New York Makes Eminent Domain Law More Fair

John Kramer
John Kramer · September 17, 2004

Washington, D.C.—This week, New York Governor George Pataki signed into law a significant improvement in the way New York uses eminent domain. Now, city and state agencies must actually inform home and business owners about the process. Up until now, the law had only required governments to notify property owners by posting classified ads in a newspaper; no individual notice had been required. And the notices didn’t tell owners anything they needed to know to defend their rights.

The change in the law comes after years of advocacy in court by the Institute for Justice, which fights eminent domain abuse in New York and nationwide.

New York has an extremely unusual eminent domain process. When a city is considering a development project, it holds a hearing at which members of the public may speak. After the hearing, the city issues a document called a “determination and findings,” which states that the acquisition of land for the project is for a public purpose. At that point, the city has no idea when or if any particular property will be taken. If it is a large, multi-phased project, a taking could happen anywhere in the next 10 years. Nevertheless, owners whose land might someday be condemned for the project have exactly 30 days to challenge that possible future condemnation.

And up until this week, the government didn’t even have to tell owners about it. Instead, the law only required that a notice be published in the “legal notices” section of the newspaper. It didn’t have to contain property addresses or say anything about possible challenges or the 30-day window. Not surprisingly, ordinary people—the kind who were not eminent domain lawyers—did not know anything about this bizarre scheme and missed the 30-day window.

Under the new law, A11167, the government must mail notices about the hearing and about the determination and findings, not just publish in the newspaper. Even more important, the notice must actually tell owners that their rights are at stake. It tells them the significance of the hearing and about their opportunity to challenge whether the government can take their property.

With bipartisan sponsorship from Assemblyman Richard Brodsky and Senator Vincent Leibell, the bill passed the New York Assembly and Senate by a unanimous vote. It is the third such bill in the legislature. The first one passed the Assembly but died in the Senate. Last year, Governor Pataki vetoed a similar bill, citing concerns that giving notice of their rights to everyone who might be condemned would, he claimed, be too expensive.

The law that was just changed has been the subject of an ongoing federal lawsuit by the Washington, D.C.-based Institute for Justice challenging that the lack of notice violated the due process guarantee of the U.S. Constitution. Bill Brody learned in 2000, when the Village of Port Chester condemned his commercial building, that his one opportunity to challenge whether the government could take his property had occurred sometime in mid-1999. The Village took the property and transferred it to a private developer who plans to replace it with a Shop & Stop parking lot. Brody’s challenge to the lack of notice under New York law is still ongoing, and a decision is expected soon from the federal district court.

“New York’s law was absolutely insane,” said Dana Berliner, an attorney at the Institute for Justice, which represents Brody in his federal lawsuit. “It was designed to make people believe they didn’t have to do anything to protect their rights until it was too late to object. New York law has a long way to go—it still allows condemnations for private development far too often. But this is a very important step.”

“I’m glad no one else will have to go through what I did,” said Brody.

Eminent domain for private development has received significant public attention in recent months. In July, the Michigan Supreme Court reversed its infamous Poletown decision, which had allowed the condemnation of private property for so-called “economic development.” In a unanimous decision in County of Wayne v. Hathcock, the Court decisively rejected the notion that “a private entity’s pursuit of profit was a ‘public use’ for constitutional takings purposes simply because one entity’s profit maximization contributed to the health of the general economy.”

The U.S. Supreme Court is right now considering whether to take its first constitutional challenge in 50 years examining eminent domain for private development. That case arises out of New London, Conn. The City of New London seeks to take seven middle-class families’ homes to make way for private development, including upscale housing for more affluent residents.

See New York Backgrounder

Berliner concluded, “New York courts have generally favored the government when owners object that their home or business is being taken to benefit a private party. But the tide is turning. Now at least, owners have a fighting chance, where before, they had no chance at all.”