Clackamas County has approved the amendment of an ordinance that could allow garbage ratepayers to pursue a legal challenge against Metro alleging the regional government isn't passing on savings in its solid waste fees to its residential customers.
County commissioners heard arguments for and against the proposed ordinance change Thursday, April 15, before voting 5-0 to approve the amendment. The amendment will require the county pass on any reduction in Metro's per-ton solid waste rate fee, or "tip fee," to customers of residential hauling franchises.
The issue was sparked earlier this year when John DiLorenzo — the attorney representing Clackamas County residents David Hoover and Thomas Riley in a lawsuit against Metro — approached the county to look at changing the ordinance regarding how the county sets its fees to allow their lawsuit to have legal standing. DiLorenzo's initial attempt to bring Metro to heel on waste rates was thrown out by a Clackamas County judge back in March.
With this change, DiLorenzo and his clients could potentially return to court and allege that Metro is in violation of its charter for charging the same rate for both "wet" and "dry" waste disposal — dry waste meaning construction debris — at its regional transfer stations. According to DiLorenzo's assertion, because Metro doesn't distinguish fees for dry and wet waste, residential customers like his clients are subsidizing the disposal of construction waste for contractors in the region.
Metro vehemently denies this allegation, and Metro Senior Attorney Shane Abma — former Milwaukie city councilor and Clackamas County resident — was present Thursday to argue that the county's proposed ordinance change would have a negative effect on customer rates due to this "frivolous" legal challenge.
"The plaintiffs allege, in this case, that Metro provides distinct wet and dry waste disposal services. They argue that we charge accordingly. We disagree that we provide distinct services," Abma said. "Second, despite what Mr. DiLorenzo has implied in previous testimony, Metro has never stated that it cannot be sued or challenged over its rates. What Metro argued to the court, in this case, is only that these particular plaintiffs could not sue Metro because they lacked standing. Judge Norby agreed and dismissed the case."
Abma said that the ordinance doesn't give the board any authority that it doesn't already have, and county staff clarified in a meeting earlier this month that twice in the past two decades the county kept rates flat for residential garbage customers when Metro lowered its fee.
"This ordinance is designed for one reason only, and that is to help Mr. DiLorenzo keep suing Metro," Abma said. "We have already spent thousands of dollars to defend this lawsuit. We strongly believe we will prevail in this legal issue if we are sued again, but it's going to cost thousands more dollars to keep defending them, and that's unfortunate."
"Your ordinance will give ratepayers, your residents, standing to question whether the tipping fees violate (Metro's) charter," DiLorenzo told the board. "You have the power to make that happen as a policy matter, and I submit that is good policy."
County Chair Tootie Smith said that it is not the job of county commissioners to determine whether Metro is overcharging or not, rather it's within the purview of the court. But Smith said she recognized that without the board's decision, the court wouldn't have the legal basis to take on that determination in this specific matter, and she therefore supported the amendment to the county's ordinance.
"There seems to be some evidence that they are overcharging," Smith said. "Also, does the public realize that Metro has used their tax dollars to pay for attorneys to tell a judge that it's none of your business if you don't get the services you're paying for? And I don't like that out of any type of government. I certainly wouldn't tolerate it out of Clackamas County government, why would I tolerate it from Metro?"
Following board approval, Metro Councilor Christine Lewis — who represents the largest swath of Clackamas County within the Metro boundary — released a statement saying that the board's decision puts the interest of a "Portland attorney and his corporate clients" ahead of the interests of county ratepayers and the environment.
"Sadly, that's not a surprise. Metro's rates are as low as possible to maintain the level of service expected by customers. The rates are reviewed by an external third party and keep our garbage system running efficiently," Lewis wrote. "There is no scenario here in which a lawsuit lowers rates. The unlikely event of a successful lawsuit could actually raise costs for the average ratepayer, and increase delays at our transfer stations, harming contractors, homebuilders and average consumers."
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