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."
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.
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.
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).
The plant today -- or at least those parts you can see -- from Route 9W looking south.
Google Maps does give a good overview of the site and the area.
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.
If you go, the best vantage point is along Route 9W.
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).
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.
