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Here’s the latest in our continuing series of dirt law pilgrimages, where we visit the site of some of the more important cases in our favorite area of law.

As every dirt lawyer knows, you can see photos, read descriptions, and study plat maps. But when it comes to understanding about the property at issue, nothing substitutes for getting your shoes in the dirt on-site, seeing the area for yourself, smelling the air. Walking the earth.

We’ve visited the Kelo site, the cement plant in Boomer, the site of the first case in which the Supreme Court applied the Fifth Amendment’s Just Compensation requirement to states and cities (Chicago, Burlington), the Loretto building, Hadacheck’s former brick plant, the Nollan home, and more. Even Monet’s famous garden (yes, even that place had a property fight).

Just a few days ago, we noted the 98th anniversary of Nectow v. City of Cambridge, 277 U.S. 183 (1928), although we wanted to be on-site for that anniversary (like we were for the Mahon case), we were tied up in court, just down the road in Providence.

But after that appearance wrapped we headed towards Cambridge, Mass. Specifically, the corner of Brookline and Henry Streets.

After finding a place to park, it was time to scope out the site of the Nectow case, which, as the Supreme Court noted in its 1928 opinion, the master did in that case: “After a view of the premises and the surrounding territory, and a hearing, the master made and reported his findings.” Nectow, 277 U.S. at 186.

We endeavored to do the same.

And there it is, across the street from the northwest corner of Brookline and Henry.

The Locus

As the Supreme Court opinion described it:

When the zoning ordinance was enacted, plaintiff in error was and still is the owner of a tract of land containing 140,000 square feet, of which the locus here in question is a part. The locus contains about 29,000 square feet, with a frontage on Brookline Street, lying west, of 304.75 feet, on Henry Street, lying north, of 100 feet, on the other land of the plaintiff in error, lying east, of 264 feet, and on land of the Ford Motor Company, lying southerly, of 75 feet. The territory lying east and south is unrestricted. The lands beyond Henry Street to the north and beyond Brookline Street to the west are within a restricted residential district. The effect of the zoning is to separate from the west end of plaintiff in error’s tract a strip 100 feet in width. The Ford Motor Company has a large auto assembling factory south of the locus, and a soap factory and the tracks of the Boston & Albany Railroad lie near. Opposite the locus, on Brookline Street, and included in the same district, there are some residences, and opposite the locus, on Henry Street, and in the same district, are other residences. The locus is now vacant, although it was once occupied by a mansion house.

Nectow, 277 U.S. at 186-187.

“The locus contains about 29,000 square feet, with a frontage on Brookline Street … The effect of the zoning is to separate from the west end of plaintiff in error’s tract a strip 100 feet in width.”

This is that strip, or at least a part of it, looking south down Brookline from Henry.

“Opposite the locus, on Brookline Street, and included in the same district, there are some residences….”

Here’s one that is no doubt from that time, and existed at the time of Nectow (we estimate it’s the house noted as owned by Dallinger on the color map).

“The Ford Motor Company has a large auto assembling factory south of the locus …”

“The locus [is also] … on land of the Ford Motor Company, lying southerly, of 75 feet.”

There’s a parking lot there now where this part of Nectow’s “locus” was located.

There’s no actual sign or cornerstone that we could locate today that this was a Model-T plant. But you can kinda just tell, can’t you?

As the Library of Congress notes:

The Ford Motor Company Assembly plant was built in 1913 in the first stage of decentralization of Ford production from Detroit to sites around the country. The Northeast branch of the Ford Company was initially located in Boston and, following construction of a new plant on Memorial Drive, moved to Cambridge in 1914.

Here’s a more complete history: “Cars in Cambridge by Doug Brown.”

“…and a soap factory and the tracks of the Boston & Albany Railroad lie near.” On this map (from the Supreme Court record), you can see the location of the railroad tracks.

You can also see “[t]he lands beyond Henry Street to the north and beyond Brookline Street to the west are within a restricted residential district.”

On the opposite corner of Brookline and Henry from the Nectow property, Hastings Square is still there.

A view from the Nectow property towards the corner of Brookline and Henry. “The locus is now vacant, although it was once occupied by a mansion house.” The mansion house is now obviously gone, but the land is no longer totally vacant, either.

“The effect of the zoning is to separate from the west end of plaintiff in error’s tract a strip 100 feet in width.” The right side of the above photo (the area encompassing the sidewalk and the solitary tree) is the “west end of plaintiff in error’s tract.”

The building now on the site belongs to MIT, and houses the university’s mail services and Furniture Exchange.

Viewed from the southwest corner of the property at Waverly, towards the former Ford plant.

The site of the former “Telescope Mfy.” on the color map above is now the parking lot for the mail services facility and Furniture Exchange.

“…and opposite the locus, on Henry Street, and in the same district, are other residences.”

This is labeled the “Lovett” house on the color map above.

“The territory lying east and south is unrestricted.”

Beyond that stop sign at the corner of Henry and Sidney is “[t]he territory lying east and south” that “is unrestricted” and the railroad tracks.

As we wrote last week, we think that Nectow has not received the attention it is due. After all, it should be seen as the companion case to Euclid: it was authored by same Justice who wrote Euclid (Justice Sutherland), and there’s a straight line between all three parts of the Court’s 1920’s land use trilogy (Mahon, Euclid, and Nectow), two of which are strong reaffirmations of property rights. 

But today, Nectow is often dismissed as a byproduct of an earlier time, Lochnering of the substantive due process rational basis test, or even just too archaic to pay attention to.

