of the next 40 years, due to a series of acquisitions and consolidations, Rabanco and Waste Management gained the exclusive rights to collect commercial waste within Seattle. Only these two companies possessed the requisite certificates of public convenience and necessity from the WUTC. However, due perhaps to a lack of enforcement of the WUTC regulations, numerous other small waste-collection businesses operated within the City at this time.

¶ 3 Upon the closure of its two landfills in the 1980s (and their declaration as superfund sites), the City decided to confront its solid waste problem by emphasizing recycling and environmental responsibility. To that end, in 1989 the City entered into residential solid waste collection contracts that provided for separate recycling collection and separate yard waste collection. To address the problem of the remaining solid waste, the City sought to enter a long-haul contract with a company that would transport waste to arid eastern Washington or Oregon. Seattle required that the landfills to which the waste would be taken comply with the more strict requirements of landfills in "wet weather" areas, thus providing greater environmental protection. In 1991, the City entered into such a contract with Waste Management, which took all of Seattle's solid waste to a landfill in Gillam County, Oregon.

¶ 4 Then in 1992, the City began considering entering into contracts for commercial solid waste collection for the purposes of (1) reducing rates to commercial generators of solid waste and (2) promoting recycling in the commercial sector. When the United States Supreme Court issued its decision in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994), a third objective arose: ensuring that the City could continue to dispose of its waste at the environmentally sound Gillam County landfill. In Carbone, the Court held that where a city did not have a municipal system of garbage collection but instead relied on private companies operating under individual contracts with customers, the city could not insist upon the collection companies taking the waste to its own transfer stations. See Carbone, 511 U.S. at 386, 114 S.Ct. 1677 (finding that by requiring solid waste to be processed at a designated transfer station before leaving the city, the city violated the commerce clause); see also id. at 394, 114 S.Ct. 1677 ("State and local governments may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities."). Thus, the City was concerned that if Waste Management decided to take the waste to a different disposal site, the City would have no recourse.

¶ 5 In 2001, after years of negotiations, the City finally entered into contracts with Rabanco and Waste Management for the collection of commercial solid waste within the City. Under the terms of the contracts, each company was responsible for collecting commercial solid waste in its respective zone. Additionally, each company was to exclusively provide for collection of CDL city-wide, without any restriction to a particular zone (thus giving potential customers the option of choosing which company to hire and requiring Rabanco and Waste Management to compete with each other to provide this service). The contracts specified that Rabanco and Waste Management would take commercial waste to specific transfer stations in the City and that the City reserved the right to direct disposal of CDL.

¶ 6 Under Seattle Municipal Code (SMC) 21.36.030, it is unlawful for anyone to haul "City's Waste" through the streets of Seattle, although that provision does provide for certain exceptions. One of these exceptions is for "[t]he City's solid waste contractors." SMC 21.36.030(C). However, the definition of "City's Waste" at the time that the City entered into the contracts with Rabanco and Waste Management expressly excluded CDL: "`City's Waste' means all residential and nonresidential solid waste generated within the City, excluding Unacceptable Waste, Special Waste, Construction, Demolition and Landclearing Waste, and materials destined for recycling."2 Former SMC 21.36.012(5) (2002) (emphasis added).

¶ 9 On May 22, 2002, Rabanco contacted the City to alert it to the fact that its profits had been reduced by approximately 40 percent, due apparently to unlicensed haulers operating in the city. Rabanco requested that the City honor its obligations under the contract and enforce the exclusivity provision. On October 7, 2002, the City enacted ordinance 120947, which removed CDL from the list of types of waste excluded from the definition of "City's Waste" in SMC 21.36.012.3

¶ 8 Josef Ventenbergs had started Kendall Trucking, Inc., in 1994. His business provided for collection of CDL, which involved providing containers for the waste and then hauling those filled containers to a transfer station. He attempted to obtain all of the proper licensing but states that he was never aware of the certificate requirement of RCW 81.77.040. Thus, although Ventenbergs maintained a business license from the City, he never had the required WUTC certificate. One of his best customers was Ronald Haider, a contractor who does primarily residential construction. Haider had always used Kendall Trucking to haul his construction waste, as he felt this service more suited his small business needs than did Rabanco and Waste Management.

¶ 9 On February 26, 2003, Ventenbergs received a letter from Seattle Public Utilities (SPU) stating that under SMC 21.36.030 only Rabanco and Waste Management could collect CDL....

To continue reading

Request your trial
6 cases
  • Certification from the U.S. Dist. Court for the W. Dist. of Wash. in Larry C. Ockletree v. Franciscan Health Sys., Corp.
    • United States
    • United States State Supreme Court of Washington
    • February 6, 2014
    ......Christopher L. Johnson, Karen R. Glickstein, Polsinelli PC, Kansas City, MO, Sheryl D.J. Willert, Mary H. Spillane, Williams Kastner & Gibbs, Seattle, WA, for Defendants. ...Legion, 164 Wash.2d at 606–08, 192 P.3d 306;         [317 P.3d 1022] Ventenbergs v. City of Seattle, 163 Wash.2d 92, 102–04, 178 P.3d 960 (2008).         ¶ 37 The lead ......
  • Martinez-Cuevas v. Deruyter Bros. Dairy, Inc.
    • United States
    • United States State Supreme Court of Washington
    • November 5, 2020
    ......Ste. 1200, Seattle, WA, 98104-1798, for Petitioners. John Ray Nelson, Foster Garvey PC, 618 W. Riverside Ave. Ste. ...In Grant County Fire Protection District No. 5 v. City of Moses Lake , we recognized that article I, section 12 is more protective than the federal equal ... See, e.g. , Grant County , 150 Wash.2d at 814, 83 P.3d 419 ; Ventenbergs v. City of Seattle , 163 Wash.2d 92, 102-04, 178 P.3d 960 (2008). If it does encroach on such a ......
  • Woods v. Seattle's Union Gospel Mission
    • United States
    • United States State Supreme Court of Washington
    • March 4, 2021
    ...state citizenship, this constitutional inquiry ends. See, e.g. , Grant , 150 Wash.2d at 814, 83 P.3d 419 ; Ventenbergs v. City of Seattle , 163 Wash.2d 92, 102-05, 178 P.3d 960 (2008) (determining that while the constitutional inquiry under article I, section 12 must end because the right a......
  • In re Detention of Kistenmacher
    • United States
    • United States State Supreme Court of Washington
    • February 21, 2008
    .......         Melanie Tratnik, Attorney Generals Office/CJ Division, Seattle, WA, for Respondent. .         CHAMBERS, J. . .         ¶ 1 The Washington ... 178 P.3d 954 . remedy. Cf. id. at 164, 804 P.2d 566; City of Spokane v. Kruger, 116 Wash.2d 135, 137, 146, 803 P.2d 305 (1991). .         ¶ 23 But ......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT