Cabrera v. Municipality of Bayamon, Civ. No. 126-72.

• Decision Date: 30 January 1974
• Docket Number: Civ. No. 126-72.
• Citation: 370 F. Supp. 859
• Parties: Jose Ortega CABRERA et al., Plaintiffs, v. MUNICIPALITY OF BAYAMON et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

370 F. Supp. 859

Jose Ortega CABRERA et al., Plaintiffs, v.MUNICIPALITY OF BAYAMON et al., Defendants.

Civ. No. 126-72.

United States District Court, D. Puerto Rico.

January 30, 1974.

Arturo Aponte-Pares, Olaguibeet Lopez-Pacheco, San Juan, P. R., for plaintiffs.

Jose Manuel Ramos, Esq., Mark C. Jimenez, Ines Acevedo De Campos, San Juan ,P.R., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CANCIO, Chief Judge.

The present action was filed by verified complaint by José Ortega Cabrera and others representing a class of citizens residents of the Municipality of Bayamón, Buena Vista and Ortiz Wards, against Guillermo Campos, Mayor of Bayamón, in his personal and official capacity as Mayor of the Municipality of Bayamón, and Mr. Salvador Díaz Collazo, in his personal and official capacity as head of the Municipal Dump Operation System.

Jurisdiction was based on the Civil Rights Act, 42 U.S.C.A. § 1981 et seq., 28 U.S.C.A. §§ 1343, 2201 and 28 U.S.C. A. § 1331.Additional allegations were filed by plaintiff averring the existence of a conspiracy under 42 U.S.C.A. §§ 1983and1985 between defendantGuillermo Campos and other Commonwealth officials.Plaintiffs voluntarily dismissed this additional jurisdictional ground but without withdrawing its factual allegations to that effect.

An order to show cause was issued by the Court.Defendants moved to dismiss the complaint on several grounds, which were denied in open court.¹

Evidentiary hearings were held on February 18 and 22; March 16, 20, 21, 23 and 28; April 3, 4, 5 and 10; June 5, 6, 7, 8, 9, 12, 15, 26, 27, 28 and 29, and August 10, 1972, in which both parties presented voluminous oral and documentary evidence.

Two ocular inspections of the Municipality Dump Area at Bayamón were conducted by the Court and the observations of the Court were made part of the record.

The order of evidence was altered by consent of the parties and the approval of the Court, due to the fact that many of the witnesses were public employees and professors at the University of Puerto Rico who were not available at the most convenient moment.

At the request of plaintiffs and with consent of the defendants, the Court allowed the Geological Services of Puerto Rico, Inc., and the Puerto Rico Soil Testing Laboratories, Inc., to conduct a series of drillings in the Municipal Dump area.Also with the consent of plaintiffs and at the request of defendants, the Court allowed the Public Works Department of the Commonwealth of Puerto Rico to conduct a similar set of drillings in the same area.With the consent of both parties, biological, chemical, and physical tests were made of different samples of water from the dump area and the wells of neighbors whose properties lie adjoining the area.The U.S. Geological Survey Team of the Department of the Interior of the United States graciously made extensive chemical, physical and biological tests of the water in the Municipal Dump Area and adjoining areas including the wells of neighbors.

The parties stipulated that the preliminary injunction and permanent injunction would be submitted by the evidence presented in the hearings.The issue of damages would be left for further hearings, if needed.²

From the oral testimony of all witnesses, from the appreciation of all physical evidence, as well as the Court's own appreciation in the ocular inspections of the area, and given the weight of all evidence, the Court arrives at the following,

CONCLUSIONS OF FACT

1.Plaintiffs are members of a group of families living in the Municipality of Bayamón, Buena Vista and Ortiz Wards, a rural area in the nearby mountains of Bayamón.They are located about 12 kilometers from the urban center of Bayamón and at a medium elevation of 150 meters above sea level.

2.The region is characterized by high relief hills and mountains and slopes and V shaped canyons.The abundant rainfall, averaging 75 inches per year, allows for agricultural activities all year around.

3.The area where the dump is located is situated physically in the uppermost part of a ravine.PlaintiffFeliciano Baez' farm has one of its boundaries adjacent to the dump area.³

4.A careful evaluation of all expert testimony and evidence submitted by both parties indicates that a zone of high permeability prevails regionally in the sub-surface rock at the dump site.It contains all the important characteristic factors necessary to absorb, retain, and transmit ground water through its entire fractured system and to discharge through springs and to transmit water to the permanent water table.

