Ortega Cabrera v. Municipality of Bayamon

• Decision Date: 09 September 1977
• Docket Number: No. 75-1481,75-1481
• Citation: 562 F.2d 91
• Parties: , 7 Envtl. L. Rep. 20,766 Jose ORTEGA CABRERA et al., Plaintiffs, Appellants, v. MUNICIPALITY OF BAYAMON et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 91

562 F.2d 91

10 ERC 1723, 7 Envtl. L. Rep. 20,766

Jose ORTEGA CABRERA et al., Plaintiffs, Appellants, v. MUNICIPALITY OF BAYAMON et al., Defendants, Appellees.

No. 75-1481.

United States Court of Appeals First Circuit.

Argued Feb. 14, 1977.

Decided Sept. 9, 1977.

Arturo Aponte Pares, Hato Rey, P. R., with whom Olaguibeet A. Lopez Pacheco, Hato Rey, P. R., was on brief, for plaintiffs, appellants.

Irwin Zemen, Santurce, P. R., for Manuel Aponte Borrero, defendant, appellee.

Jose M. Ramos, Bayamon, P. R., for Guillermo Campos, defendant, appellee.

Before COFFIN, Chief Judge, VAN OOSTERHOUT ^*, Circuit Judge, and CAMPBELL, Circuit Judge.

COFFIN, Chief Judge.

Plaintiffs are the occupants of four tracts of land in the Buena Vista Ward of the municipality of Bayamon, Puerto Rico. In January, 1972, the municipality opened a sanitary landfill near plaintiffs' properties, the operation of which interfered in a variety of ways with plaintiffs' peaceful enjoyment of their lands. Plaintiffs instituted this action to obtain injunctive and monetary relief from the municipality, its former mayor, Guillermo Campos, and his successor, Manuel Aponte Borrero. In January, 1974, the district court entered an injunction that essentially ordered the municipality to engage in construction at the dump site that would minimize the damage to plaintiffs' property. Following a separate hearing on damages, the district court set aside substantial jury verdicts rendered in favor of each of the plaintiffs against the individual defendants. Plaintiffs now appeal, contending that broader injunctive relief was required as a matter of law and that the district court erred in entering the judgment notwithstanding the verdict.

I.

The critical facts are set forth in the district court opinion granting the injunctive relief. 370 F.Supp. 859 (D.P.R.1974). We will summarize only those additional facts which are relevant to the issues now before us.

Beginning in the late 1960's, the municipality of Bayamon decided that it needed a new city dump. Because open air burning had been prohibited, the new dump was to be operated as a "sanitary landfill", a method of disposing of solid wastes which, if established and operated in accordance with sound engineering practices, will present no dangers whatsoever to the environment or to public health. At such landfills, wastes are deposited in a highly controlled manner. A portion of the site is first excavated. When the solid wastes arrive, they are compacted and spread in thin layers over prepared areas. The wastes will be covered daily, or more frequently if necessary, with at least six inches of top soil, and the cover material is itself compacted daily. When the site is completely filled with waste, additional topsoil is laid down and grass planted. At this point, there will be no traces of the solid wastes, and the land will be suitable for a variety of uses, normally recreational ones.

While "sanitary landfills" have been employed successfully throughout the United States, the Bayamon project was, by any standard, a failure. The primary, although not only, reason was that the planners selected a wholly inappropriate site for the landfill. Solid wastes ordinarily contain many contaminants and infectious materials. Since serious health hazards can result if such pollutants are permitted to enter water supplies, it is critical that sanitary landfills be located in places where there is no danger that water will pass through the solid waste and cause ground or surface water pollution.

The site the municipality selected could scarcely have been worse. Presumably because it wished the new dump to be close to the old one, the city located the landfill in the uppermost part of a ravine in a mountainous section of the municipality which enjoys a heavy average annual rainfall of between 75 and 80 inches. The site is right above the headwaters of a creek which flows into the La Plata River, one of Puerto Rico's largest sources of drinking water, and is both the situs of at least one major underground spring and the terminal point of several other creeks.

