City of Des Moines v. Harvey, 2--57318

• Decision Date: 30 June 1976
• Docket Number: No. 2--57318,2--57318
• Citation: 243 N.W.2d 606
• Parties: CITY OF DES MOINES, Iowa, Appellant, v. Edward D. HARVEY, Appellee.
• Court: Iowa Supreme Court

Page 606

243 N.W.2d 606

CITY OF DES MOINES, Iowa, Appellant, v. Edward D. HARVEY, Appellee.

No. 2--57318.

Supreme Court of Iowa.

June 30, 1976.

Philip T. Riley, Corp. Counsel, and Ronald Noah, Asst. City Atty., Des Moines, for appellant.

Gerald R. Ralph, Des Moines, for appellee.

Submitted to REYNOLDSON, Acting Chief Justice, and MASON, RAWLINGS, REES and HARRIS, JJ.

REES, Justice.

This is an appeal by plaintiff City of Des Moines from a judgment and decree of the trial court dismissing plaintiff's petition in which it sought to enjoin defendant from operating and maintaining a dump and landfill without having secured permits or licenses for the operation of the same. We reverse and remand for the entry of a decree in conformity with this opinion.

Defendant Harvey owns and operates Harvey Landfill at 703 SE 30th Street in Des Moines. Approximately half of defendant's real estate consists of a pit filled with water to a depth of 25 to 30 feet. Most of the material dumped at defendant's premises is pushed into the water-filled pit.

Defendant's premises are almost entirely located in an area which is zoned 'R--2', a residential zone with uses restricted to single-family and duplex dwellings. Dumps or landfills are not a permitted use in residential districts in Des Moines, but the Zoning Board of Adjustment is empowered to allow them through the grant of a special use permit. Defendant never applied for such a permit from said Board of Adjustment and never applied to the city council for a license to operate a private disposal site for the disposal of solid waste.

The record establishes that the landfill and dump operation on defendant's premises came to the attention of the Department of Health of the City of Des Moines and the State Department of Health tharough complaints lodged by residents in the neighborhood during the summer of 1942. At that time wood scraps, appliances, oil drums, industrial waste, wood pallets, rubber tires, steel grindings, paints, solvents, trees, construction waste, demolition waste, cardboard, straw and some garbage and manure were being dumped at defendant's landfill site. The water was black and gave off an offensive odor and a considerable amount of debris was floating on the surface. Defendant had contacted the Natural Resources Council of the State of Iowa, but had made no other contact with the city or state. The Natural Resources Council had deferred action on his application until permits had been obtained from the City of Des Moines and the State of Iowa.

During the month of November 1972 defendant and his counsel met with representatives of the State Department of Health and the City Health Department in order that the health officials could ascertain defendant's intention with regard to the continued operation of the dump or landfill and apprise him of the state and city regulations, ordinances and statutes. Defendant agreed to submit a proposal to the department of health to secure a permit to operate a sanitary landfill, but he was given permission to operate his dump or landfill on a temporary basis provided he limit the materials received to non-floating appliances, building rubble, dirt, concrete and trees, provided such trees were not allowed to float in the water.

Later the same month, defendant made an application to the State Department of Health seeking an exception to departmental rules to permit him to dump certain materials in his landfill. After a review by the department, defendant was advised by letter from the State Commissioner of Public Health that an exception could not be allowed and that he would be permitted to dump only inorganic rubble in his premises. 'Rubble' is defined by the State Department of Health rules as brick, stone, rock or similar inorganic material, but does not include waste or debris associated with construction projects, demolition materials, industrial waste, rubber tires or wheels, garbage or manure.

Despite the fact defendant was limited to receiving only inorganic rubble at his premises, defendant continued to receive and dump other materials after his application was denied.

The record also indicates that the City of Des Moines was dumping materials in a sand and gravel pit located three blocks north of defendant's property at SE 30th and Raccoon Streets. The materials dumped at the city's site included trees and brush with some demolition waste, street sweepings, concrete, broken asphalt and a few appliances. It appears the site operated by the city is in an area zoned 'M--2', a heavy industrial area in which dumping is permitted as a conditional use. No private haulers were permitted to dump materials at the city site, and all of the materials deposited therein came from city property or were generated by city activities. The city operation had received the approval of the State Department of Public Health.

The petition of the City was filed April 11, 1973, and was in three divisions. In Division I plaintiff alleged defendant was using, occupying and permitting the use of his real estate for a dump or landfill in violation of the city zoning ordinance. The plaintiff City sought a temporary and permanent injunction to restrain defendant from using and occupying his property as a dump or landfill, and to require defendant to remove materials illegally dumped on the premises.

In Division II of its petition, plaintiff City alleged defendant was allowing his premises to be used as a public dump for ashes, refuse and other material without a permit from the City of Des Moines Department of Health in violation of § 24--73 of the Municipal Code of Des Moines, and that defendant was allowing materials and substances to accumulate on his premises which were likely to give off offensive odors and to be visually offensive in violation of § 24--74 of the Municipal Code of Des Moines. Plaintiff asked for the issuance of a temporary and permanent injunction to enjoin the defendant from allowing his premises to be used as a public dump, and also asked the court to issue a mandatory injunction requiring defendant to remove from his premises all materials likely to be so offensive.

In Division III of its petition, plaintiff City, for a separate cause of action, asserted defendant was operating and permitting the operation of a disposal site for the disposal of solid waste without first having applied for and received a license for such an operation, as is required by § 52A--18 of the Municipal Code of Des Moines. It was further alleged in said division that defendant was conducting a private disposal operation in violation of § 52A--19 of the Municipal Code. The city requested the court issue temporary and permanent injunctions enjoining and restraining defendant from operating a solid waste disposal site, and issue a mandatory injunction to require defendant to remove all materials accumulated in a way detrimental to health and welfare of the public on his premises.

In his answer, defendant generally denied the allegations of plaintiff's petition and asserted as an affirmative defense that in November of 1972 defendant had received two letters from the Health Engineer of plaintiff City indicating he could operate his landfill on a limited basis. D...