5.Investigations at the dump site and along adjacent properties by different witnesses and by the Court indicate that a continuous "spring-line does exist along a trend parallel to the bottom of the V-shaped valley occupied by the existing creek and starting above the dump site.There is a series of springs in the dump site area."⁴

6.On ocular inspection, the Court observed a constant discharge of water into the creek coming from underneath the disposal mass of garbage and fill material, even after a drought lapse of several days.This water had a noticeable strong foul odor and was visibly turbid.

7.Along the creek there are five wells or springs, to wit: (1)Feliciano Baez' spring, located approximately 150 feet below the dump and 4 feet from the creek; (2)José Ortega's spring, 350 feet below the dump and 8 feet from the creek; (3)Félix Díaz' spring, 550 feet below the dump and 75 feet from the creek; (4)Juan Cintrón's spring, 700 feet below the dump and 52 feet from the creek; (5)Hogar Crea's spring, 800 feet below the dump and 18 feet from the creek.⁵The line of springs is interconnected underground.

8.The creek that is born in the hills and crosses the largest property is a tributary to Río La Plata, one of the largest rivers in the island.

9.During the last few years the Municipality of Bayamón has been in need of obtaining a site to build a new dump area.Several feasibility studies were made of the different areas in which to locate the new dump.The site selected was the present one.At the time of selection of this area, Engineer Mario Medero Rivera, who was working for the Municipal authorities, objected verbally and in writing to the construction of the new dump site because water pollution problems were foreseen.Guillermo Campos, then Mayor of Bayamón, had knowledge of that objection.

10.One of the reasons for objection to the site of the new dump was the fact that in the designated area there was a creek that started at a higher point in the hills and ran towards River La Plata across Road 167.There were also several wells and springs in the area.⁶

11.Plaintiffs and the neighbors of the area had been using the creek water and the wells for over 50 years for drinking, fishing, swimming, bathing, picnics and outings, and as source of aesthetic beauty and recreation.Different species of fish and shrimp were found in the creek and were used as a source of fishing for recreation.

12.Plaintiffs and other neighbors used the same water to bathe and for all purposes in their houses.During the last 20 years electric pumps were installed to pump water directly to their homes from the different wells along the edges of the creek.Mr. Jose Ortega Cabrera had the water of his spring tested by a laboratory and the water was found safe to drink.

13.As soon as knowledge of the plans to open a new dump in this area reached plaintiffs and other citizens in the neighborhood, they started opposition to the opening of the new dump area because of the probability of water pollution.On May 11, 1969 a series of letters and correspondence between plaintiffs and Mayor Guillermo Campos started, plaintiffs expressing objections to the establishment of the new dump.The letters were answered by defendant and his employees, as well as by different agencies of the Commonwealth of Puerto Rico, assuring plaintiffs that no action would be taken without timely notice to them and the opportunity to be heard in the matter.

14.On November 12, 1969 the Planning Board of the Commonwealth of Puerto Rico favorably recommended the preliminary plans for the acquisition of the land for the proposed dump site of Bayamón, but expressly indicated that this action was not an approval of the development plans nor of the construction of the dump area.⁷Under Planning Board Regulation No.2, Article 5, Guillermo Campos, in his official capacity as Mayor of Bayamón, was the person responsible for the preparation and submission of the project of the proposed Bayamón dump site.

15.Several times during the year 1970, meetings between Guillermo Campos and plaintiffs were held.At these meetings, plaintiffs and other residents of the area insisted in their opposition to the dump because of the danger of water pollution and other environmental hazards, but they were reassured by defendant every time that all precautions would be taken to prevent such occurrence.

16.Under the Municipal Law of Puerto Rico, the Mayor must propose to the Municipal Council the annual budget for the fiscal year.⁸Guillermo Campos complied with this requirement and, with the Municipal Council, approved the different budgets everytime.The sums for the condemnation and development of the dump site were included in the budgets approved, and later supplemented by the Municipal Council with the Mayor's approval.⁹None of the plaintiffs were notified as to the place and time of the hearings required for the approval of the different parts of the budget,¹⁰ thus depriving them of an opportunity to raise their opposition to the establishment of the new dump site.

17.The Environmental Quality Board informed the Governor, on July 15, 1971, that they had no objection to the construction of the Municipal Dump Yard.

18.The Commonwealth of Puerto Rico, for the benefit of the Municipality of Bayamón, condemned in Civil suit 71-764, filed...