Private Property Must Be Respected Even In The Empire State

May 23, 2008

November 2000


Private Property Must Be Respected Even In The Empire State

By Dana Berliner

The abuse of eminent domain–where government takes private property against the owner’s will–is a nationwide problem. When IJ began litigating in this area, we had no idea we would be flooded with calls and letters from property owners being subjected to government confiscation of their homes or businesses, often for the benefit of private parties.

We receive many requests for our help in fighting abusive attempts by government to confiscate private property. Yet we can take only a few of these cases at any given time. So we were particularly excited to be able to challenge three outrageous uses of eminent domain in a single federal lawsuit in New York, filed October 4.

Even though the U.S. Constitution limits taking property for “public uses,” years of judicial deference have allowed government agencies to condemn property for the benefit of private parties. IJ is committed to restoring this important constitutional restraint on the power of government to condemn private homes and businesses.

Owners always face an uphill battle when challenging the government’s confiscation of their property. But New York’s eminent domain procedures deprive owners of even the ability to make those arguments. In almost every state, condemnation proceedings begin when the government sues to acquire someone’s private property. At that point, the owner can object, arguing, among other things, that the condemnation is not for a public purpose, that the land being taken is not blighted, and that the government does not have the authority to take the property.

In New York, by the time the government sues to acquire property, owners already have been deemed to have waived all their rights. If an owner tries to object that a condemnation is not for a public purpose, he is told that there was a notice published in a newspaper’s legal notices section sometime in the past ten years. He had exactly 30 days after that newspaper notice to appeal, although the notice doesn’t mention any right to appeal or that this was his one and only opportunity to challenge the government’s right to take his property. In New York, condemning agencies do not have to mail a copy of this notice to owners, tell them about the right to appeal, or give them a proper hearing to argue their case.

This system is perfectly designed to prevent owners from raising any objections they may have to the condemnation of their property. Not surprisingly, owners frequently miss their 30-day window, and by the time the government comes to take their property, all rights to object have been waived. All that is left is an argument about price.

When we learned about New York’s procedures, every IJ lawyer had the same reaction: “But that violates due process!” And thus, our lawsuit challenges New York’s Eminent Domain Procedure Law on the grounds that it violates due process by failing to give owners proper notice and a hearing, thereby depriving them of the right to challenge the condemnation of their property.

IJ represents property owners in three different New York condemnation projects. William Minnich and his nephew, Bill Minnich, own Minic Custom Woodwork in East Harlem, a business that has been in their family for more than 70 years. Their custom-made furniture and cabinetry is known throughout the nation, and their work appears in many museums, including the Metropolitan Museum of Art. The Empire State Development Corporation, a New York State agency, plans to condemn their building and transfer it to a private developer for a Home Depot parking lot.

Bill Brody buys buildings and renovates them. Four years ago, he purchased several adjacent buildings in Port Chester, New York, only a few minutes from his home, as an investment in the future for his wife and three small children. The buildings were in total disrepair, but Brody believed that Main Street held promise. He spent the next few years completely renovating and restoring the buildings. Just as he finished, the Village of Port Chester announced it would condemn his buildings and hand the land over to a private developer to turn it into part of a Stop ‘n Shop and its parking lot.

Pastor Fred Jenkins formed St. Luke’s Pentecostal Church in the Town of North Hempstead back in 1979. The church has been leasing space for years as it saved to buy a permanent home. In 1997, St. Luke’s finally purchased a piece of property with a partially constructed church already built. The Church spent the next two years seeking the Town’s permission to complete the construction. And then, shortly after the Church finally obtained a court judgment granting a necessary permit, the Town’s Community Development Agency (CDA) moved to condemn the property. The CDA plans to pay a mere $80,000 as “just compensation” for the property, $50,000 less than the Church actually paid to purchase it.

Each of these owners missed their deadline for challenging the condemnation of their property. Both the Minnichs and Brody tried to follow the process, but they still did not realize that they needed to file an appeal from the newspaper notice. In the case of the Church, the newspaper notice was evidently published in 1994, three years before St. Luke’s even bought the property.

New York’s system is so bizarre that it is hard to even explain it. And if lawyers have difficulty making sense of the process, a layperson doesn’t stand a chance.

New York’s sleight of hand with cherished property rights violates the due process guarantees of the U.S. Constitution. Our lawsuit seeks to strike down New York’s unfair and deceptive procedures and prevent the condemnations of the Minnich, Brody and St. Luke’s properties.

Dana Berliner is a senior attorney for the Institute for Justice.

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