Nestor Colon Medina & Sucesores Inc. v. Custodio

758 F. Supp. 784, 1991 U.S. Dist. LEXIS 2946, 1991 WL 31146
CourtDistrict Court, D. Puerto Rico
DecidedFebruary 8, 1991
DocketCiv. No. 89-1371 GG
StatusPublished
Cited by2 cases

This text of 758 F. Supp. 784 (Nestor Colon Medina & Sucesores Inc. v. Custodio) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nestor Colon Medina & Sucesores Inc. v. Custodio, 758 F. Supp. 784, 1991 U.S. Dist. LEXIS 2946, 1991 WL 31146 (prd 1991).

Opinion

OPINION AND ORDER

GIERBOLINI, District Judge.

Before the court is defendants’ motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.1

I. INTRODUCTION

This is an action involving the denial of permits to build a hazardous and toxic waste disposal facility and a tourist residential complex by the Puerto Rico Planning Board. Pursuant to Title 42 U.S.C. § 1983,2 plaintiffs seek declaratory and in-junctive relief, compensatory and punitive damages, and costs and attorneys’ fees for alleged violations of plaintiffs’ rights of freedom of expression and association, and rights to substantive due process, procedural due process and equal protection of the laws as guaranteed under the First and Fourteenth Amendments of the United States Constitution.

Plaintiffs are Néstor Colón-Medina & Sucesores, Inc. (“Sucesores”) and Dr. Máxi-mo Cerame-Vivas, his wife Maria J. Colón, and their conjugal partnership. Sucesores owns a parcel of land of approximately 259.09 cuerdas3 in Marueno Ward, Ponce, where it intended to develop a hazardous and toxic waste disposal facility and a domestic waste disposal facility. The Cer-ames owns a 1,248 square meter lot in Boquerón Ward, Cabo Rojo, where they intended to develop a tourist residential complex.

Defendants Patria Custodio, Lina Dueño and Santos Negrón, are respectively, the Chairman, Vice-Chairman and Associate Member of the Puerto Rico Planning Board (“PRPB”) of the Commonwealth of Puerto Rico. They are being sued in their individual and official capacities. The defendants were appointed to their respective positions in the PRPB by the current Governor of Puerto Rico, who is one of the leaders of the Popular Democratic Party (PDP). Co-plaintiff Dr. Cerame Vivas is a prominent member of the opposition party, the New Progressive Party (NPP).

The PRPB is an agency of the government of Puerto Rico organized pursuant to Law No. 75 of June 24, 1975, as amended, 23 L.P.R.A. § 62 et seq., with the general purpose of guiding the integral development of Puerto Rico and promoting the general welfare in the use of land and other natural resources. Id. at § 62c. Under these powers, the PRPB approved Resolution JP-236, which requires persons seeking to develop projects in non-zoned areas to petition the Board for a permit approving the project.

II. SUMMARY JUDGMENT

In determining whether summary judgment is appropriate, the court must view the record in the light most favorable to the party opposing the motion, and indulge all inferences favorable to that party. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, [788]*788106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986); Santiago Hodge v. Parke Davis & Co., 909 F.2d 628, 633-34 (1st Cir.1990); Amsden v. Moran, 904 F.2d 748 (1st Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). Summary judgment may be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989).

Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) establishes that the party moving for summary judgment has the initial burden of showing “the absence of a genuine issue concerning any material fact.” Id. at 159, 90 S.Ct. at 1609. See generally Louisell, Hazard & Tait, Cases and Materials on Pleading and Procedure: State and Federal 170 (6th ed. 1989) (“[A]s the Court stated in Celotex, the nonmoving party does not necessarily have to produce evidence in a form that would be admissible at trial. And, as the Adickes Court said, the nonmoving party does not have to adduce evidence at all until the moving party satisfies its initial burden of showing the absence of a genuine issue of fact”). If the movant shows that there is an absence of evidence to support the non-moving party’s case, the burden shifts to the non-movant to establish the existence of a genuine material issue. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

For the purpose of deciding defendants’ motion for summary judgment, we examine the facts in the light most favorable to the non-moving party, in this case, plaintiffs. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986); Santiago Hodge v. Parke Davis & Co., 909 F.2d 628, 633-34 (1st Cir.1990); Roy v. Augusta, 712 F.2d 1517 (1st Cir.1983). Applying this standard, and after an extensive review of the record, and according the non-moving party the indulgence required, we find that there are no disputed issues of fact precluding the entry of summary judgment in favor of defendants.4

III. COUNT ONE: THE HAZARDOUS AND TOXIC WASTE DISPOSAL PROJECT

Pursuant to resolution JP-236, on December 10,1985, co-plaintiff Sucesores filed a petition with the PRPB for a site permit on its parcel located north of Ponce to build two projects: a facility for the handling, treatment, recovery, destruction and disposal of hazardous and toxic waste and a facility for the treatment, recovery and disposal of domestic waste.

By resolution of January 29, 1986, the PRPB denied Sucesores’ application for a site permit without a hearing. The toxic and hazardous waste facility was rejected on the grounds that the application was not in accord with Puerto Rico’s land use and public policy for siting hazardous waste facilities. On February 12,1986, Sucesores filed a petition for reconsideration of the January 29,1986 resolution with the PRPB.

By resolution issued on March 6, 1986, the PRPB re-opened plaintiffs’ application for a site permit. The PRPB requested [789]

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