They call operation ‘atrocious,’ ‘utterly intolerable’
TOM MORTON Star-Tribune staff writer trib.com | Posted: Friday, November 11, 2005 12:00 am
This smells. Bad.
Rostad Mortuary’s crematory has damaged the property values, fouled the air with toxic substances and bright lights, and sickened residents who live near it in Rawlins’ historic district, according to a federal lawsuit filed this week.
Since it began operating, the crematory also has violated the federal Clean Air Act, a permit waiver of the Wyoming Department of Environmental Quality, and the zoning ordinances of the city of Rawlins, according to the complaint of the 10 neighbors.
“The crematory with its glaring, all-night illumination, its noise, and the noxious odors it creates is extremely offensive, and such activities would be and are offensive and annoying to any average or normal person,” according to the complaint.
Rostad attorney Jason Neville declined to comment.
According to the complaint, the funeral home’s owners applied for a building permit in March 2004 to install the two-chamber, natural gas-fired Millennium II crematory in a garage, according to the complaint. The city planner may not have been authorized to issue the permit, and neighbors received no official notice of the crematory.
Rostad began cremating corpses in August 2004, and citizens have been objecting ever since to odors they say permeate their houses, make them ill, and devalue their properties.
Besides citizen complaints, the lawsuit claims that the crematory is operating without a valid air quality permit or waiver and its owners failed to disclose all potential emissions including lead, cadmium, mercury and other hazardous pollutants.
“Such conduct as exhibited by Defendants is outrageous behavior, which goes beyond all conceivable bounds of decency and is atrocious and utterly intolerable in a civilized community,” the lawsuit says.
Five couples suing the Rostad Funeral Home in Rawlins object to its new crematory on several levels, according to their complaint filed in federal court this week.
Locally, the crematory violates zoning rules, they say.
Statewide, it violates the permit waiver Wyoming Department of Environmental Quality issued to it, they contend.
And on the federal front, it violates the emission limitations of the Clean Air Act, they allege.
But the neighbors’ most powerful objections start at home because of the odors, noise, bright lights illuminating the area, property devaluation and illnesses, according to the complaint:
* The crematory is a nuisance. “The crematory is a destructive force to the peace and tranquility of the neighborhood and the Plaintiffs’ use and enjoyment of real property.”
* It trespasses on their property. “The Defendants by operating the crematory have intentionally invaded the properties of the Plaintiffs, and each of them, by intending to engage in the cremation of human bodies, resulting in the deposit of fumes and materials from said bodies upon the premises of the Plaintiffs.”
* It is a public nuisance. “The Defendants have attempted to avoid the applicable laws by submitting incomplete information as a basis for an air quality permit, by failing to submit a site plan with its application for a permit from the WDEQ, and further by misrepresenting air quality information to Rawlins City officials.”
* And it exhibits outrageous conduct. “In spite of the deleterious effects upon the comfort and welfare of the Plaintiffs and others, and the destruction of property values in the neighborhood, and the illegal nature of the crematory, Defendants have and continue to intentionally cremate bodies, interfering with the use of property, causing extreme emotional distress and physical discomfort, and invading the privacy of the neighborhood and the Plaintiffs.”
It wasn’t always like this.
The funeral home – operating under a nonconforming use in a residential area – and the neighbors apparently got along well for years, and the former owners never cremated bodies, according to the complaint.
In March 2004, however, the new owners, the South Dakota-based Rocky Mountain Funeral Homes Inc., applied for a building permit to install the crematory – a two-chamber, natural gas-fired Millennium II – in a garage.
The approval of the permit appeared to be improper, and the city never notified the neighbors about either the crematory or the expanded nonconforming use of the funeral home, according to the complaint.
The application stated that the crematory “‘produces no emissions other than heat,'” which turned out to be false after the Millennium II began burning bodies in August 2004, according to the complaint.
Neighbors objected at a city council meeting in December, and a representative of the funeral home heard their concerns.
In January, DEQ ordered an emissions test and determined in March the crematory had emissions comparable to the state permit request.
In the spring, some neighbors sued Rostad, but Albany County District Judge Jeffrey Donnell denied their motion for a preliminary restraining order and emergency injunction.
That lawsuit is still active and is set for trial in the spring, said attorney Robert Moxley of Cheyenne.
On the federal side, Moxley and attorneys Mary Throne of Cheyenne and Michael Shickich of Casper are representing David A. and Debbie Harris, Frederick J. and Loris Ann Harrison, Teresa DiFIore and Richard Luther, David and Janice Lubbers, and William and Denise Neu.
Federick Harrison, an attorney, also is representing himself.
Rostad’s attorney, Jason Neville of Casper, represents the funeral home in both state and federal court, and said his firm’s ethical rules prevent him from commenting on an ongoing case.
The case has been assigned to Chief U.S. District Judge William Downes.
Reporter Tom Morton can be reached at (307) 266-0592, or at Tom.Morton@casperstartribune.net.