But unlike Euclid, which was a facial challenge to zoning generally, Nectow was an as-applied challenge, asserting that placing some of Nectow’s land in a residential zone — and thereby causing a contract for sale of the land for non-residential uses to be cancelled — was arbitrary and capricious.

A master appointed to find facts determined the residential designation was out of sync with the mixed uses in the surrounding area. But the Supreme Judicial Court of Massachusetts took Euclid and Justice Sutherland at their word and concluded “who are we, mere judges, to question what Cambridge’s zoning officials say is in the public interest?” (We’re paraphrasing of course, but that was the vibe.)

But Justice Sutherland concluded that we need to pay attention to what the Court actually held in Euclid, reminding us that Euclid was a facial challenge, not as-applied:

The ordinance is an elaborate one, and of the same general character as that considered by this Court in Euclid v. Ambler Co., 272 U.S. 365. In its general scope, it is conceded to be constitutional within that decision. The land of plaintiff in error was put in District R-3, in which are permitted only dwellings, hotels, clubs, churches, schools, philanthropic institutions, greenhouses and gardening, with customary incidental accessories. The attack upon the ordinance is that, as specifically applied to plaintiff in error, it deprived him of his property without due process of law in contravention of the Fourteenth Amendment.

Nectow, 277 U.S. at 185.

The Nectow Court held that while zoning may be facially constitutional, it is unconstitutional if, when applying that zoning to a particular parcel, the government fails to show the classification and restriction on use bears a “substantial relation to the public health, safety, morals, or general welfare.” Id. at 188.

As the Court put it:

Nevertheless, if that were all, we should not be warranted in substituting our judgment for that of the zoning authorities primarily charged with the duty and responsibility of determining the question. Zahn v. Board of Public Works, 274 U. S. 325, 328, 47 S. Ct. 594, 71 L. Ed. 1074, and cases cited. But that is not all. The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare. Euclid v. Ambler Co., supra, p. 395 (47 S. Ct. 114). Here, the express finding of the master, already quoted, confirmed by the court below, is that the health, safety, convenience, and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question. This finding of the master, after a hearing and an inspection of the entire area affected, supported, as we think it is, by other findings of fact, is determinative of the case. That the invasion of the property of plaintiff in error was serious and highly injurious is clearly established; and, since a necessary basis for the support of that invasion is wanting, the action of the zoning authorities comes within the ban of the Fourteenth Amendment and cannot be sustained.

Id. at 188-189.

So yes, zoning as a concept is within the police power, but we must keep at the forefront the core principle that property rights are to be respected. Facts, and not some vague incantation of the rational basis test should serve as the standard.

As James Metzenbaum, the lawyer who represented the Village of Euclid later wrote:

It is essential that there be kept in mind the ever-true doctrine that the owner of property does have some inalienable rights. A corollary of this doctrine is that it is the duty of the lawyer to fight for the preservation of such rights and not to permit overly zealous zoning experts who draft ordinances nor obliging Councils who pass them, to promulgate legislation which is unreasonable or which unlawfully tends toward the divestment of the property owners’ constitutional rights.

See James Metzenbaum, The History of Zoning – A Thumbnail Sketch, 9 W. Res. L. Rev. 36, 42 (1957).

So here’s how we see it: go ahead and zone, government (Euclid). But do it carefully: it’s not carte blanche to do anything you want, and its gotta make actual sense (Nectow). And even if it does makes sense but nonetheless deprives the property owner of essential rights, you have to pay for the privilege (Mahon). 

Earlier this year at an event to mark the 100th anniversary of Euclid, several lawprofs (from across the police power spectrum) noted that we should be refocusing on Nectow and its limiting principles. So we are not alone.

Nearly a century has passed since the time the Court decided the case. As a reminder that this case involved real people and their rights, we also paid a visit to the final resting place of Mr. and Mrs. Nectow at the Temple Israel cemetery in Wakefield, about a 15 minute drive from the famous locus.

We’d like to think that if we were around back in the 1920s, Mr. Nectow might have been our client.

Thank you for fighting the good fight, Mr. Nectow. It now falls to use to bring your big win back into the public light.

Nectow v. City of Cambridge, 277 U.S. 183 (May 14, 1928)

Kelo site Ft Trumbull
Over there is where the “little pink house” was.
July 26, 2025.

Regular readers know that from time to time, we make what we call property or takings pilgrimages to the sites of famous cases. Inter alia: Kaiser Aetna, Nollan, Dolan, Loretto, Penn Central, Hadacheck, the High Line, Boomer.

Included in that are eminent domain cases of course, including Chicago Burlington, and Berman. 

With the recent 20th anniversary of Kelo v. City of New London just past, we thought it appropriate to revisit the site when we were in the neighborhood to see what’s up and what “progress,” if any, New London has made in effecting those plans it claimed to have, which necessitated the taking of Susette Kelo’s “little pink house.” For Professor Gideon Kanner’s thoughts on “Eminent Domain Projects That Didn’t Work Out,” check out his final journal piece, which includes details of the post-2005 Kelo situation. 

First up was a visit to the relocated Kelo House. As you may know, when the case was lost, the pink house was not demolished but rather relocated to a different New London neighborhood. 

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Here it is. Much different vibe in this neighborhood.

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There’s a sign, in case you didn’t know. 

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Same street number. A nice touch.
And a reminder “Not for Sale.”

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Quietly enjoying property. 

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The Kelo story.

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Still very pink. 

One you get your reassurances that indeed, the pink house survives, it’s time to go to the more significant location, the (now-former) site of the Kelo House in the Fort Trumbull neighborhood in New London.

The Supreme Court decision might be twenty years in the past, but apparently it is still an open wound locally. In the time we were on-site taking these photos, we met two local folks.

