Nestor Colon Medina & Sucesores, Inc. v. Custodio

• Decision Date: 04 November 1991
• Docket Number: No. 91-1469,91-1469
• Parties: NESTOR COLON MEDINA & SUCESORES, INC., et al., Plaintiffs, Appellants, v. Patria G. CUSTODIO, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 32

964 F.2d 32

23 Fed.R.Serv.3d 1054

NESTOR COLON MEDINA & SUCESORES, INC., et al., Plaintiffs, Appellants, v. Patria G. CUSTODIO, et al., Defendants, Appellees.

No. 91-1469.

United States Court of Appeals First Circuit.

Heard Nov. 4, 1991.

Decided May 7, 1992.

Jose R. Garcia Perez with whom Raul E. Gonzalez Diaz and Gonzalez, Bennazar & Colorado were on brief, for plaintiffs, appellants.

Zuleika Llovet with whom Marcos A. Ramirez Lavandero, Ramirez & Ramirez, Hector Rivera Cruz, Secretary of Justice, and Jorge E. Perez Diaz, Sol. Gen., were on brief for defendants, appellees.

Before CAMPBELL and TORRUELLA, Circuit Judges, and SKINNER, ^* District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Appellants brought suit in the District Court for the District of Puerto Rico under 42 U.S.C. § 1983, alleging that appellees' refusal to grant them certain land use permits violated provisions of the United States Constitution. The district court allowed appellees' motion for summary judgment on all claims. 758 F.Supp. 784. We affirm, except we vacate and remand for further proceedings as to appellants' First Amendment claim regarding denial of a residential site permit.

I.

Appellants are Nestor Colon-Medina & Sucesores, Inc. ("Sucesores") and Dr. Maximo Cerame Vivas, his wife Maria J. Colon and their conjugal partnership. Cerame Vivas is the president of the board of directors of Sucesores. He is allegedly an outspoken member of Puerto Rico's pro-statehood New Progressive Party ("NPP") and a prominent critic of the environmental policies of the Popular Democratic Party ("PDP"), which has been in power in Puerto Rico since 1985. ¹

Appellees are Patria Custodio, Lina Dueno and Santos Negron, the Chairman, Vice Chairman and associate member, respectively, of the Puerto Rico Planning Board ("PRPB"). The PRPB is an agency of the Commonwealth of Puerto Rico, "attached to the Governor's Office." P.R.Laws Ann. tit. 23, § 62a. Defendants were appointed to their positions by the Governor of Puerto Rico, the Honorable Rafael Hernandez Colon, a member of the PDP. The PRPB denied appellants' request for three permits: one to construct a hazardous waste disposal facility in Ponce, Puerto Rico, another to construct a domestic waste disposal facility on the same parcel of land, and a third to construct a condominium development in Boqueron, Puerto Rico. The facts surrounding those denials, in the light most favorable to the appellants, are as follows.

A. The Waste Disposal Permits

On December 10, 1985, Sucesores filed a petition with the PRPB for permits to construct two waste disposal facilities on land outside of Ponce owned by Sucesores. One facility was to handle hazardous and toxic waste; the other was to handle domestic waste. On January 26, 1986, without notice or a hearing, the PRPB denied the petition on a number of grounds related solely to the hazardous waste facility. The PRPB asserted that the proposed hazardous waste facility did not comply with Puerto Rico's "Public Policy and Criteria for the Siting of Hazardous and Toxic Waste Disposal Facilities" (the "Criteria"). Developed pursuant to executive order, the Criteria establish a rating system for evaluating hazardous waste facilities. Among other objections, the PRPB found that there was a risk of contamination of the Pastillo River through runoff and underground seepage of waste, that there was a risk of damage to communities along the narrow and "tortuous" road providing access to the facility, and that the area was "unstable" because it lay on two geological faults.

Sucesores asked for reconsideration, and the PRPB, in a resolution signed by defendant Custodio, reopened the application on March 6, 1986. The PRPB asked several federal and state agencies to comment on whether the hazardous waste facility complied with the Criteria. The agencies which responded to the request were the United States Environmental Protection Agency, Fish and Wildlife Service, and Soil Conservation Service, and the Puerto Rico Environmental Quality Board, Solid Waste Management Authority, and Department of Natural Resources. The agency recommendations were generally positive and were reviewed by all three defendants. On September 2, 1986, PRPB Director of Physical Planning Carlos Lopez notified Sucesores that the project fulfilled the "need and convenience" and "exclusive placement" provisions contained in the Criteria. Lopez also asked for additional information concerning the "related placement" provisions of the Criteria, which Sucesores submitted by the end of September.

