Washington, D.C.—Anyone who owns a home, a business or a piece of land in New York state may one day thank embattled small businessman Bill Brody because of the legal victory he won today. The entrepreneur from Port Chester, N.Y., has been fighting to save his property and set an important precedent against the abuse of eminent domain by the government; the Village of Port Chester is fighting to give his well-maintained property to a private developer who would then turn it into a Stop & Shop parking lot. Today, the 2nd U.S. Circuit Court of Appeals issued a decision that removes procedural barriers from Brody’s challenge to New York eminent domain law, which allows local governments to take private property without even notifying the owner until it is too late to object.

Dana Berliner, lead attorney on the case for the Institute for Justice, said, “New York’s eminent domain law is the worst in the country. Today’s decision by the Second Circuit means Brody will finally have an opportunity to get a decision in his case. We’re confident the court will find that New York’s law violates the U.S. Constitution.” The case is one of many battles being fought nationwide by the Washington, D.C.-based Institute for Justice, the nation’s leading legal advocates against eminent domain abuse.

The timing of the decision could not be more appropriate. On Monday, September 22, New York Governor George Pataki vetoed a bill that would have corrected the law that is the subject of this lawsuit. Currently, 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. 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 permanently loses his rights to protest the condemnation.

With bipartisan sponsorship from Assemblyman Richard Brodsky and Senator Vincent Leibell, the bill passed the New York Assembly and Senate by a unanimous vote. Pataki vetoed it because giving notice of their rights to everyone who might be condemned would, he claimed, be too expensive.

“I’m ecstatic,” Brody said. “The court understood what a mess New York’s law is. I want the law changed not only to defend me, but anyone who owns property in New York. Being individually notified with something more than a classified ad that the government is looking to take your land is not too much to ask for. It is common sense and common decency. No one should have to go through what I’m going through.”

In 1996, Brody purchased several buildings in Port Chester, New York, as an investment in the future to support his wife, Carolyn, and their three young daughters. The four joined buildings were in total disrepair, but Brody believed that Main Street held promise. Over the next few years, Bill spent countless hours completely renovating and restoring the buildings. Just as he finished, the Village of Port Chester announced it would be condemning his buildings and handing the land over to a private developer to turn into part of a Stop & Shop. Brody’s property has been taken and much has been bulldozed by the Village of Port Chester even as the legal battle to defend his property continued. Today’s decision now puts Brody, rather than Village, in the driver’s seat.

Chip Mellor, president and general counsel of the Institute for Justice, said, “Cities always do everything they can to prevent these kind of constitutional challenges from being heard. The 2nd Circuit cut through the legal tangle the Village was trying to create and it finally allows Brody to get to the heart of his case—spotlighting the fact that New York’s eminent domain law is unconstitutional. This is a momentum shift of seismic proportion in this important case.”

The case has a lengthy history. It was filed in October 2000. The district court granted a preliminary injunction preventing the condemnation and said New York’s law was likely unconstitutional. But on appeal the 2nd Circuit reversed the injunction and allowed the condemnation to go forward. Then the district court held that Brody should have brought his challenge in state court and dismissed the case. On this appeal, the 2nd Circuit reinstated Brody’s lawsuit. The Court rejected all of Port Chester’s procedural arguments and sent the case back to district court for a decision on the merits. With today’s 33-page opinion, the U.S. Court of Appeals for the Second Circuit revived Bill Brody’s constitutional challenge to New York’s eminent domain procedures.

In the district court, Brody will have an opportunity to once again argue that New York’s notice is inadequate and violates due process. If he shows that Port Chester’s taking of his property for a Stop & Shop is not for a public use, as required by both the U.S. and New York constitutions, he may be entitled to get his property back.

The Institute for Justice is the nation’s leading legal advocate against the abuse of eminent domain, currently fighting battles across the nation against the taking of private properties by governments for the benefit of private parties. These include cases in Lakewood and Norwood, Ohio; New London, Conn.; Mesa, Ariz.; and metropolitan New York. IJ has already scored victories against the abuse of eminent domain in court and in the court of public opinion in Atlantic City, N.J.; Canton, Miss.; Pittsburgh, Penn.; and Baltimore, Md.

See New York Backgrounder