NO.

10-17-00202-CV

IN THE TENTH COURT OF APPEALS

WACO, TEXAS

CITY OF WACO,
Appellant,
v.
CITIZENS TO SAVE LAKE WACO
Appellee.
On Appeal from the 414th Judicial District
Court of McLennan County, Texas
(Cause No. 2017-290-5)

AMICI CURIAE BRIEF OF CITIZENS AGAINST HWY 84 LANDFILL AND

ALLIANCE OF MCGREGOR AIRPORT
IN SUPPORT OF AFFIRMANCE

WEISBART SPRINGER HAYES LLP

212 Lavaca Street, Suite 200
Austin, Texas 78701
[Tel.] (512) 652-5780
[Fax] (512) 682-2074

Geoffrey D. Weisbart
State Bar No. 21102645
gweisbart@wshllp.com
Sara E. Janes
State Bar No. 24056551
sjanes@wshllp.com
Danielle K. Hatchitt
State Bar No. 24079080
dhatchitt@wshllp.com

ATTORNEYS FOR AMICI CURIAE

 TABLE OF CONTENTS

Table of Contents ..................................................................................... ii

Table of Authorities ................................................................................. iii
Identification and Interest of Amici Curiae ............................................ 1
Statement of Facts ................................................................................... 2
Summary of the Argument ...................................................................... 5
Argument and Authorities ....................................................................... 7
I. There are serious, real-life and dangerous
consequences if the City is allowed to break its
promise. .................................................................................. 7
a. The expanded landfill would increase the risk
of collisions between aircraft and large birds,
endangering people in the air and on the
ground. .......................................................................... 9
b. An expanded landfill would endanger the
areas drinking water. ................................................. 12
c. An expanded landfill will endanger
schoolchildren.............................................................. 14
II. The City should be bound by its promise; the
district court was right to deny the Citys plea to the
jurisdiction............................................................................ 15
Conclusion .............................................................................................. 16
Certificate of Compliance ....................................................................... 18
Certificate of Service .............................................................................. 18

ii
 TABLE OF AUTHORITIES

Regulatory Authorities
FAA, Advisory Circular 150/5200-33B, Hazardous Wildlife
Attractants On or Near Airports (2007), available at
https://www.faa.gov/regulations_policies/advisory_circulars
/index.cfm/go/document.information/documentID/22820. ................. 11

FAA, Advisory Circular 150/5200-34-A, Construction or

Establishment of Landfills near Public Airports (2006),
available at
https://www.faa.gov/regulations_policies/advisory_circulars
/index.cfm/go/document.information/documentID/2209. ............... 9, 10

Other Sources
Christina Bauert, McGregor Airport opposed expansion of
Waco landfill , CENTEXPROUD.COM, June 5, 2017,
http://www.centexproud.com/news/local/mcgregor-airport-
opposes-expansion-of-waco-landfill/732495568. .................................. 9

City-Data.com, Waco Regional Airport Wildlife Incidents,

http://www.city-data.com/wildlife/Waco-Regional-Airport-
Waco-Texas.html (last visited Sept. 28, 2017). .................................. 12

Eric Thayer, Sully Sullenberger Remembers the Miracle on

the Hudson, NEWSWEEK, July 11, 2015,
http://www.newsweek.com/miracle-hudson-343489. ........................... 9

J.B. Smith, Hurricane Harvey could redefine risk models for

extreme floods in Waco area, WACO TRIBUNE HERALD, Sept.
23, 2017,
http://www.wacotrib.com/news/city_of_waco/hurricane-
harvey-could-redefine-risk-models-for-extreme-floods-
in/article_c30935e2-a74f-533a-89b3-5a17ee4be3ea.html .................. 13

J.B. Smith, Plan for new city landfill on Old Lorena Road
worries neighbors, WACO TRIBUNE HERALD, Aug. 20, 2016,
http://www.wacotrib.com/news/roads/plan-for-new-city-

iii
 landfill-on-old-lorena-road-worries/article_7c3f604b-38f2-
5d4f-a1a2-45eb89c4d23d.html............................................................ 14

Merriam-Webster Dictionary Online, available at

www.merriam-webster.com (last accessed September 12,
2017). ................................................................................................... 16

Posting of Citizens Against the Hwy. 84 Landfill, Facebook, to

https://www.facebook.com/citizensagainst84landfill/photos/
pcb.391492371252881/391492071252911/?type=3&theater
(last visited September 29, 2017). ...................................................... 13

TCEQ Executive Summary Enforcement Matter, No. 2004-

0191-MSW-E, Municipal Solid Waste Permit No. 948-A,
Case No. 12691 (2004), available at
http://www.tceq.texas.gov/assets/public/comm_exec/agenda
s/comm/backup/Agendas/2008/1-30-2008/0191MSW.pdf. ............ 12, 13

iv
 IDENTIFICATION AND INTEREST OF AMICI CURIAE

Citizens Against the HWY 84 Landfill (CAH8L) is a group of

taxpayers, mostly in the City of Waco, who came together in February

2017 for the sole purpose of fighting the City of Wacos attempt to

expand the landfill along Highway 84 and Speegleville/Old Lorena

Road. The group has nearly 1900 members. It receives financial

contributions from individuals and businesses. Its supporters include

the Midway ISD School Board, the Texas Association of Realtors, the

Waco Association of Realtors, the Heart of Texas Homebuilders, the

Alliance for the McGregor Airport (which specifically joins as an amicus

curiae in this brief, see below), the West HWY 84 Neighborhood

Association, the Twin Rivers Homeowners Association, the Riverside

Homeowners Association, the Badger Ranch Homeowners Association,

the Sun West Homeowners Group, the Hidden Valley Neighborhood,

the Meadowland Estates Neighborhood, McLennan County

Commissioner Ben Perry, and Waco City Councilman Jim Holmes.

The Alliance of McGregor Airport (AMA) is composed of pilots that

frequently use the McGregor Executive Airport. Its purpose is to

ensure the continued safety of McGregor aircraft operators and

1
passengers, as well as the McGregor and Waco community surrounding

the airport. The mission of AMAs members is to alert the public, city

management, the Federal Aviation Administration, TxDOTs Aviation

Planning Division, and other governmental entities of airport safety

issues that may arise, and to provide an organization for pilots to

advocate on behalf of the airport.

CAH8L and AMA (together Amici) file this brief in support of

Appellee and urge this Court to affirm the district courts decision. The

fee for the preparation of this brief is being paid by CAH8L.

STATEMENT OF FACTS

For purposes of this brief, Amici incorporate by reference, and

substantially adopt, the Statement of Facts provided by Appellee

Citizens to Save Lake Waco in its Response Brief filed September 14,

2017. Additional facts relied on by Amici are provided in the timeline

below.

1987: City applies for amendment to existing permit to expand a

municipal landfill. CR.421.

1991: After notice and public hearing, the Texas Department of

Health approves the permit. CR.421. Ms. Wanda Glaze, an

2
 affected citizen, files a motion for rehearing, which is overruled.

CR.463-72.

1992: Ms. Glaze files a lawsuit against the Texas Department of

Health, the Texas Water Commission, and the City, seeking

review of the decision to issue a permit to the City for

construction of the expanded landfill. CR.463-72. Several

months later, Ms. Glaze and the City reach a settlement

agreement under which Ms. Glaze agrees to dismiss her suit and

the City promises not [to] expand the 948-A [landfill] beyond its

current boundaries. CR.436. The City, Ms. Glaze, and Citizens

to Save Lake Waco (CSLW) (Appellee and successor in interest to

Ms. Glaze) publish a press release in which the City again

promises it would not seek to expand the site beyond its current

boundaries. CR.432.

2005: After buying 159 acres adjacent to the landfill, the City

issues press releases inviting the public to meetings to [l]earn

about plans to expand our Landfill. CR.25. The City also

produces a full-color brochure that references expanding the

landfill 17 times. CR.27-34. After CSLW reminds the City about

3
 its 1992 Settlement Agreement, the City (temporarily) abandons

its plans to expand the landfill. CR.423.

2011: The City buys another 132 acres directly adjacent to the

159 acres it bought earlier. CR.423-34.

2016: The City holds meetings with select citizens who live near

the landfill to discuss a proposed expansion of the landfill. When

CSLW explains that this expansion would violate the 1992

Settlement Agreement, the City disagrees, saying the expansion

is not an expansion but a new landfill. CR.9.

2017: The City claims for the first time that it was immune in

1992 and therefore cannot be sued on the Settlement Agreement.

CR.81-84.

1992-2017: More than 1500 homes are built in the area around

the landfill, based on the expectation that the City would keep its

promise, not expand the landfill, and instead convert it into a

park. CR.25.

4
 SUMMARY OF THE ARGUMENT

Twenty-five years ago, recognizing that the landfill expansion

proposed by the City of Waco and approved by the State agency then in

charge of such matters was in jeopardy, the City of Waco entered into a

settlement agreement that would allow it to expand the landfill.

Among many other things, the City promised Wanda Glaze, who was

fighting on her own behalf and for other concerned and affected citizens,

that it would never expand the landfill. In the settlement agreement,

the City specifically promised it would not expand the 948-A [landfill]

beyond its current boundaries. CR.436. The City also issued a press

release in which it assured its citizens that the City would not seek to

expand the site beyond its current boundaries. CR.55. In exchange for

this promise, Ms. Glaze dismissed her lawsuit, allowing the City to

move forward with the expansion.

Now, the City wants to ignore that promise, claiming it never

meant anything because the City was supposedly cloaked with

immunity. This argument fails for a host of reasons, including that (i)

immunity flows from the State of Texas, the State explicitly waived

immunity from suit for the State agency responsible for approving the

5
landfills expansion, and the City would not have been immune from the

effects of an adverse decision against the State agency; and (ii) citizens

have been relying on the Citys promise for 25 years, creating a case for

waiver by conduct if ever there were one. Amici will briefly address the

Citys flawed immunity argument below, along with the Citys equally

flawed (but more absurd) argument that the landfill expansion is not

actually an expansion.

The primary purpose of this brief, however, is to show the Court

the significant, dangerous real-world consequences that would result

from allowing the City to break its promise. The expansion of the

current landfill threatens (i) a dangerous risk of aircraft collisions with

birds (i.e., bird strikes) due to the landfills close proximity to the

McGregor Executive Airport and Waco Regional Airport; (ii) the

contamination of Wacos drinking water in an emergency flood

situation; and (iii) the safety of children at a nearby middle school due

to the inevitable increase in traffic from large trucks traveling to and

from the landfill.

This is not a Not in My Backyard situation. There is already a

landfill in these citizens backyards. There has been for more than 25

6
years, and the City promised that it would not expand it. This is about

the very real hazards that an expanded landfill will pose to the citizens

of Waco and its surrounding communities. The City should be held to

its promise and required to look elsewhere for a safer site.

ARGUMENT AND AUTHORITIES

I. There are serious, real-life and dangerous consequences if

the City is allowed to break its promise.

To illustrate the practical problems of the expanded landfill, Amici

ask the Court to consider these facts. The expanded landfill will be:

One mile from a school zoneeven though the expanded

landfill will dramatically increase traffic, including the

presence of large trucks, in the area.

Approximately 2 miles from the McGregor Executive Airport

and directly in the flight path of the Waco Regional Airports

primary runway and approacheven though it is common

knowledge that locating landfills in proximity to airports

increases the risks of dangerous collisions between large

birds and aircraft.

7
 Situated on top of Cloice Creek, which feeds directly into the

South Bosque, which runs straight into Lake Wacothe

source of drinking water for area citizens.

These three safety concerns are not the only problems presented by the

landfill. As but just a few more examples, the expanded landfill would

be located less than one mile from 600 homeseven though the average

city Wacos size places landfills four miles from the nearest

neighborhoodand in an area that is predicted to be a major focus of

population growth over the next 40 years. The expanded landfill would

also compromise existing and promised green space: it would be directly

adjacent to the Cotton Belt Trail, a public hike and bike trail

constructed by the City at a cost of over $2.5 million, and it would

immediately border the current landfill site, which the City had

promised would be converted into a park. For purposes of this brief,

however, Amici will focus on the three safety concerns in the bulleted

list above.