The record reflects, and the district court found, that this site was selected after several feasibility studies were performed, and after several official tribunals of the Commonwealth had acted favorably upon the proposal. But there seems to be no question but that the decision to go ahead with the dump at this site was reached in violation of numerous personal assurances which had been given various of the plaintiffs and in patent disregard of several provisions of local law, including Puerto Rico's Public Policy Environmental Act, 12 L.P.R.A. § 1121 et seq. See 370 F.Supp. at 862-63, 868-69. The individual ultimately responsible for the decision was the mayor of Bayamon, Guillermo Campos, but he relied in large part on the recommendations of his subordinates. While there were some Cassandra-like figures who warned of the danger, the record reflects that many of the municipal and other officials clearly favored the proposal.

The landfill opened in January, 1972, and sometime thereafter it reached its full operational capacity of 400 tons of garbage per day. The baleful effects of the dump began immediately. Water entered the solid waste mass from the several creeks that flowed into it, from the internal springs within it, and from the rainfall that seeped through the cover soil. Initially, the solid waste absorbed the water, but it eventually reached a point of total saturation. The addition of further water then resulted in the production of "leachate" that is, water which had percolated through a solid waste mass carrying with it contaminates in a soluble and suspended state. The leachate, which was yellowish brown, would ooze out the tail of the landfill into the headwaters of the creek, polluting it with contaminants which included unsafe amounts of arsenic, lead, mercury, fecal coliform, and fecal streptococci. Because of the leachate, the creek waters emitted malodors and turned a brownish color.

The dump was closed by court order in January, 1974, and thereafter, the maintenance of the landfill became sporadic, if there was any at all. The steady flow of water through the landfill caused erosion in the top soil, which was the most pronounced at the perimeters of the site. The result was that much of the solid waste was exposed, contributing to the noisome odors in the area and creating an environment highly conducive to rodents and insects. Because of the erosion, portions of the waste mass would fall into the creek and be carried downstream, exacerbating the already existing problems and adding garbage to the brown pools of leachate.

Plaintiffs all occupy land located within several hundred meters of the landfill. The creek which flows from the landfill site to the La Plata reservoir runs by or through three tracts of land: an 11.15 cuerda ¹ estate owned by Feliciano Baez which contains three separate residences; a 3.197 cuerda tract owned by Felix Diaz which included one residence and one shop; and a 6.763 cuerda estate owned by Jose Ortega Cabrera which contains three residences and a commercial store. The fourth tract, which is also owned by Jose Ortega Cabrera and which contains two residences and a commercial store, comprises seven cuerdas, is located adjacent to the dump, but is above the dump in the ravine. It appears that all four tracts are used for limited agricultural as well as residential and, in three of the tracts, commercial purposes.

The properties that have been most directly affected by the operation of the dump are those parcels adjacent to the creek that runs to the La Plata river. Prior to the establishment of the landfill, this creek had enriched plaintiffs' lives in a number of ways. Its water had been determined to be safe for drinking, so plaintiffs' families drilled wells next to it and received all their water from these wells. They also permitted their animals to drink from it. Equally significantly, the creek was used for recreation. For some fifty years, the plaintiffs had swum, boated, and fished in it. The opening of the dump, of course, ended all that. The toxic substances in the water preclude its use for any domestic purposes indeed, the farm animals that drank from it died. The brown, toxic leachate and garbage not only make it impossible to use the creek for recreational purposes, but also have converted the creek into a source of stench and into a health risk. There is a suggestion in the record that the pollution of the creek has created a situation in which it is imperative that the plaintiffs install fences to prevent animals or children from approaching the creek.

The parcel that is not adjacent to the creek has been affected as well. Quite apart from the pollution of the creek, the dump, in its present condition, has made the immediate surrounding area a far less pleasant place to live. The exposed garbage emits odors and attracts rodents and insects, creating a nearby health hazard.

There is very specific evidence concerning the extent to which each parcel had been damaged. A real estate appraiser testified and fixed the total damage to the four parcels at approximately $191,000, the diminution in value ranging from approximately 55 percent to approximately 30 percent per parcel. The lion's share of the loss of value $116,828 resulted from the fact that, in the appraiser's view, the presence of the dump in the area made the land unsuitable for what had heretofore been its highest and best use: a residential subdivision. Although this was deemed the optimal use for the land, it is notable that the area had never been zoned to restrict any uses inconsistent with the establishment of such a subdivision and that there was no evidence that such subdivisions were likely to be established anywhere in the area in the foreseeable future. The most significant feature of the appraiser's...