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Ortega Cabrera v. Bayamon, Municipality of

Citation: 7 ELR 20766
No. No. 75-1481, 562 F.2d 91/10 ERC 1723/(1st Cir., 09/09/1977) upheld in part, remanded in part

The court remands the case to the district court for a determination of whether operation and deterioration of a municipal landfill have caused a partial taking of plaintiffs' nearby land. Plaintiffs own parcels next to land that Bayamon wished to use for a sanitary landfill. Toxic wastes eventually leached out of the landfill and polluted streams near plaintiffs' land and wells on their land. The district court found that the operation was a nuisance under local law and ordered defendants to perform "necessary remedial construction." This order was never implemented, but at a subsequent jury trial for damages, the court entered a judgment holding defendants immune from $438,000 damages assessed by the jury. On appeal, the court of appeals holds that plaintiffs cannot receive broader injunctive relief — relocation or condemnation — than what the district court decreed. The district court properly exercised its equitable discretion in this matter. Plaintiffs are not entitled to undo the project under the Puerto Rico Public Policy Environmental Act. Also, mere diminution in value in plaintiffs' land is not sufficient to require condemnation because governmental action that destroys merely speculative economic value does not constitute an uncompensated taking of private property. Since plaintiffs' remedy is rooted in state law, they cannot receive damages under the federal civil rights statutes. The case is remanded for a determination of defendants' responsibilities under the district court decree and for consideration of plaintiffs' partial taking claim.

Counsel for Plaintiffs-Appellants
Arturo Aponte Pares, Olaguibeet A. Lopez Pacheco
Box 2318, Hato Rey PR 00919
(809) 766-9342

Counsel for Defendant Guillermo Campos
Jose M. Ramos
P.O. Box 67, Bayamon PR 00619
(809) 785-0878

Counsel for Defendant Manuel Aponte Borrero
Irwin Zemen
Suite 909, 1st Federal Bldg., San Juan PR 00909
(809) 722-2043

Before Coffin, C.J., Van Oosterhout* and Campbell, JJ.