(12/7/2005)

Businessman Gets Victory Against New York Eminent Domain Abuse

Court Declares Taking of Property Without Personal Notice Unconstitutional

Arlington, Va.—The 2nd U.S. Circuit Court of Appeals handed small businessman Bill Brody a victory in his five-year, nightmarish struggle against eminent domain abuse on December 5.

The court ruled that the Village of Port Chester violated his 14th Amendment right to due process of the law by condemning his property for private development without even giving him personal notice of his one opportunity to challenge the condemnation. That lack of notice meant, under New York law, that Brody forfeited all legal rights to challenge the taking of his property before he even knew he was losing anything.

“The 2nd Circuit confirmed what we’ve been saying all along: New York’s notice procedure was utterly inadequate,” said Dana Berliner, a senior attorney at the Institute for Justice, which represents Brody for free. “The Court confirmed that people do indeed have the right to challenge whether the government can take their property, and government agencies can’t hide the ball to deprive owners of that right.”

The Village’s only notice to Brody was a fine-print classified ad in the newspaper that failed to even mention his property individually. The Court held that, at the very least, individual notices must be mailed to property owners and that notices must mention the 30-day period property owners have to challenge the taking or lose their legal rights.

Writing for a unanimous 3-judge panel, Judge Richard C. Wesley declared, “Given the constitutional significance of the public use requirement and the brief period allowed for reviewing the condemnor’s public use determination, we believe that due process requires more explicit notice than that given to Brody.”

Brody’s case challenged New York’s Eminent Domain Procedure Law (EDPL), which, until last year, was the most unfair and least protective law affecting property owners in the nation. Brody had renovated and then fully leased four abandoned buildings in Port Chester to support his family only to have the Village take those properties and give them to a private development company, G&S, for a Stop & Shop parking lot. Brody’s case generated such outrage that New York changed its law, but that change didn’t get Brody’s property back. Today’s ruling sends the case back to the district court where Brody can try to get his property back or receive damages. (His property was seized and his buildings demolished last year.)

“This has been an incredibly long ordeal for Bill Brody,” said IJ President and General Counsel Chip Mellor. “But home and business owners can take comfort and inspiration in the fact that even in the face of terrible odds and tenacious adversaries, the rights of property owners will finally be vindicated.”