In the meantime, certain government officials from the Ponce region began to express their opposition to the hazardous waste facility. The opposing officials named by plaintiffs all belonged to the PDP (whether others not so affiliated were opposed was not indicated). Ponce's PDP Senator Ana Nisi Goyco and PDP Representative Samuel Ramirez organized and led a parade through Ponce opposing the project. In September and November, Puerto Rico's Senate Committee on Health and Environment, chaired by Senator Goyco, held public hearings on the projects. The committee heard testimony from a number of scientists and "technical advisors" as well as Cerame Vivas, and, by December 29, 1986, Goyco had publicly announced the committee's opposition to the project. On April 21, 1987, Governor Hernandez Colon, himself a native of Ponce, publicly announced his opposition to the project. On April 27, Senator Goyco's committee released a report formally recommending that the project be rejected "for being a hazard to the health and the life of Ponce residents." In August, the Governor was reported to have told members of the Ponce Committee for the Quality of Life that he had given the project an "executive veto," and that "Cerame Vivas could submit all [sic] documents he wants, but the dumping yard does not go forward."

Meanwhile, the PRPB permitting process continued. In December 1986 the PRPB, acting through Chairman Custodio, admitted a group of Ponce residents as intervenors. On January 15, 1987 the PRPB, in a private meeting with other government agencies, graded the project according to the Criteria. Under this rating system, if a project scores higher than 200 points, it is rejected. Sucesores' project scored 178.2 points, which qualified it for further consideration.

On February 10, 1987, a PRPB engineer informed Cerame Vivas that the PRPB would notify Sucesores of a meeting to discuss the Preliminary Environmental Impact Statement ("PEIS"). However, Sucesores was never notified.

On June 23, 1987, the PRPB issued a resolution, signed by defendant Custodio, noting that the project complied with the Criteria but directing Sucesores to submit a PEIS. Sucesores then requested an extraordinary meeting, pursuant to regulation, to determine the content of the PEIS. This request was denied on July 8, 1987, and Sucesores then filed a motion for reconsideration of the PEIS content requirements on the ground that the requested design and construction information should be reviewed at a later stage in the project. After the PRPB denied this motion, Sucesores filed a petition for judicial review in the Puerto Rico Superior Court. The court ordered the PRPB to conduct a hearing on the PEIS requirements. The PRPB did so on February 8, 1988, four months after the court's order. On September 9, 1988, the PRPB modified the content requirements of the PEIS, and Sucesores, while still contesting the revised content requirements, submitted the required document.

On June 29, 1989, the PDP mayor of Ponce wrote to Custodio expressing the municipality's opposition to the project. Finally, on August 16, 1989 the PRPB denied Sucesores' motion for reconsideration of the original denial of its petition. With respect to the hazardous waste facility, the PRPB cited fundamentally the same reasons it had given for the original denial. The PRPB found that the PEIS did not "clear up or discuss the questions on the possible environmental impact," that "there are grounds to believe that the project does constitute a risk for the environment and that it could have harmful consequences on the health and welfare of the residents of Ponce." The PRPB offered no findings of fact or conclusions of law to support its denial of the domestic waste permit. The entire process took four years.

B. The Residential Complex

While Sucesores' application for the waste disposal permits was pending, Cerame Vivas filed an application for another permit, this one a site permit to construct a "tourist residential complex" in Boqueron, a community approximately 30 miles to the west of Ponce. The complex was to consist of eight condominium units in three buildings. Cerame Vivas filed the site permit application on September 28, 1988, and it was denied about a week later, without notice or a hearing. The PRPB stated that it had denied the permit because of "an excessively high [population] density" and because the project "did not adjust to the conventional yard parameters [i.e., setback regulations] and a variation therefrom was not justified."

Cerame Vivas then moved for reconsideration and proposed altering the project to conform to the setback regulations, but stuck to the original population density. The PRPB affirmed its denial of the permit on December 7, 1988, without making any findings of fact or conclusions of law.

Cerame Vivas sought and obtained judicial review in the Puerto Rico Superior Court, which ordered the PRPB to make findings of fact and conclusions of law. The PRPB issued a resolution on March 13, 1989 reaffirming its denial of the permits on the ground that the sewer facilities in the area were not sufficient to accommodate the project. The question of sewer facilities had not arisen during the earlier administrative proceedings. The Superior Court denied Cerame Vivas's petition for judicial review and for reconsideration. The Puerto Rico...