The first asked why we were taking pictures of vacant land. When we responded “I am an eminent domain lawyer, and this is the location of what might be the most famous eminent domain case,” she said, “you mean the Kelo case?” She proceeded to give us the (accurate) history of the case, how bad it was from her perspective, and how it was a shame that New London took the land, and then did nothing with it. 

Next, a passerby named Sean joined the conversation. He said he was a tenant in one of the Kelo-adjacent homes twenty years ago, and that he was thrown out of his residence as a result of the Supreme Court’s decision. He had very strong opinions, both about the taking and about what was done, and is being done now, with the land.  

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Where it was. 

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Looking across to where Pfizer was going to be. 

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View from the former Kelo property.
That vacant site of the Marina has recently been cleared.

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View out to the Thames Rivers.
Bonus points if you pronounce “Thames” like they do in New London.

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Fort Trumbull in the foreground,
river view in the background.

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Down the street from the Kelo property.
Recall that Ms. Kelo was not the only owner in the case.

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Historic Fort Trumbull, just across the street.

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A view of the Fort Trumbull flag, from the back side of the Kelo parcel.

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Well, this is new: a community rec center. 
Question: what community?

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Silent witness: the seagull abides. 

Continue Reading Property Rights Pilgrimage: The Kelo Property And House, Twenty Years On

As you may remember, from time to time we’ve visited the sites of well-known dirt law cases. Kaiser Aetna, Loretto, Mahon, PruneYard, Chicago Burlington, the High Line, Dolan, Nollan, Seneca Village, and Hadacheck are the ones that readily come to mind.

Yes, we have a lot of tech available that makes it pretty easy and inexpensive to “see” a location and get a sense of it without having to actually go there, but very often Google Maps or GIS just isn’t enough. As you property lawyers know, nothing helps in your understanding of a case or issues more than being on the ground at the site, feeling the earth beneath your feet, looking around at the environs, hearing the birds, smelling the air, taking a few of your own photos, talking to neighbors and others, just seeing what is nearby. There’s no substitute for being there.

In that spirit, we were in upstate New York last month en route to taking care of long-overdue family business in neighboring Vermont, and thought it might be worthwhile to take a detour over the Rip Van Winkle Bridge to the Town of Coeymans.

You might not have heard of that place, but any dirt lawyer worth their salt knows of the famous case situated there. The case where the “Defendant operates a large cement plant near Albany.”

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If you don’t know where that quote comes from, it is the opening sentence to to the New York Court of Appeals’ opinions in the famous nuisance case, Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 222 (1970).

This case is taught to first-year law students in either Torts or Property (if a law school still teaches Property in 1L, that is). We cover it in our Land Use class, of course, in the part of the course where we discuss private land use controls (the course isn’t solely about public land use regulations, but includes what we call “history and antecedents”). 

It has been many years since the decision, and even more years since what was then known as the Atlantic Cement Company built a big plant in 1962 about a mile outside the Village of Ravena.

Lawprof Daniel A. Farber tells us about Atlantic Cement in what we view as the definitive piece on the backstory of Boomer, The Story of Boomer: Pollution and the Common Law, 32 Eco. L. Q. 113 (2005):

Atlantic Cement, formed in 1959 under the name “Burwill Realty Company,” changed its name just before it began construction of the cement plant. Presumably, Atlantic used the original name to avoid alerting sellers to the special value that their land might have for a large industrial venture. Under the original name, Atlantic assembled a large tract of land near Albany, New York: a later tax appraisal lists it as 3,260 acres.

Atlantic was a joint venture of two mining companies. This was the joint venture’s only plant, but it had distribution centers all along the east coast, served either by rail or barge. Once in operation, the plant employed approximately four hundred people, and its assessed value was about half of the total assessed value of the entire township. Although the plant was unusually large, it was not alone in the region. The Albany area had other cement plants, because the area was rich in the necessary raw materials and the Hudson provided a handy source of river transportation.

When construction of the Atlantic cement plant began in 1961, the area was unzoned. Atlantic selected a location about a mile outside the village of Ravena, in a neighborhood composed of small houses and businesses such as the auto junkyard and body shop owned by Oscar and June Boomer.

Id. at 115 (footnotes omitted). The piece is definitely worth a read even if you are not able to visit the site.

Professor Farber describes the impacts the cement plant had on its neighbors’ use and enjoyment of their properties:

Despite these mitigation efforts, Atlantic had drastic effects on its neighbors, partly due to its quarrying operation rather than the cement manufacturing operation itself. The quarrying operation caused severe vibration for extended intervals. Using what was called the “millisecond delay” method, Atlantic used a series of blasts to remove layers of rock sequentially, so a new blast would go off just as the previous layer of rock was falling away. Thus, a sequence of explosions would continue for some period of time, seriously affecting neighboring landowners. For example, Floyd and Barbara Millious lived in a ranch house about half a mile from the quarry. The blasting caused large cracks in the walls, ceiling, and even the exterior of their house. Air pollution added to the troubles of the Milliouses and other neighbors. Fine dust from the cement operation coated the interior of their house with what the Milliouses described at trial as a “plastic-like coating.” Mr. Millious recalls that he had to scrape cement dust from his windshield with a razor blade and that the gutters on his house filled with so much dust that they fell off the house.” Joseph and Carrie Ventura, who lived about the same distance from the plant and the conveyer as the Milliouses, reported similar harm.

…

In short, the neighbors had all the disadvantages of living right on top of the San Andreas fault, without the California climate as compensation!

Id. at 116-117 (footnotes omitted).

Today, the plant is known as the Lafarge Ravena plant, and owned not by Atlantic Cement but by Holcim.

