Harrison v. Indiana Auto Shredders Co.

• Decision Date: 08 January 1976
• Docket Number: No. 75--1367,75--1367
• Citation: 528 F.2d 1107
• Parties: , 6 Envtl. L. Rep. 20,179 Russell HARRISON, d/b/a Indiana Coldweld Company, et al., Plaintiffs-Appellees, v. INDIANA AUTO SHREDDERS COMPANY, a division of Pielet Bros. Iron and Metal, Inc., an Illinois Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1107

528 F.2d 1107

8 ERC 1569, 6 Envtl. L. Rep. 20,179

Russell HARRISON, d/b/a Indiana Coldweld Company, et al Plaintiffs-Appellees, v. INDIANA AUTO SHREDDERS COMPANY, a division of Pielet Bros Iron and Metal, Inc., an Illinois Corporation Defendant-Appellant.

No. 75--1367.

United States Court of Appeals Seventh Circuit.

Argued June 10, 1975.

Decided Dec. 31, 1975.

As Amended Jan. 8, 1976.

Stephen W. Terry, Jr., Indianapolis, Ind., for defendant-appellant.

Benjamin F. Hatfield, Jr., William A. Hasbrook, Indianapolis, Ind., for plaintiffs-appellees.

Before CLARK, Associate Justice, ^* FAIRCHILD, Chief Judge, and PELL, Circuit Judge.

CLARK, Associate Justice.

This is an appeal from a judgment of the United States District Court for the Southern District of Indiana in a nuisance action, ¹ permanently enjoining appellant-Indiana Auto Shredders Company from operating its shredding plant for the recycling of automobiles in the Irish Hill section of Indianapolis, Indiana, and awarding $176,956 in compensatory and $353,912 in punitive damages to plaintiffs and intervenors. The suit was filed by appellee-Russell Harrison (d/b/a Indiana Coldweld Company and some 33 other 'claimants' who reside or work in the Irish Hill section, alleging: (1) that the dust, vibration, and noise generated by the company's shredding plant constituted a common law and statutory nuisance under Indiana law ² by damaging property and endangering the health and safety of residents and workers in the area; and (2) that the company's shredding plant violated various local air pollution regulations. ³

This case presents the very difficult question of how to balance the legitimate demands of an urban neighborhood for clean air and a comfortable environment against the utility and economic enterprise of a beneficial, but polluting, industry. The trial court devoted over thirty trial days to the case on the preliminary ⁴ and final hearing and concluded that the company must cease operation of the shredder and pay damages, both compensatory and punitive, for the nuisance it caused to the Irish Hill neighborhood. On March 25, 1975, upon the filing of a 114-page memorandum of decision granting such relief to the claimants, the court allowed appellant an additional 40 days to close down operations of the shredder. An appeal was promptly filed, and a temporary stay was entered by this court on April 29, 1975. That order was vacated on May 8, 1975, and the shredder was shut down in accordance with the district court's judgment, remaining so to this day. For reasons stated below, we reverse the judgment of the district court.

I. HISTORICAL BACKGROUND

In recent years, the abandoned and junked automobile has become recognized as one of this country's major solid waste disposal problems. ⁵ Auto 'graveyards' represent not only an aesthetic blight that mars the natural beauty of the land, but also a scandalous waste of energy and resources that produced those cars. The concept of salvaging discarded automobiles and other metals by shredding them and recovering the ferrous metal was developed by a Texas inventor and industrialist, Sam Proler, in the early u960's. Typically, a shredding machine is composed of massive rotary teeth (called 'hammers') that rip off pieces of the automobile as it passes a cutting edge and then spits fist-sized chunks of metal and other matter across a series of 'cascades,' blowers, and magnets, which separate the ferrous metals from the non-ferrous metals and debris. A series of conveyors then carries the product and waste to storage. A 'hammermill' such as the one in this case weighs 220 tons and measures approximately ten feet in width, fourteen feet in length, and nine feet in height. The conveyors, blowers, cascades, motors, and storage bins that clean, treat, and house the shredded product are built around this central machine. There are several manufacturers of such machines, and hundreds are presently in operation throughout the country, including four in Detroit, and one each in Chicago, St. Louis, Louisville and Columbus. ⁶

In 1970, Proler, in combination with several local partners, decided to construct and operate a shredder in the Indianapolis area and for that purpose acquired the location now in dispute--a 20-acre tract formerly used as a roundhouse by the Penn Central Railroad. This site seemed particularly attractive for the proposed heavy operation, since an interstate highway was only eight blocks away and the original roundhouse tracks were still connected to the railroad main lines. Moreover, the roundhouse and other railroad facilities formerly on the site had long since been removed, and for the past 20 years, in fact, the site had served as little more than a community dumping ground.

