Property Owners Score First-Round Victory In Case Against New York’s Abuse of Eminent Domain

John Kramer
John Kramer · January 18, 2001

Washington, D.C.-In a 27-page opinion issued today, U.S. District Court Judge Harold J. Baer issued a preliminary injunction against the Village of Port Chester’s use of eminent domain. In doing so, Judge Baer found that the property owners have a likelihood of success in their challenge to New York’s lack of personal notice to people whose property is to be condemned. The ruling forestalls the imminent threat of condemnation and destruction of the property of William Brody and gives a major boost to other property owners who are challenging the illegal taking of their properties by the government.

“This is a victory for fairness and due process in the exercise of one of local government’s most fearsome powers,” said Dana Berliner, senior attorney with the Washington, D.C.-based Institute for Justice, which represents the property owners in their challenge. “Every New Yorker is threatened by a system that can take away their property and their right to defend themselves.”

“I’m elated,” said property owner Bill Brody. “I think it’s great that these issues are going to be brought forward in a public forum. I’m very confident we will prevail.”

“For local governments and private developers who enrich themselves by this kind of illegal takings, this is a wake up call that the rules of the game are changing,” said Institute for Justice President Chip Mellor. “Fairness and constitutional protections are being restored.”

The Court did not issue an injunction with regard to the other two properties, finding that there was no imminent danger of the seizure of their buildings. Essentially, the Court found that the Minnichs were too early and St. Luke’s Church was too late to ask for a temporary injunction.

This lawsuit will determine whether government entities in New York State may take someone’s private property without ever giving the owner timely, individual notice, without which the owner is helpless to legally defend his or her right to keep the property.

The Institute for Justice represents three property owners in this case. William Brody owns commercial buildings in Port Chester that the city wants to take for a Stop ‘n’ Shop parking lot. William Minnich owns a custom woodworking business in East Harlem threatened by the Empire State Development Corporation’s East River Project. Pastor Fred Jenkins and his congregation have lost what was to be the permanent home of St. Luke’s Pentecostal Church to the North Hempstead Community Redevelopment Agency. All three property owners stand to lose their property through the abuse of eminent domain because New York State law does not require the government to notify property owners in a timely and direct manner when it plans to condemn property through eminent domain. It requires only that notification of a possible future condemnation be published in the legal notices section of the newspaper. This notice need not even mention the specific address of the property to be taken. If a property owner does not scour the legal notices section daily, he will likely miss the beginning of the 30-day window he has to challenge the condemnation. Of course, the notice does not mention the 30-day window at all. But by missing this 30-day deadline, he loses all rights to protest the condemnation at a later date.

In addition to the procedural nightmare created by New York’s eminent domain law, two of these condemnations also spotlight another growing problem in eminent domain: politically powerful private interests convince local governments to use their power of eminent domain to force people off land that is rightfully theirs. The Constitution was intended to prohibit such private-to-private transfers, but they have become a favorite tool in the marriage of convenience between influential developers and government bureaucrats.

The constitutions of both New York and the United States were designed to prevent property from being taken to benefit other private parties. But New York’s eminent domain procedure laws trick owners out of their opportunity to assert their rights. The procedures are designed so that New Yorkers lose the right to defend their homes and businesses long before the government tries to take them. New York’s sleight of hand with cherished property rights violates the due process guarantees of the U.S. Constitution. This lawsuit seeks to strike down New York’s unfair and deceptive procedures and prevent the condemnations of the Brody, Minnich and St. Luke’s properties.