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From our look, much has changed in the intervening six decades.

According to this chamber of commerce story, this is the largest cement plant in New York, and has contributed materials to some very notable projects including Giants Stadium, the Tappan Zee Bridge, and the World Trade Center memorial. There’s an environmental consciousness on the plant’s public face. As the video above shows, at least on the day that we were there, the traffic from Route 9W was louder than the plant’s operation. That stuff coming out of the stack isn’t smoke, but steam.

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Thus, we did not witness a lot of nuisance-like activities. We couldn’t get an up-close view because the main site is blocked by a large hill or berm, and all the roads into the plant are private (and you know we respect private property).

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The plant today — or at least those parts you can see — from Route 9W looking south.

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Google Maps does give a good overview of the site and the area. 

Screenshot 2023-12-29 at 11-14-19 Google Maps

You know the litigation story: Boomer and his neighbors sued for a private nuisance. The trial court agreed this was a nuisance, and the question became remedy: damages or injunction? The trial court denied an injunction and awarded what seems like minimal damages. The Appellate Division affirmed. Off to the Court of Appeals.

The Boomer majority held that an injunction to stop the nuisance would deprive the area of a valuable economic resource — at least when compared to the benefits that Boomer and other plaintiffs provided — and thus the remedy would not be an injunction, but “permanent damages” to the plaintiffs’ use and enjoyment of their properties.

Thus it seems fair to both sides to grant permanent damages to plaintiffs which will terminate this private litigation. The theory of damage is the “servitude on land” of plaintiffs imposed by defendant’s nuisance. (See United States v. Causby, 328 U. S. 256, 261, 262, 267, where the term “servitude” addressed to the land was used by Justice Douglas relating to the effect of airplane noise on property near an airport.)

The judgment, by allowance of permanent damages imposing a servitude on land, which is the basis of the actions, would preclude future recovery by plaintiffs or their grantees (see Northern Indiana Public Serv. Co. v. Vesey, supra, p. 351).

This should be placed beyond debate by a provision of the judgment that the payment by defendant and the acceptance by plaintiffs of permanent damages found by the court shall be in compensation for a servitude on the land.

Id. at 228.

This has been viewed as an opinion driven by “law and economics” because it weighed the relative utility of the parties’ use of their properties. Many have criticized the decision as allowing one property owner to buy a right to pollute and cause a nuisance.

The dissenting Justice accepted the view that imposing the remedy of permanent damages rather than injunction was impressing Boomer’s property with what looked like a servitude, with the damages serving as just compensation. If that’s the case it was a taking, but one without the requisite showing that it was for a public use. Private takings — at least back in 1970 (not so much today) — were verboten in New York:

I see grave dangers in overruling our long-established rule of granting an injunction where a nuisance results in substantial continuing damage. In permitting the injunction to become inoperative upon the payment of permanent damages, the majority is, in effect, licensing a continuing wrong. It is the same as saying to the cement company, you may continue to do harm to your neighbors so long as you pay a fee for it. Furthermore, once such permanent damages are assessed and paid, the incentive to alleviate the wrong would be eliminated, thereby continuing air pollution of an area without abatement.

It is true that some courts have sanctioned the remedy here proposed by the majority in a number of cases, but none of the authorities relied upon by the majority are analogous to the situation before us. In those cases, the courts, in denying an injunction and awarding money damages, grounded their decision on a showing that the use to which the property was intended to be put was primarily for the public benefit. Here, on the other hand, it is clearly established that the cement company is creating a continuing air pollution nuisance primarily for its own private interest with no public benefit.

This kind of inverse condemnation (Ferguson v. Village of Hamburg, 272 N. Y. 234) may not be invoked by a private person or corporation for private gain or advantage. Inverse condemnation should only be permitted when the public is primarily served in the taking or impairment of property. (Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333, 343; Pocantico Water Works Co. v. Bird, 130 N. Y. 249, 258.) The promotion of the interests of the polluting cement company has, in my opinion, no public use or benefit.

Nor is it constitutionally permissible to impose servitude on land, without consent of the owner, by payment of permanent damages where the continuing impairment of the land is for a private use. (See Fifth Ave. Coach Lines v. City of New York, 11 N Y 2d 342, 347; Walker v. City of Hutchinson, 352 U. S. 112.) This is made clear by the State Constitution (art. I, § 7, subd. [a]) which provides that “[p]rivate property shall not be taken for public use without just compensation” (emphasis added). It is, of course, significant that the section makes no mention of taking for a private use.

In sum, then, by constitutional mandate as well as by judicial pronouncement, the permanent impairment of private property for private purposes is not authorized in the absence of clearly demonstrated public benefit and use.

Id. at 230-231 (Jasen, J., dissenting) (footnote omitted).

That smoke … er steam .. stack is pretty visible, and there’s a lot of traffic in the area that seems related to the plant. But otherwise, not a lot of evidence of nuisance-like effects.

From a nearby side road, for example, you can see the structure but it kind of blends in.

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If you go, the best vantage point is along Route 9W.

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And what of the Boomer and other plaintiff properties? There remain a few businesses in the area, as well as a few homes, but the biggest single use of the adjacent area is as a rather large centralized school. We took this shot from its massive parking lot).

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So was this side trip worth it? On the whole yes, even though it wasn’t very dramatic (or even very exciting except as a dirt lawyer thing). As we noted above, there’s just something about being on the site that helps you get a better understanding — a clearer mental picture — of a case and the issues.

We can’t say this one is worth a special trip, but if you are in the area or like us it is just a short detour, head on up route 9W and check it out. 

