By:  Progress For WHB

When you start a business from nothing the risks are highest but the possibility for reward is greatest; when you buy an existing business the risks are more modest, but the possibility of rewards are also reduced.  In 1945 the asphalt plant at 100 Rogers Avenue was built, and for over 70 years that first venture has been rewarded.

We have been a nation of risk takers beginning with the colonization of Jamestown, Virginia in 1607.   In 1862 the Homestead Act rewarded the risk takers who were ready to settle the frontier.  With the passage of the Homestead Act  it was the policy of the government to give federal land away to settlers willing to risk everything, travel great distances, and build where there was nothing.

We support those who make something from nothing.  We even condone outright theft of private property to do it!  If a person takes a chance and occupies empty land, uses it, is obvious about it, and if the owner doesn’t throw him off the property within ten years he gets to keep that property without paying for it.  There is a risk.  If he improves the property, builds a home and clears the land he can still be ejected by the owner before the ten years has elapsed and he will have nothing.  This is the law of “adverse possession.”

When the asphalt plant on Rogers Avenue opened in 1945 the owner created a factory where there had been nothing.  At the same time he also planned to take air quality

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from people who owned neighboring property and it did it without ever paying for it. The plant owner took a risk that his neighbors might object, they didn’t, and for decades the risk paid off.¹⁾For those interested in Asphalt Plant operations and emissions see the 2000 EPA report.

Some may argue that the owner of the asphalt plant took the right to quality air from his neighbors by adverse possession.²⁾See Theory of Just Property: Homesteading 

Spoiling the air was a cost of making asphalt that was imposed on the neighbors.  The asphalt plant owner wasn’t shy about it, black clouds of smoke and noxious fumes billowed from the plant for years.  The neighbors got  air laden with soot and noxious chemicals; the owner got profits;  and the rest of us got asphalt to pave the roads³⁾the cost benefit of having an asphalt plant in proximity to the roads to be paved inured to the taxpayers who paid for the roads, and the temperature of the asphalt mix delivered to the job site was also more reliable.  See Transportation Consideration for Asphalt Pavements. at a time when the American love affair with cars was at a climax.

The neighbors still had the right to complain, but none ever brought a legal action to stop it.  The neighbors tolerated the noxious fumes from the asphalt plant but they never did forfeit their right to stop the nuisance. The owner of the asphalt plant had a continued risk that his neighbors would some day object.

With the passage of time many of the original neighbors either died or sold their property.  This provided some protection to the owner.  If  someone who had just moved to the neighborhood complained, the courts often would say the new neighbor was  “coming to the nuisance” and the court might protect the asphalt owner against this new neighbor’s protests.  But, even then, the fact that a complaint was a from a Johnny-come-lately would only be one factor the court would consider when deciding whether to order the nuisance to be terminated.  A Court would balance the rights involved and decide what was fair.

In 1985 our Village changed its zoning law and the asphalt plant was declared a non-conforming use.  This increased the risk for the plant owner.  Now the potential adversaries were not just individual neighbors, but also the village government.  At this time the Village could have also have adopted an “amortization law.”   The Court of Appeals had made a determination in 1977 that government can end a particular property use by putting the owner on notice that the use would stop at a specified date in the future.  This was called “amortization.”

Amortization allows the owner to continue to use the equipment and improvements to his property for a number of years to permit him the chance to recover most, if not all, of his investment in his equipment.  The owner had the amortization period to continue operations in preparation to either move his business, or change the business he was in at the same location.

In the year 2000 the inevitable occurred.    The Village passed its amortization law: 197-29(3).  The law provided that the plant could operate for another five years  which would mean the plant would close after 60 years of operation. The owner of the plant could use the property for other purposes, but the nuisance use of asphalt production would be completely ended in 2005. (Or so it was imagined.)

In the year 2000 Suffolk Asphalt Supply, Inc. commenced a legal action against the Village and it has been dragging on ever since with a trip to the Appellate Division for a decision  in 2009 and back to Riverhead for trial before Supreme Court Justice Elizabeth Emmerson who would have to decide whether the amortization period was valid.

“The validity of an amortization period depends on its reasonableness. There is no fixed formula for determining what constitutes a reasonable period. Instead, an amortization period is presumed valid, and the owner must carry the heavy burden of overcoming that presumption by demonstrating that the loss suffered is so substantial that it outweighs the public benefit to be gained by the exercise of the police power.”  Village of Valatie v. Smith, 83 N.Y.2d 396 (1994). 

As a measure of smart legislative draftsmanship by our village attorney, under the June 2000 village law, the amortization period for the asphalt plant would be extended during any legal challenge to the village’s asphalt amortization law.

The one year amortization period (five upon approval of our zoning board of appeals) would be extended further during any period of litigation challenging the law.  That was pretty smart because as the litigation ground on over the years the amortization period to be tested by the court became more and more defensible.  As trial was imminent the amortization period at issue had expanded to sixteen years.  The village by this time had an unassailable position and the asphalt plant gave up and discontinued the action.  Kudos to Richard Haefeli, Esq. the village attorney in 2000 who wrote that law.

There is one interesting twist.  On December 16, 2005 the Suffolk Asphalt Supply, Inc., along with its owner James Haney, and others were indicted for bid rigging in the sale of asphalt.  See indictment here.  Haney plead guilty on January 17, 2007.  Transcript of Guilty Pleas.  

On June 18, 2007 James K. Haney of Remsenburg was sentenced to:  pay restitution in the amount of $326,343.81; imprisonment for 8 months; and three years of supervised release.  After a small delay in surrendering Haney completed the incarceration on June 27, 2008.  See Memorandum to  Hon. Arthur D. Spatt by Senior U.S. Probation Officer.  

There is authority under both state and federal law for forfeiture of an instrumentality of a crime.  In this case the asphalt plant itself was used to commit the crime.  Such a forfeiture of the asphalt plant might have put a much faster end to the asphalt litigation.  That, however, was not within the legal power of the village board.  It is a legal authority vested in the United States Attorney for the Eastern District of New York and the Suffolk County District Attorney.  The asphalt plant at 100 Rogers Avenue is now closed.