Sometime between 1965 and 1980, someone buried literally tons of tires, toilets, rebar, water heaters, car parts, sewer pipes, concrete slabs, refrigerators, power transformers and asphalt beneath an abandoned lot along 800 North in Orem.

The property was once used as an Orem public works facility before city officials sold the land to Northgate Village Development.

The company then spent $3 million clearing 20,000 dump truck loads of debris from nearly 55 feet underground — that’s like excavating a five-story building filled with garbage.

Right now, there are several businesses and parking lots built on the 28-acre property, including Winco Foods, Broadview University and four fast-food restaurants.

But behind the scenes is a long, drawn-out legal battle between Orem city and the development company about who left the garbage and who should pay for cleaning it up.

The start of the lawsuit

Developer Bill Fairbanks said he lost “years and years of relationships” with city employees after he bought the 800 North plot of land.

He and his team dug just 2 feet into the dirt before they started finding garbage. The further down they went into the ground, the bigger the pieces of debris they found.

“We ran into a literal junkyard,” Fairbanks said.

His biggest concern was that a city environmental report provided in the buyer contract did not give any indication of what was buried.

The contract also stated Orem city would help pay to remove certain garbage. But when he confronted then-Mayor Jerry Washburn along with city attorneys and managers, Fairbanks remembered the mayor saying, “This is going to be solved by a neutral party.”

“They were looking down in the hole like you would look down in the Grand Canyon,” Fairbanks said. “The promises they had made about helping us or take care of things, that was the end of it.”

He believes city officials used the plot of land as an illegal dumping site: removing the sand in the area to use in city projects and filling the hole with rubble.

In 2009, he hired an attorney and filed a lawsuit against the city for breaking the contract agreement. In a summary judgment in 2012, Judge Lynn Davis ruled in favor of Orem city.

“The agreement also stated that Orem city had no obligation to perform grading or filling on the site,” the ruling states. “Thus the agreement does not obligate Orem city to sift through the subsurface to remove any and all debris.”

The development company appealed the decision and won, although the appellate court narrowed the definition of what qualified as debris and the total area of land.

As the company prepared for a jury trial, the city attorney challenged the expert witnesses Northgate Village Development wanted to use in the case. The 4th District Court judge again ruled in favor of the city, and again the appellate court reversed the decision.

City attorneys brought the issue before the Utah Supreme Court in April 2019, marking 10 years since the lawsuit was filed. The mayor and city manager originally involved in the case have since passed away.

Northgate Village Development company sold off half of their retirement to pay for the $3 million cleanup, and Fairbanks explained he was disgusted that the city only offered an $80,000 settlement for the court case.

“They have bottomless pockets to reach into,” Fairbanks said. “It’s been devastating for us.”

Other side of the lawsuit

Orem city attorneys disagree that city officials are the ones responsible for the debris.

The 800 North property was once owned by the Utah Highway Patrol and the Utah Department of Transportation, and attorneys argue that the garbage may have been buried before the city’s ownership.

Before the purchase, the city worked closely with an environmental assessor to take care of any cleanup responsibilities.

The environmental assessment only addressed surface issues, however, and Northgate officials waived a second assessment to evaluate sub-surface issues.

City officials took “many expensive precautions” to complete environmental cleanup written in the agreement, like removing underground storage tanks, miscellaneous oil and grease deposits, paint and oil containers and hazardous substances such as asbestos.

All those actions were in accordance with an “Environmental Clean-up List” that described exactly what the city was responsible to clear. The list also included buried transformers that city officials searched for in 1990. When Northgate found the transformers during the cleanup, the city paid for the removal.

“The record fails to support and is in fact contrary to Northgate’s bald characterizations,” the January 2019 brief states.

City attorneys agreed that the city once mined portions of the land for sand to use in projects. The area was filled with dirt and rock along with small pieces of asphalt and concrete, which attorneys argued was legal at the time.

“State representatives indicated that the city was not required to remove any asphalt or concrete buried at the Public Works Parcel and that no further action was required by the city,” the brief states.

Officials also alleged that the development company is trying to turn residents against the city by using inflammatory language like calling the area an “illegal dump.”

“Northgate wants to continue mentioning car bumpers, bicycles, water heaters, washing machines, car engines, car parts, medical waste products, refrigerators, silverware, 50-gallon drums, etc. to perpetuate its ‘illegal’ dump story line and attempt to prejudice the factfinder against the city — not to provide relevant evidence as to any additional costs incurred by Northgate,” city attorneys wrote in a January 2019 brief.

As the court case is still ongoing, Orem City Attorney Greg Stephens declined to discuss the details of the matter.

“I can tell you there is a huge discrepancy between what they feel the facts are and what we feel the facts are,” he said.

Next steps in the case

Katie Steffey, the attorney for Northgate, chuckled when she quoted the phrase “the wheels of justice grind slowly.”

“This is the extreme of that,” she said. “It’s frustrating for our client. They would like to be able to move forward and get this resolved.”

Right now, both sides are waiting on the Supreme Court decision on whether or not Northgate can use their expert witnesses. The ruling could happen anytime between six months and a year.

Legal fees continue to pile up the longer the case drags on. The lengthy court case also impacts the memories of those called on to testify.

At one point, Northgate filed to move the court case out of Utah County because Steffey worried the jury trial would struggle to be impartial.

“There are certain factors you want to consider when you have a jury. One of them is you don’t want them to be able to go and do independent investigations on their own,” she explained. “You don’t want them to go and look at the site and do their own investigation because that’s not the evidence that is presented at the trial.”

But since the judge denied the motion, she expects the case to be tried in 4th District Court in Provo.

“We want to go forward. We think we’ve got the law on our side,” she said. “We think we’ve got the facts on our side and we want to be able to present to a jury.”

Ashley Stilson covers crime, courts and breaking news for the Daily Herald. She can be reached at 801-344-2556 or astilson@heraldextra.com.

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