Boomer v. Atlantic Cement Co., 26 N.Y.2d 219 (1970)

Continue Reading Takings Pilgrimage: Boomer v. Atlantic Cement Today

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At first, you might not pay much attention to it. After all, it doesn’t really stick out — elevated rail lines aren’t that unusual in a big city. Street-level trains and pedestrians don’t mix well, and in the early 20th Century, New York State adopted a law which moved some of the lines above the street. Indeed, some portions of New York’s subway are still above grade, especially once you are out in the boroughs.

These elevated routes, like many rail lines, were not constructed on land the railroad owned in fee. Instead, the owners of the land granted an easement to the rail lines to use the land “for railroad purposes.” Which meant that the grant of easement remained only as long as the easement holder used the land for a railroad or related purposes. Again, nothing out of the ordinary there.

But then you remember that Manhattan’s last el ran decades ago. The elevated trains eventually were discontinued because they were “loud, dirty, messy, and slow.” But even after the railroads ceased operating, some of the structures were not dismantled and removed. The High Line, on Manhattan’s west side, is one of those. It was not an elevated passenger line, but carried freight, and opened for service in the 1930’s with the last train running some time in the 1980’s. Upon discontinuation of the railroad use, the easement should have been extinguished and the land revert to the fee owner.

But this is a rails-to-trails story, so you know what happened next. Eventually, the city converted the former rail line into a unique public park, full of green spaces, Manhattan views, performance venues, and a pedestrian walkway. All right there, in the middle of the big city.

But despite the abandonment of railroad uses and the public taking over the property, the family which owned the reversionary interest was not offered compensation for their property. So they brought suit in the Court of Federal Claims for a taking.

Those of you who follow the blog should be familiar with this tale, because it resulted in a Federal Circuit decision as well as a cert petition to the U.S. Supreme Court. We filed amicus briefs in both venues. 

Unfortunately, unsuccessfully, we might add. The Federal Circuit concluded that the Romanoffs’ predecessor-in-interest had granted a “general” easement to the railroad, which permitted it to use the land for virtually any purpose it desired, not just a railroad purpose. Thus, the Romanoffs could not complain when the High Line freight line ceased operations and the railroad abandoned the track, and the Romanoffs did not own property that had been taken. The court rejected the argument that New York law had never recognized such an animal as a “general” easement, and indeed, if an easement was interpreted to have granted unlimited use, it really wasn’t an “easement” at all, but was a transfer of fee simple title, something which plainly was not intended here.

But that’s the story.

So last time we were in New York City, we planned on paying a visit to the High Line to see for ourselves.

We did, and so should you. It’s a pleasant place, for sure. Gardens, flowers, nice places to sit and contemplate, just above the busy street.

But we ask this: are the below scenes really a “railway purpose,” Federal Circuit?

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There’s a rail line under there, somewhere.

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Only thing missing from this sanitized story is the fact that the Romanoffs were forced to donate their property to the enterprise. Hey, free money!

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Green spaces, and a garden-in-the-sky.

 

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The performance stage. Sure looks like a “railroad purpose” to us. As we wrote in our amicus brief, the High Line is used more for “tai chi, ‘gender bending performances from the club and theater stage,’ and ‘stargazing,'” than anything that could conceivably be considered a railroad purpose. 

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The train schedule. By that we mean the performance calendar.

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You know you are in New York by the views.

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No mistaking that building. 

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Watch out for the trains!

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Even local businesses play up the rail angle. This seems more of a railroad purpose than the use being made of the former rail line.

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Continue Reading New York City Uncompensated Takings Pilgrimage, High Line Edition

What do takings mavens think about when they hear “New York City” and “takings?” Probably the granddaddy case of them all, Penn Central. Or maybe Courtesy Sandwich Shop, or Loretto. All good ones, landmarks. 

But this post isn’t about a visit to the sites of those cases (not to worry, we’ll get to Grand Central soon), or even about a matter that ended up in the official reports, but about a New York eminent domain story that has been more lost to time, and which is now being rediscovered and recognized. It’s a visit to Seneca Village.


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You wouldn’t know it today, but just inside the boundary of what is now Central Park, right near the West 85th Street entrance, once was “the largest community of free African-American property owners in antebellum New York.”  Beginning in 1825, this locale was home to up to 250 residents in 70 houses, and, according to Central Park’s website:

The village was built in a desirable location, with proximity to the Hudson River’s ample fishing opportunities and to a natural source of clean water at a nearby spring. The village’s residences ranged from one-room homes to three-story dwellings made of wood and brick, and there are records of three churches and one school in the village as well. The 1855 census indicated that Seneca Village was home to approximately 250 residents and contained 70 houses. Life in Seneca Village was rural and its distance from the bustling streets of Lower Manhattan offered its residents a peaceful life.

Property ownership in Seneca Village provided an important gateway into democracy for African-American men. In 1821, New York State decreed that African-American men were required to possess $250 in property holdings and prove three years of residency in the state in order to be eligible to vote. Many residents became eligible to vote through land ownership in Seneca Village, including a cooper (barrel maker) named James Hinson. Census data shows that his property, including two lots of land and a two-story residence with an attached shed, was valued at $550. (Hinson had originally purchased his property for $325.)

But life in Seneca Park was not to remain idyllic.

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Because “[b]eginning in 1849, a small group of civic-minded New York visionaries began to agitate for the creation of a grand, artfully sculptured uptown park, modeled after the opulent public parks of Europe. They would eventually include James William Beekman, a State Senator; William Cullen Bryant, editor of the New York Evening Post; Andrew Jackson Downing, a landscape gardener and writer; Robert Minturn, a wealthy merchant; and Fernando Wood, the Mayor.”

