Appelbaum v. St. Louis County, 53602

• Decision Date: 09 February 1970
• Docket Number: No. 53602,No. 1,53602,1
• Citation: 451 S.W.2d 107
• Parties: Richard H. APPELBAUM, William Hamilton, Edward Jones, Elsie Kuhn, John J. Moody, Harry Noe, and Joseph Walter, Individually, and also as representative of and for all of the citizens, residents, property owners, and taxpayers of the Village of St. John, Missouri, and Continental Can Company, a corporation, Plaintiffs-Appellants, v. ST. LOUIS COUNTY, Defendant-Respondent, the Village of Bel-Ridge, Defendant-Appellant
• Court: Missouri Supreme Court

Page 107

451 S.W.2d 107

1 ERC 1125

Richard H. APPELBAUM, William Hamilton, Edward Jones, Elsie Kuhn, John J. Moody, Harry Noe, and Joseph Walter Individually, and also as representative of and for all of the citizens, residents, property owners, and taxpayers of the Village of St. John, Missouri, and Continental Can Company, a corporation, Plaintiffs-Appellants, v. ST. LOUIS COUNTY, Defendant-Respondent the Village of Bel-Ridge, Defendant-Appellant.

No. 53602.

Supreme Court of Missouri, Division No. 1.

Feb. 9, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

March 9, 1970.

McMahon, Kieffer & Schmidt, David A. McMahon, Clayton, for appellants, Richard H. Applebaum and others.

Joseph B. Moore, St. Louis County Counselor, Thomas W. Wehrle, Deputy County Counselor, Andrew J. Minardi, Asst. County Counselor, Clayton, for respondent.

Green & Lander, Edward Lander, Clayton, for appellant, Village of Bel-Ridge.

HIGGINS, Commissioner.

Action in equity by Richard H. Appelbaum and others against St. Louis County and Village of Bel-Ridge, and cross petition by Bel-Ridge against the County, to enjoin construction by the County of an incinerator and land fill on land in the Villages of St. John and Bel-Ridge. Judgment was for defendant St. Louis County against plaintiffs on their petition and against Bel-Ridge on its cross petition.

In 1964 St. Louis County was the beneficiary of a study prepared by Horner & Shifrin, Consulting Engineers, financed by an interest-free loan from the Federal Housing and Home Finance Agency. The purpose of the study was to determine the most appropriate type, size, and location of facilities required to dispose of mixed refuse produced in St. Louis County, and it was directed specifically toward eventual construction of incineration facilities.

After completion of the study and at a special election June 22, 1965, the electorate of St. Louis County approved Proposition No. 3 authorizing the county to issue $5,900,000 in bonds for planning, designing, acquiring, constructing, and equipping incinerators for the destruction of garbage, trash, cinders, refuse matter, and waste, and acquiring land therefor.

Pursuant to the authority of Proposition No. 3, and on November 16, 1965, the St. Louis County Council, by Ordinance No. 3744, authorized and directed its county supervisor to contract with Horner & Shifrin for engineering services necessary for the design and supervision of construction of the two solid refuse incinerators.

On February 11, 1966, St. Louis County Public Works Director D. E. Mueller requested the county's Board of Public Works to approve construction plans and selection of a construction site in North St. Louis County on the north side of St. Charles Rock Road in the villages of St. John and Bel-Ridge zoned by those municipalities partly residential and light industrial. The Board of Public Works approved Mr. Mueller's recommendations and, by letter of February 14, 1966, requested the St. Louis County Council to establish the proposed area as the site of one of the authorized incinerators.

The Council, on May 4, 1966, by Ordinance 3940, authorized and directed the Board of Public Works and county counselor to acquire, by negotiation, purchase, condemnation, or otherwise, the proposed site as legally described to be used for incinerator, land fill, and park purposes, deemed the establishment of an incinerator, land fill, and park on the proposed site beneficial and necessary to the health and welfare of all of St. Louis County, and authorized payment for such acquisitions from the Sanitary Land Fills Fund and the Incinerator Fund 1965 Bond Issue, Proposition No. 3.

The Council conducted a public hearing on the propositions of Ordinance No. 3940 in St. John, and interested parties were permitted to speak at regular meetings on final passage and perfection of Ordinance No. 3940.

Plaintiffs' petition and the cross petition of Bel-Ridge alleged: that Ordinance No. 3940 is an unreasonable, arbitrary and capricious act of the legislative body (the County Council) and, particularly, that it violated the zoning ordinance and residential character of Bel-Ridge; that the proposed operation of an incinerator on the site would produce dirt, smoke, noise, and odor as to constitute a nuisance; and it was prayed that defendants be restrained and enjoined from constructing the proposed incinerator and land fill on the proposed site.

