By Marty Mayfield
KRTN Multi-Media
It began in December of 2013 when Mark and Lori Van Buskirk filed suit against the City of Raton for allowing landfill litter to blow onto the Van Buskirk’s property directly east of the landfill which was located on land south of US 64-87 and east of Raton.
The suit claims the city was negligent in its operation of the landfill by not applying sufficient cover over the working face of the landfill to prevent flowing litter. Failure to contain the litter and to operate and receive solid waste in high wind conditions which allowed litter to blow onto the Van Buskirk’s property east of the landfill.
The complaint goes on to claim the city had received notice of violation from the State of New Mexico Solid Waste Bureau for non-compliance with controlling litter. The Van Buskirk’s allowed city workers access to their property for cleanup, however over the years the litter had accumulated to an extent that it was unmanageable, and the cattle had tromped the litter down in the mud and water of a small creek causing it to become embedded in the creek bottom thus causing damage to the property.
The complaint goes on to claim that a berm the city constructed was too close to the Van Buskirk property and was incorrectly built allowing dirt to erode on to the adjoining property through the fence and has caused encroachment damage.
The Van Buskirk’s have asked for punitive damages and for the city to completely remove all litter and encroaching dirt that has eroded onto their property and to properly reclaim, reseed and reestablish the natural vegetation on any affected areas. They also ask that a retaining wall be built to keep further erosion contained within the landfill property. The award of punitive damages against the city in an amount sufficient to punish the city for their habitual, willful, and reckless conduct and to deter such conduct in the future.
The city moved to have the complaint dismissed asserting the two-year statute of limitations had passed under the Tort Claims Act which prompted Van Buskirk to amend their complaint instead of negligence theory to assert that an uncompensated taking had occurred under the theory of inverse condemnation. The uncompensated taking was based on the premise that the city was using the Van Buskirk property as a trash receptacle for the city’s trash when it allowed large amounts of litter to blow onto the Van Buskirk property. It was ruled that since the city had acquired the land from the Triangle Dot Ranch a New Mexico ranch corporation of which the Van Buskirks were a part of and not the Van Buskirks themselves they were not entitled to recover damages from the city.
After eight years of wrangling and appeals, the case has finally come to a close with the Court of Appeals affirming that the October 28, 2019, decision and order granting the city’s motion for summary judgement and dismissal of this action is valid and that the court hereby orders that this matter is dismissed with prejudice. The total cost of the lawsuit to the city came out to $477,962.
While the Van Buskirks did not receive a monetary judgement, did they accomplish their one goal of costing the city enough to punish city government to not commit this type of infraction again? Current City Manager Scott Berry noted, look at the new transfer station. The new transfer station located on Hereford Ave in south Raton was designed to prevent blowing trash and was built on city property with city property surrounding the facility in all directions.