8
 a. The expanded landfill would increase the risk of
collisions between aircraft and large birds,
endangering people in the air and on the ground.

The Citys proposed landfill expansion poses a grave danger to the

community due to the risk of aircraft collisions with wildlife on or near

the proposed landfill site. 1 It is common knowledge that a landfill is an

attractant to hazardous wildlife, specifically large birds. Thus, the

Federal Aviation Administration (FAA) recognized in Advisory Circular

No. 150/5200-34A that locating landfills in proximity to airports

increases the risk of collisions between birds and aircraft:

[A landfill] sited near an airport poses a potential hazard to

aircraft operations because such a waste facility attracts
birds. Statistics support the fact that bird strikes pose a real
danger to aircraft. An estimated 87 percent of the collisions
between wildlife and civil aircraft occurred on or near
airports when aircraft are below 2,000 feet above ground
level. Collisions with wildlife at these altitudes are

1 The dramatic emergency landing of US Airways Flight 1549 by Captain

Sullenberger on the Hudson River was due to geese strikes. See Eric Thayer, Sully
Sullenberger Remembers the Miracle on the Hudson, NEWSWEEK, July 11, 2015,
http://www.newsweek.com/miracle-hudson-343489.

The current landfill, which is supposed to be closed soon, already attracts a number
of large birds. See Christina Bauert, McGregor Airport opposed expansion of Waco
landfill, CENTEXPROUD.COM, June 5, 2017,
http://www.centexproud.com/news/local/mcgregor-airport-opposes-expansion-of-
waco-landfill/732495568. (In one frame of the report, over 25 turkey vultures can be
seen behind a landfill bulldozer which appears to be a normal occurrence.)

9
 especially dangerous as aircraft pilots have minimal time to
recover from such emergencies. 2

To address this safety concern, the FAA issued Advisory Circular

No. 150/5200-33B, Hazardous Wildlife Attractions On or Near Airports,

to provide airport operators and aviation planners with guidance on

minimizing wildlife attractants:

Improved reporting, studies, documentation, and statistics

clearly show that aircraft collisions with birds and other
wildlife are a serious economic and public safety problem. . . .
During the past century, wildlife-aircraft strikes have
resulted in the loss of hundreds of lives worldwide, as well as
billions of dollars in aircraft damage. Hazardous wildlife
attractants on and near airports can jeopardize future
airport expansion, making proper community land-use
planning essential. 3

Airport operators that have accepted federal funding like the

McGregor airport must comply with the standards prescribed by the

FAA in advisory circulars. Significantly, failure to comply with the

FAAs regulations may lead to the loss of federal funding for the

McGregor airport. See AC 33B, Section 4-3(a).

2 FAA, Advisory Circular 150/5200-34-A, Construction or Establishment of Landfills

near Public Airports (2006), available at
https://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.i
nformation/documentID/2209.
3 FAA, Advisory Circular 150/5200-33B, Hazardous Wildlife Attractants On or Near

Airports (2007), available at

https://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.i
nformation/documentID/22820.

10
 If a landfill could cause hazardous wildlife movement into or

across the approach or departure airspace of an airport, the FAA

prescribes a distance of at least 5 miles between the farthest edge of the

airport and the landfill. See AC 33B Section 1-4. Wacos proposed

landfillwhich is located approximately two miles from the McGregor

airportis sited directly in the traffic pattern of two airport runways:

(i) Runway 17/35 the most prevalent runway used by the airport, and

(ii) Runway 22/04 used by turbine powered aircraft during crosswind

operations. There is no question that the current landfill attracts birds

that affect the safety of flight, and any proposed expansion will only

bring the birds closer to the approach and departure airspace of the

McGregor airport. Additionally, the proximity of the Citys proposed

landfill site will deter future development of the McGregor airport,

depressing its economic benefit to the surrounding community.

