His Fight Changed New York’s Eminent Domain Law

John Kramer
John Kramer · March 16, 2007

Arlington, Va.—New Yorkers must challenge the taking of their property through eminent domain before the government ever actually uses the power against them. A federal trial to be held on Monday, Tuesday and Wednesday [March 19-21, 2007] seeks to vindicate the rights of one of the many property owners who has fallen victim to this purposefully convoluted system.

The trial is a continuation of Port Chester, N.Y., property owner Bill Brody’s six-year battle, which so outraged the New York Legislature that it changed the state’s eminent domain laws to require mailed notice to property owners of the threat to their land and better informing them of their constitutional rights. Despite the amendments to the law, New Yorkers still must challenge the use of eminent domain against their property months or even years before the government ever actually moves to take the land.

The trial will take place at the U.S. Courthouse, 500 Pearl Street on Foley Square, Courtroom 23B, in New York, N.Y. It will start at 9:30 each morning.

While Bill Brody was restoring four abandoned buildings in Port Chester, the village issued him permits but never once informed him that in the end it planned to take his buildings, bulldoze them, and hand the land over to a private developer for a Stop & Shop supermarket parking lot. Instead of mailing Bill notice of the imminent loss of his rights, the village published a legal classified ad that didn’t mention anything about the fact that property owners would be waiving their rights if they didn’t file a lawsuit within 30 days. Now, six years into his legal fight—and after scoring two victories in federal appeals courts overturning various trial court decisions—Bill Brody remains in federal court fighting for his rights and his property.

“New York’s eminent domain procedures are unconstitutionally rigged against property owners,” said Dana Berliner, a senior attorney for the Institute for Justice, which represents Brody and last year won a unanimous Ohio Supreme Court ruling limiting eminent domain in that state. “Unlike most states, where property owners can challenge the constitutionality of a taking when the government files condemnation papers, New York requires property owners to bring challenges at the time the project is approved. From the time the government issues what is called a ‘determination and findings,’ which basically declares that the project will be a good idea, a property owner has only 30 days to challenge any possible future condemnation. The worst part of all is that, before this lawsuit forced the Legislature to change the law, the government didn’t have to give property owners any notice that their rights were expiring.”

In 2005, the 2nd U.S. Circuit Court of Appeals found that New York’s former statute violated the Due Process Clause of the Constitution—namely, that it did not provide property owners with sufficient notice of the fact that their rights were expiring. Despite this victory, the Village of Port Chester still insists that Brody isn’t entitled to recover anything because he had “actual notice” that he was losing his rights.

“While the village uses the words ‘actual notice,’ they don’t actually mean them, and that is a central part to the trial that will be held next week,” said Bob McNamara, an Institute for Justice attorney. “The village doesn’t claim that anyone actually gave Bill the notice he was entitled to—no one mailed him a letter telling him he would lose his rights in 30 days; no one called him to tell him to sue now or forever hold his peace. Instead, the village claims that Bill should have figured out what was going on for himself. But that is not what the Constitution requires. The Constitution requires that the government give people notice and a meaningful opportunity to be heard before it can take away their rights. The village is essentially arguing that Bill doesn’t deserve to recover his property because he failed to chase down the government and ask it if it planned to violate his rights that day. That is a dangerous argument, not just to Bill’s rights, but to the entire idea of due process.”

“Your property isn’t just your property; it is your future. It is your dream of a better life,” said Chip Mellor, president and general counsel of the Institute for Justice. “Bill has been fighting for six years for what most Americans take for granted—the right to own a piece of property and decide for himself if and when he ever sells it. His property was taken away from him by force so a wealthier company could make money off of his land. That kind of naked abuse of government power has no place in our nation. The courts must restrain this power if mayors and city councils won’t.”

Berliner concluded, “It is obvious to any ordinary New Yorker that the government shouldn’t start the clock ticking on any legal action a property owner should take to defend his or her property until the government actually moves to take it. But the way things stand now in New York, the government starts the clock ticking months or even years before you or even the government knows whether eminent domain will ever be used. The law might as well demand property owners use a crystal ball to see if the government will ever use eminent domain in the future and fight that taking years before it ever occurs.”