At the time of purchase, the site was zoned for industrial use, I--4--U, ⁷ and Proler filed an application with the local planning agency for rezoning under the heaviest industrial classification, I--5--U. ⁸ While this application was pending, Proler encountered some opposition to the project from those in the older residential areas scattered throughout the industrial plants of Irish Hill. In an effort to forestall such antipathy, he unilaterally imposed upon the tract a set of restrictive covenants, of which more will be said below. In December of 1970, despite these early self-imposed restrictions, the City-County Council of Marion County rejected the recommendation of the planning agency and voted to disapprove the rezoning. ⁹

Proler subsequently reapplied for the I--5--U classification, eliminating seven acres from the tract and re-emphasizing his intention to observe all appropriate use, development, and performance standards. In his second application papers, Proler stated that he wished to build 'a metal manufacturing plant capable of converting automobiles . . . into their basic metal components.' He further promised:

'that the plant itself will be self-contained, although outdoor storage of raw materials (i.e., automobiles, etc.) and of metal products will be necessary; that all development standards appropriate for the requested classification will be observed; that the Proler Corporation offers to landscape the south line abutting the area used for its plant with landscaping . . .; and that the Restrictive Covenants previously offered . . . are renewed.'

The restrictive covenants attached to the reapplication provided as follows:

(1) No trucks over 50 feet in length shall use Bates and DeLoss Streets (two residential streets adjacent to the site) in going to or from the shredder site;

(2) A public pedestrian easement shall be dedicated ten feet wide within the bounds of vacated Leota Street and running from the Penn Central right of way on the north to the south end of the 20-acre tract;

(3) The metal processing plant will be installed as shown on a plan attached, although specific structures may be changed in site or removed somewhat in location;

(4) A buffer strip at least 20 feet in depth shall surround the metal processing plant and the outdoor storage areas for raw materials and finished material, in accordance with a design by the administrator of the Department of Planning and Zoning;

(5) A fence shall surround the entire metal processing areas, at least 20 feet inside the borders of the property and shall be of a non-see-through variety and shall be at least 8 feet tall;

(6) No burning shall occur, and no smoke or toxic gases shall be emitted from the metal processing operation in sufficient quantities to either violate the standards of the Air Pollution Control Ordinance of the City of Indianapolis or to be offensive to a person or normal sensibilities having proper regard for the conditions prevailing in the surrounding neighborhood;

(7) The noise generated by the shredder over any two-hour representative period when measured from a distance equal to the distance from the shredder itself and any point on Leota Street (but not vacated Leota Street), Shelby Street, State Street, or Bates Street shall not average in excess of the noise level beyond the range of 85 to 95 decibels, when measured from these points by applicable noise exposure regulations promulgated by the United States Department of Labor;

(8) No industrial waste . . . generated by the metal processing operation shall be permitted to accumulate on, or to be in any manner discharged beyond the limits of, the Proler tract, and all such refuse shall be hauled away from the same; and

(9) The restrictive covenants supplement and do not waive or restrict the standards established by the Industrial Zoning Ordinance.

Proler's reapplication was considered and approved by the local planning agency, and subsequently the rezoning to I--5--U was accomplished when the City-County Council failed to act to stop the change.

Under the I--5--U classification, property may be used for scrap metal operations such as a shredder provided that the following requirements are met:

(1) Fencing shall be provided that is at least 6 feet high and 20 feet from property lines, and a buffer planting strip shall be built at least 20 feet in depth between the property lines, enclosing the entire outside and operation area, including a compact hedge, row of shrubbery or evergreen trees extending the full length of the buffer strip and at least six feet high or such additional height to effectively screen from view at every point along the property lines all materials stored and outside operations, with any ground area between such shrubbery and the property lines in grass or suitable ground cover and/or shrubbery maintained in good condition and free of litter;

(2) The maximum height of buildings and structures shall not exceed 50 feet, except chimneys, smokestacks, flagpoles, or roof structures for the housing of such equipment as elevators or water tanks;

(3) The maximum vertical height of equipment and materials shall not exceed 20 feet and shall...