The proposed landfill site is also located directly in the traffic

pattern of Waco Regional Airports Runway 1 the primary runway

used when the wind is out of the north. Thus, aircraft landing at both

the McGregor and Waco airports will be forced to fly directly over the

proposed landfill site at very low altitudes (1,500 feet above the ground

11
or less), creating a dangerous risk of aircraft collisions with large birds.

The Waco area has already seen a steady increase in reported bird

strikes, and any expansion of the current landfill is likely to increase

this dangerous trend. 4 Expanding the landfill directly under the

approach to Runway 1 at Waco Regional is dangerous, and risks the

lives and property of the citizens of Waco, the traveling public, and the

airlines and pilots that serve and use Waco Regional Airport. In light of

the number of houses surrounding the landfill and close to the airports,

the catastrophic results of bird strikes would only be magnified.

b. An expanded landfill would endanger the areas

drinking water.

The City of Waco has struggled with the illegal contamination of

waste water releases at the current landfill site, resulting in stiff

penalties for violating the Texas Commission on Environmental

Qualitys (TCEQ) standards.5 In fact, TCEQ has rated Wacos current

4 Based on data available up to 2015, reported bird strikes at Wacos Regional

Airport more than doubled in 2014 and 2015. See City-Data.com, Waco Regional
Airport Wildlife Incidents, http://www.city-data.com/wildlife/Waco-Regional-Airport-
Waco-Texas.html (last visited Sept. 28, 2017).
5 For example, in 2004 TCEQ fined Waco for failure to prevent unauthorized

discharge of contaminated water into Lake Waco. See TCEQ Executive Summary
Enforcement Matter, No. 2004-0191-MSW-E, Municipal Solid Waste Permit No.
948-A, Case No. 12691 (2004), available at

12
landfill site as Poor in its history of compliance with water safety and

anti-contamination practices. See sources cited in note 5. It follows

that the construction of an expanded landfill site in the very same

location (i.e., in close proximity to Lake Waco) poses a heightened threat

to the contamination of Wacos drinking water.

Further, CAH8L recently discovered that a flood easement

purchased by the Army Corps of Engineers in 1961 (the Waco Reservoir

Easement), which allows Lake Waco to be flooded up to 503 feet above

sea level, overlaps the Citys expanded landfill site. And a portion of

the proposed expanded landfill site is overlapped by the FEMA 100-year

flood plain. Given that Texas is currently experiencing the effects of a

500-year flood in other parts of the state, the landfills overlap of the

Waco Reservoir Easement risks dangerous contamination of the publics

drinking water in an emergency flood situation. 6 Thus, the proximity of

the expanded landfills location to Lake Waco and Wacos reservoir

http://www.tceq.texas.gov/assets/public/comm_exec/agendas/comm/backup/Agendas/
2008/1-30-2008/0191MSW.pdf.
6 See J.B. Smith, Hurricane Harvey could redefine risk models for extreme floods in

Waco area, WACO TRIBUNE HERALD, Sept. 23, 2017,

http://www.wacotrib.com/news/city_of_waco/hurricane-harvey-could-redefine-risk-
models-for-extreme-floods-in/article_c30935e2-a74f-533a-89b3-5a17ee4be3ea.html;
see also Posting of Citizens Against the Hwy. 84 Landfill, Facebook, to
https://www.facebook.com/citizensagainst84landfill/photos/pcb.391492371252881/39
1492071252911/?type=3&theater (last visited September 29, 2017).

13
easements should immediately disqualify the site from consideration by

the City, as it poses yet another serious threat to the publics safety.

c. An expanded landfill will endanger schoolchildren.

River Valley Intermediate School, which is part of the Midway

Independent School District and has more than 650 students, sits on

Speegleville Road. Until fairly recently, there was no school zone

designation. Given the volume of traffic and the number of school buses

and families that use the road related to school business, the absence of

a school zone was a real safety concern. Mothers of students in Midway

ISD worked tirelessly with the City to get the school zone implemented.