The answer of St. Louis County alleged: that it is a county of the first class operating under a charter adopted pursuant to Article VI, Section 18 of the Missouri Constitution, V.A.M.S.; that the petition and cross petition state no claim for relief; that the action is premature in that the incinerator has not been constructed; that the relief sought will not lie against a political subdivision; and that the relief sought is against the public policy of Missouri because Section 49.303, V.A.M.S., authorizes St. Louis County, when found necessary for protection of public health, to construct and operate an incinerator.

The issues raised by the pleadings were tried to the court in six days of trial during which nearly 900 pages of testimony were adduced and many exhibits were received in evidence. In finding for St. Louis County, the court's Decree, Findings of Facts, Review of Testimony, Conclusions of Law, and Conclusions of the Court, were of such detail as to cover 56 transcript pages and, upon this review, those findings and the judgment of the trial court are not to be disturbed unless clearly erroneous. Civil Rule 73.01(d), V.A.M.R. It would serve no useful purpose to detail all the evidence and findings, and only the attacked findings and the evidence necessary to disposition of the points of this appeal will be recited.

The Solid Waste Disposal Study prepared for St. Louis County describes 'refuse incineration': (It) 'consists of the controlled burning of mixed refuse so as to provide a sanitary and inoffensive residue. Well controlled burning results in an essentially nuisance-free operation, in that odors, smoke and fly ash constitute no significant problems. The incinerator residue, which may be 5 to 25 per cent by weight of the raw refuse, occupies only a small percentage (3 to 15 per cent) of the volume of the raw refuse, and may be dumped as fill material without subsequent earth cover.

'Incinerators often are constructed in built-up areas, and in some cases, adjacent to residential developments. It is preferable, however, to locate such facilities in areas that are zoned for industry. The most ideal incinerator site would be near the center of refuse production, and would be adjacent to an area suitable for receiving the residue as fill. * * *

'Without considering the area necessary for residue disposal, the minimum area required for a 500 to 600 ton per day incinerator would be on the order of 5 to 6 acres. It normally is desirable to provide some additional area for planting and landscaping.

'It is necessary that the method or methods of refuse disposal to be adopted provide a maximum degree of reliability in order to prevent an excessive accumulation of raw refuse. * * * The greatest degree of reliability will be achieved by providing flexibility in the disposal system. In incineration, flexibility is assured by providing adequate refuse receiving capacity, multiple burning units, whether in one or in several plants, and equipment requiring a minimum amount of maintenance.

'* * * The residue discharged from incinerator grates is a mixture of ashes, tin cans, noncombustibles and unburned refuse. The residue must be quenched thoroughly to eliminate fire, smoke and odors, before being conveyed or hauled to a disposal site. * * *

'The quantity of residue may be as low as 5 per cent or as high as 25 per cent by weight of the raw refuse. For St. Louis County refuse, the proportion of residue is expected to be toward the lower limit of this range. * * * Since the residue would be thoroughly quenched and would contain little if any organic materials, it could be dumped into abandoned quarries or similar places without subsequent earth cover. * * *

'* * * it is recommended that incinerators built by St. Louis County be of the continuous feed type. All refuse would be weighed by truck scales prior to dumping into the receiving bin. The receiving bin and the tipping floor would be enclosed. * * * From the receiving bin, the refuse would be conveyed by overhead cranes equipped with clamshell type buckets to the water-cooled feed hoppers of the incinerator furnaces. The furnaces would be equipped with either bar and key, rocking, or reciprocating type grates, designed to move the refuse continuously from the feed hopper to the discharge end. Essentially complete combustion of the burnable refuse would be effected. The residue from the grates would be discharged to a water-filled conveyor trough, which would serve as a means of quenching the residue as well as a means of conveying the residue to trucks for hauling to disposal sites. The furnaces, together with their combustion and subsidence chambers, would be designed to effect the removal of particulate matter from the gas stream in accordance with the applicable air pollution ordinances. Provisions would be made for the future installation of mechanical fly ash removal equipment if required. Natural draft chimneys would be provided, which would be designed to serve as stacks for induced draft fans, if such fans were to be required at a later date for a more refined fly ash removal system.'

The study also makes several comparisons between the characteristics of conventional 'sanitary land fill' and the type land fill operation which accompanies incineration. 'A well-operated sanitary landfill generally is considered to comply with normal public health requirements. It is difficult, however, to avoid conditions under which public health hazards may be created, and...