When civic-minded civic leaders get together, you know what that means: someone’s property is likely up for grabs. Central Park was in, and Seneca Village had to go. Since the land was privately owned, you also know what that meant: eminent domain.

Like many eminent domain tales, it wasn’t a pretty one. In a familiar twist, the area was declared blighted, and the residents a nuisance: “As the campaign to create Central Park moved forward park advocates and the media began to describe Seneca Village and other communities in this area as ‘shantytowns’ and the residents there as ‘squatters’.” 

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As Columbia University’s web site about the Village notes, “[w]ithin two years, Seneca Village would be razed and its identity erased by the creation of Central Park.”

Today, there’s not much of anything on the surface left of Seneca Village. As noted, Columbia has undertaken an archaeological dig at the site, and the city has erected a small plaque at the site. Not many people, we observed, took the time to read the sign on the day of our visit. But that may have been because it was a warm summer’s day and no one except takings nerds were all that interested in historical details. The nearby water fountain received more attention.

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In addition to acknowledging the early history of Seneca Village, the sign also relates how “eminent domain” (why the unnecessary quotation marks, we can’t say) was used to dispossess the owners of their property to make way for the Park:

In 1853, the state legislature authorized the use of “eminent domain,” the taking of private property for public purpose. This unprecedented public acquisition of private land to create a major public park in the City of New York began in 1856, and at the time encompassed the land from 59th to 106th Streets between Fifth and Eighth Avenues. In 1863, additional parkland was annexed to include the area between 106th and 110th Streets. Those owners living within the boundaries of the proposed park were compensated for their property, though many protests were filed in New York State Supreme Court, as is often the case with eminent domain, when owners contest the amount of settlement. In view of recent research, it appears that residents and institutions of Seneca Village did not re-establish their community in another location.

In total, approximately 1600 people who owned, lived and/or worked on the 843-acre tract of land had to move when the Park was created.

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Check out these resources to find out more, or if you are in the city, the Parks & Rec Dept offer occasional tours:

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Continue Reading New York City Takings Pilgrimage, Central Park Edition

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Here’s what we’re reading today:

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Continue Reading Monday Reading: Pirates (Twice), Monet Land Use Pilgrimage

You take the uptown subway, the 1 train, destination the Bronx — the IRT for those of you who still refer to New York City’s subway lines that way — and exit at the 103rd Street Station, just before you cross the unofficial border to Harlem. Walking north on Broadway for a couple of blocks, turning on West 105th Street west towards the Hudson, crossing West End Avenue. 

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This is the formerly rural part of the city now known as the Upper West Side, then known as Bloomingdale. The Dutch, who originally named it that back when this was all New Amsterdam, didn’t spell it that way, of course. They wrote Bloemendael, because it reminded them of a flower growing area in Holland. Not too many flowers to be found here these days, unless you continue on towards Riverside Park. 

A quarter of a block down on your right, you come to a row of, well, row houses. Nice, and not exactly what you might call “affordable,” but in the heady world of New York real estate, they might even pass for modest: nothing about them is truly distinctive, and you really could be in quite a few of the city’s neighborhoods if you didn’t know better. 

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You slow down at 303. A five-story, eight unit co-op. Like I said, nothing really distinctive. But “303 West 105th Street, New York City” sticks in your mind. It reminds you of something. 

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And then you see it. Haphazardly nailed to the facade, zip tied and covered in decades of paint, snaking up the front of the building like an arteriosclerotic nerve system, it hits you: this is that building. 

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Your eyes trace the cable lines up to the roof. 

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Yes, the cable TV lines.  

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Confirmation: this is the building at issue in the U.S. Supreme Court’s regulatory takings case, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

As Justice Thurgood Marshall wrote for the Court’s majority,

Appellant Jean Loretto purchased a five-story apartment building located at 303 West 105th Street, New York City, in 1971. The previous owner had granted appellees Teleprompter Corp. and Teleprompter Manhattan CATV (collectively Teleprompter) permission to install a cable on the building and the exclusive privilege of furnishing cable television (CATV) services to the tenants.”

458 U.S. at 421-22 (footnote omitted).

Can you finagle your way up to the roof to see if evidence of the (in)famous cable boxes were still there (“Teleprompter also installed two large silver boxes along the roof cables. The cables are attached by screws or nails penetrating the masonry at approximately two-foot intervals, and other equipment is installed by bolts.”)?

Alas no, you can’t find the super to check whether a little “donation” to the building’s Holiday Fund might ease a door or two open.

That will have to be saved for a future visit, perhaps.

So you do the next best thing, Google Maps. Can you see the boxes? 

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This is the property that gave us the case that cemented the Supreme Court’s per se physical takings rule that “a minor but permanent physical occupation of an owner’s property authorized by government constitutes a ‘taking’ of property for which just compensation is due under the Fifth and Fourteenth Amendments of the Constitution,” as Justice Marshall wrote for the Court. 

Not all agreed. As the now-public conference notes reflect, Justices Blackmun, Brennan, and White had their reasons for not joining the majority. Justice Blackmun even pointed out that the opinion’s reference to the “two large silver boxes” was not to be found in the opinion of the lower court, “nor are their dimensions stated anywhere in the record.” Details!

Time has turned the Loretto case into an icon, something of a holy grail for property owners’ counsel asserting takings claims – get the court to agree there’s been a physical occupation, no matter how inconsequential, and the only question left is the remedy for the taking. 

The building, however, has no sign, no plaque, no indication that it was the location of one of the Supreme Court’s most consequential property decisions.