The new landfill is only one mile from the school zone. It is

expected to significantly increase the traffic through the intersection of

Speegleville Road and HWY 84 (which is only one-half mile from the

school zone). On a typical weekday, 500 trucks visit the existing

landfill. 7 Needless to say, parents and the Midway Independent School

District are quite concerned about the dangers from this dramatic

increase in traffic so close to the school.

7 See J.B. Smith, Plan for new city landfill on Old Lorena Road worries neighbors,
WACO TRIBUNE HERALD, Aug. 20, 2016, http://www.wacotrib.com/news/roads/plan-
for-new-city-landfill-on-old-lorena-road-worries/article_7c3f604b-38f2-5d4f-a1a2-
45eb89c4d23d.html.

14
II. The City should be bound by its promise; the district court
was right to deny the Citys plea to the jurisdiction.

For all the reasons expressed by Appellee Citizens to Save Lake

Waco, the City was not immune in the 1992 proceedings, and it is not

immune now. CAH8L will leave the legal arguments to the parties, but

it is worth addressing a practical point that flows from the legal points.

An adverse judgment in the 1992 lawsuit would have been legally

binding on the City. And an adverse judgment would have prevented

the City from expanding the landfill. Knowing these facts, the City

chose to avoid the risk of an adverse judgment and settle with Ms.

Glaze.

Even now, the City does not argue that it would somehow have

been immune from the effects of an adverse judgment in 1992. Indeed,

such an argument would be absurd. There is no question that reversal

of the agencys decision to issue an amended permit for the City to

expand the landfill back in 1992 would have prevented the City from

expanding the landfill in the first place. So, why should a settlement of

that lawsuit allow the City to avoid the consequences of the 1992 case

when it would have been bound by the result, absent a settlement?

15
 The Citys arguments asserting immunity completely ignore that

the States waiver of immunity for the agencieswhich the City

concedeshad consequences for the City, too. The City avoided those

consequences by settling with Ms. Glaze. It cannot now avoid that

settlement agreement.

The Citys linguistic cartwheelsthe proposed expansion is not an

expansionsuggest that, at least on some level, the City must know

that it is not immune. In promotional materials in 2005, the City itself

described the new landfill as an expansionbecause thats what it is.

CR.27-34. The plain-language definition of expandand the only one

Ms. Glaze would have been likely to intendis to open up or to

increase the extent, number, volume, or scope of. Merriam-Webster

Dictionary Online, available at www.merriam-webster.com (last

accessed September 12, 2017). The Citys proposal for a new landfill

is directly adjacent to the existing landfill and will rely on the existing

landfills infrastructure. That is an expansion if there ever was one.

CONCLUSION

Amici ask the Court to affirm the judgment of the district court.

16
 Respectfully Submitted,

WEISBART SPRINGER HAYES LLP

212 Lavaca Street, Suite 200
Austin, Texas 78701
512.652.5780
512.682.2074 fax

By:/s/ Geoffrey D. Weisbart

Geoffrey D. Weisbart
State Bar No. 21102645
gweisbart@wshllp.com
Sara E. Janes
State Bar No. 24056551
sjanes@wshllp.com
Nicole LeFave
State Bar No. 24085432
nlefave@wshllp.com
Danielle K. Hatchitt
State Bar No. 24079080
dhatchitt@wshllp.com

ATTORNEYS FOR CITIZENS

AGAINST HWY 84 LANDFILL

17
 CERTIFICATE OF COMPLIANCE

With Type-Volume Limitation and Typeface Requirements

This brief complies with the type-volume limitation of TEX. R.

APP. P. 9.4(i)(2)(B) because this brief contains 3,101 words, excluding
the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).

This brief complies with the typeface requirements of TEX. R. APP.

P. 9.4(e) because this brief has been prepared in a proportionally spaced
typeface using Microsoft Word for Windows, in Century font 14-point
type face.

/s/ Geoffrey D. Weisbart

Geoffrey D. Weisbart

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

document has been served upon counsel of record for the parties via the
Courts electronic filing system on the 29th day of September, 2017.

/s/ Geoffrey D. Weisbart

Geoffrey D. Weisbart