March 2001

IJ Scores Opening-Round Victory In New York Eminent Domain Challenge

By Marni Soupcoff

It’s IJ one, New York bureaucrats zero.  On January 18, 2001, the Institute for Justice scored an opening-round victory on behalf of New York property owners when U.S. District Court Judge Harold Baer granted a preliminary injunction against the Village of Port Chester, New York.  The injunction prevented the Village from using its power of eminent domain against property owner William Brody, pending the outcome of the ongoing constitutional challenge, brought by the Institute for Justice on behalf of Brody and two other New York property owners, to New York’s Eminent Domain Procedure law.

In his 27-page opinion, Judge Baer found that Brody is likely to succeed on the merits of his case challenging the lack of personal notice granted New York property owners whose land is taken by the government.  The ruling gave hope to all New York property owners and granted Brody a reprieve from the threat of government condemnation and destruction of his Port Chester properties, a peril that had loomed imminent until Judge Baer’s decision.

William Brody bought his Port Chester buildings four years ago as an investment to support his wife, Carolyn, and his three young daughters.  He spent years renovating and restoring the structures, but just as he finished, the Village of Port Chester announced that it would condemn the buildings and give the land to a private developer to turn into part of a Stop ‘n Shop and its parking lot.  Until Judge Baer’s preliminary injunction, the Village could have taken and destroyed Brody’s property at any time, even while the judge was considering the merits of the current suit.

This early victory is an important one because so much is at stake.  Ultimately, IJ’s lawsuit will determine whether government entities in the Empire State can take private property to give to other private parties without giving the owner timely, individual notice.  Under the current law, an owner is helpless to defend his constitutional rights because he is never notified of the 30-day period that is his exclusive opportunity to challenge the condemnation of his property.  In a cruel sleight of hand, when New York notifies an owner that it is taking his property, it also tells him that it is too late to put up any legal defense to the taking–a practice that flies in the face of the Constitution’s Due Process Clause, which requires the government to provide notice and a hearing before taking private property.  This suit will, therefore, decide whether New Yorkers receive the meaningful and direct notice they are constitutionally due.

In the meantime, the case continues.  Taking issue with the judge’s injunction, the Village of Port Chester has given notice that it will appeal Judge Baer’s order to the U.S. Court of Appeals for the Second Circuit.  As the appeal and the rest of the litigation progress, the Institute for Justice will keep up the good fight, sound in the knowledge that William Brody’s property is safe while the remainder of the case plays out.

Marni Soupcoff is a staff attorney with the Institute for Justice.