Just a weathered street number, and a few cables on the building as mute reminders. 

Conference Notes, Loretto v. Teleprompter Manhattan CATV Corp., No. 81-244 (1982) 

Continue Reading Takings Pilgrimage, Upper West Side Edition

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A nondescript corner of what could be just about any urban city street in America. Nothing of overwhelming interest, just the usual commercial buildings, traffic signals, and small businesses. A self-storage facility. Pretty typical in a Commercial district. Here, the “C-4 District.”

Nothing at all, in fact, to indicate that just over a century ago, this was the site of what was to become one of the most important land use cases in U.S. history — the place that gave us the first Supreme Court decision that dealt with how the expanding power to regulate the uses of property meshes with private property rights.

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For this area — the block southeast of the corner of Pico and Crenshaw Boulevards — was once a Los Angeles brickyard owned by Joseph C. Hadacheck.  

What is now the Arlington Heights neighborhood was once outside of the city limits. Indeed, Hadacheck’s title went back to the original Mexican land grant — as most Central and Southern California land titles do — to a former alcalde of the Los Angeles Pueblo. This parcel was originally a part of the massive Rancho Los Cienegas.

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Eventually the rancho was subdivided and parceled off, and Hadacheck, according to the U.S. Supreme Court’s opinion, purchased the parcel in 1902 because the clay deposits made it an ideal place to manufacture the bricks needed for the rapidly expanding metropolis. California, you see, “did not have great paving brick manufacturers like other states mainly because of the scarcity of good vitrified clay deposits.” This property was prime: as the Court noted, the “clay upon his property is particularly fine, and clay of as good quality cannot be found in any other place within the city where the same can be utilized for the manufacture of brick.” 

Today’s Bronson Avenue (pictured below) was then the driveway entrance to Hadacheck’s property.  

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Brickmaking, as you might expect, was a messy affair, involving large hole in the ground to dig out the clay, and fire-stoked drying kilns. When Hadacheck’s manufacturing plant was far from the city, the noise, dust, and smoke it produced was not a big problem. 

But Los Angeles was growing, and in 1909, the Hadacheck property was annexed by the city, and became subject to its jurisdiction. The surrounding land — the site of at least one other brickyard — came into the sights of the land speculators and developers. In the mid-aughts, the nearby area was developed as single-family homes. Some of these homes were, and remain today, pretty nice. Mostly arts-and-crafts style, if that sort of thing floats your boat. 

One of these developments — developed by “a syndicate of a dozen prominent business men” was an area they labeled “Victoria Park.” Had a nice ring to it, and today, the area is still called Victoria Park. 

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They built the homes around an oval street. One of the only two oval streets in LA. Even today. 

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They also apparently planted palm trees on that street. Lots of palm trees. 

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Tony residences nearby a noisy, smoke-and-dust-belching industrial site. Victoria Park, you see, is just a few blocks from the Hadacheck site and even closer to another brickyard, Hubbard & Chamberlain. The photo below shows how close. The Hadacheck site at the corner of Pico and Crenshaw was where the Bekins building and sign is, and the Hubbard brickyard was right across the street. 

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You land users can predict what this meant: a conflict between an existing possibly noxious use, and late-coming residents (whom today we might label “NIMBY’s.”). This might have resulted in a your run-of-the-mill tort nuisance case, with a claim by the residential owners that Hadacheck’s use of his property interfered with theirs, and a defense by him that he was there first, and thus they “came to the nuisance.” 

But it didn’t play out that way. As the U.S. Supreme Court noted in Hadacheck v. Sebastian, 239 U.S. 394 (1915), the City Council of Los Angeles, over the veto of Mayor George Alexander, used its police powers to adopt an ordinance prohibiting brickyards in “certain districts.” And when referring to “certain districts” the Council pretty much meant this area. Because the only two brickyards subject to this ordinance were Hadacheck’s and the other brickyard, Hubbard & Chaimberlain, located directly across Pico from the entrance to Victoria Park.  

Remember that “syndicate of a dozen prominent business men” who developed Victoria Park, whose residents were now overwhelmed by the nearby brickyards? One of those “business men” was none other than Josias J. Andrews, who just so happened to be a member of the Los Angeles City Council, and who chaired the Council’s Legislative Committee.

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According to The History of California and an Extended History of Los Angeles and Environs (1915), Mr. Andrews: 

… is a Progressive and he is altogether progressive in profession and practice in the broadest sense of the word. He was twice elected to the city council and during the time of his service was active in procuring the passage of various progressive measures. He was a strenuous advocate of the law which later as incorporated in the city charter limiting the height of new buildings, and was instrumental in having it passed.

Brickyards in other parts of LA where Councilmember Andrews didn’t have investments were not subject to similar ordinances, and even where there were conflicts with residences, existing brickyards were given several years to wind down. 

But not in this case. The ordinance made it a crime to continue to operate, and apparently Mr. Hadacheck tried to do other things with his land: he obtained a building permit for a two-story residential building on Pico, and there’s evidence he allowed the use of the clay pit as a dump site. But apparently, he kept up the brickmaking, because he was charged with a misdemeanor and convicted under the ordinance and was remanded to the custody of the LA police chief. 

You know the rest of the story: he brought a habeas corpus action challenging the constitutionality of his confinement, arguing that the regulations severely devalued his property (he argued that before the regulations, the property was worth $800,000, but after, only $60,000), and that he was being singled out. He also argued the land was not really useful for anything but brick manufacturing (a claim belied by the future uses of the site as single-family homes), as shown here, along Bronson Avenue:

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These aren’t homes of the Victoria Park standard, mind you, but still pretty nice.  

Even though the courts accepted Hadacheck’s argument that he was not creating a nuisance, he lost in the California Supreme Court, and eventually in the U.S. Supreme Court, which held that it didn’t matter that the brickyard wasn’t a common-law nuisance, because the city could exercise its police power to prohibit uses, even where those uses predated the regulation:

It may be that brickyards in other localities within the city where the same conditions exist are not regulated or prohibited, but it does not follow that they will not be. That petitioner’s business was first in time to be prohibited does not make its prohibition unlawful. And it may be, as said by the supreme court of the state, that the conditions justify a distinction. However, the inquiries thus suggested are outside of our province.

There are other and subsidiary contentions which, we think, do not require discussion. They are disposed of by what we have said. It may be that something else than prohibition would have satisfied the conditions. Of this, however, we have no means of determining, and besides, we cannot declare invalid the exertion of a power which the city undoubtedly has because of a charge that it does not exactly accommodate the conditions, or that some other exercise would have been better or less harsh. We must accord good faith to the city in the absence of a clear showing to the contrary and an honest exercise of judgment upon the circumstances which induced its action.

Hadacheck, 239 U.S. at 413-14.  

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The rest, as they say, is history: the Hadacheck decision became the foundation on which the constitutionality of all zoning law is built, and today, we still have yet to resolve completely the tension between the police power to regulate property, and the rights of private property owners. 

And what of Mr. Hadacheck? After he lost his brickyard business, what became of him? We don’t exactly know, for certain. But we do know that in a nearby cemetery, there’s a grave for one “J.C. Hadacheck,” who died in 1916 at the young age of 48, less then seven months after the Court issued its opinion.

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Is this the same “J.C. Hadacheck” who petitioned the Supreme Court? We’re not sure, but we wouldn’t be surprised. Not knowing for sure, our imagination wanders to a fanciful story where Mr. Hadacheck, having been played by the City Council, the NIMBY’s, and the courts, simply gave up the ghost after realizing that even though he made the bricks that built the city, his usefulness, and his time, had passed. 

Continue Reading Takings Pilgrimage, LA Edition: Police Power, The Zoning Game, And Nuisances

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The Nollans own a beachfront lot in Ventura County, California. A quarter-mile north of their property is Faria County Park, an oceanside public park with a public beach and recreation area. Another public beach area, known locally as “the Cove,” lies 1,800 feet south of their lot. A concrete seawall approximately eight feet high separates the beach portion of the Nollans’ property from the rest of the lot. The historic mean high tide line determines the lot’s oceanside boundary.

Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987)

From time-to-time, and when we’re in the neighborhood, we like to drop by the sites of familiar (and famous) takings and land use cases. Like Kaiser Aetna (in our own backyard), Dolan, and PruneYard. We’ve been there, done that. 

So there we were in Central California (Ventura County to be exact), and we’re driving up the coastal highway when around the bend comes the site of the Nollan case, the one where the California Coastal Commission tried to condition permission for Mr. Nollan to build a second story on his dream house on his giving the public access across the beach in front of his house (“makai,” as we in Hawaii say).

So here you go, some photos of the lot, the beach, the other areas described in Justice Scalia’s opinion, and the view from the road. These should give you a sense of what the case was about, and why it came out the way it did.

And yes, we snapped the beachside photos by only temporarily “physically occupying” the private beach, but we do recognize the gravity of our trespass. See 483 U.S. at 823 (We think a “permanent physical occupation” has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.”).

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A panorama from the ocean side, with “the Cove” on the right,
which shows the seawall and beach.

These effects of construction of the house, along with other area development, would cumulatively ‘burden the public’s ability to traverse to and along the shorefront.’ Therefore the Commission could properly require the Nollans to offset that burden by providing additional lateral access to the public beaches in the form of an easement across their property. 

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And one from the road side of the lot, showing the neighboring houses,
and how the houses generally obstruct views from the road to the beach.

On remand, the Commission held a public hearing, after which it made further factual findings and reaffirmed its imposition of the condition. It found that the new house would increase blockage of the view of the ocean, thus contributing to the development of “a ‘wall’ of residential structures” that would prevent the public “psychologically . . . from realizing a stretch of coastline exists nearby that they have every right to visit.”

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Looking east from the coastal road towards the nearby hills.
The main highway (U.S. 101) is behind that stand of palm trees. 

The Commission argues that a permit condition that serves the same legitimate police power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public’s ability to see the beach notwithstanding construction of the new house — for example, a height limitation, a width restriction, or a ban on fences — so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere.

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Space for a viewing platform, anyone?

JUSTICE BRENNAN argues that imposition of the access requirement is not irrational. In his version of the Commission’s argument, the reason for the requirement is that, in its absence, a person looking toward the beach from the road will see a street of residential structures, including the Nollans’ new home, and conclude that there is no public beach nearby. If, however, that person sees people passing and repassing along the dry sand behind the Nollans’ home, he will realize that there is a public beach somewhere in the vicinity. Post at 849-850. The Commission’s action, however, was based on the opposite factual finding that the wall of houses completely blocked the view of the beach, and that a person looking from the road would not be able to see it at all. 

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“Lateral access”

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“The Cove” (south of the lot)

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Faria County Park, “a quarter-mile north of their property”

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Small town.  

The Commission also noted that it had similarly conditioned 43 out of 60 coastal development permits along the same tract of land, and that, of the 17 not so conditioned, 14 had been approved when the Commission did not have administrative regulations in place allowing imposition of the condition, and the remaining 3 had not involved shorefront property. 

Continue Reading Another Takings Pilgrimage (Unconstitutional Conditions Technically, But Close Enough)