Trial Court Awards Nominal Damages In Long-Running Land-Grab Fight

John Kramer
John Kramer · August 14, 2008

Arlington, Va.—In the latest development in businessman Bill Brody’s long-running fight over the Village of Port Chester, N.Y.’s use of eminent domain to seize his property and turn it over to a private developer, Judge Harold Baer, Jr., of the Southern District of New York, has awarded Brody two dollars in nominal damages.  The judge found that Brody’s rights were violated when he was denied the opportunity to fight the Village’s decision to use eminent domain.  Nonetheless, he refused to return Brody’s property or award other damages.

Looking back nine years after Brody was denied the legal opportunity to fight for his property, Judge Baer predicted New York courts would have ruled against Brody, but the state’s highest court has not spoken on the scope of the government’s eminent domain power in years.

In New York, unlike most states, property owners must challenge eminent domain before the government ever actually uses the power against them.  Once a government decides that eminent domain may be used, a New York property owner has only 30 days to bring a lawsuit challenging the government’s future takings.  To make matters worse, until the law was amended in response to Brody’s lawsuit, the government had no duty to warn anyone that it was taking away their rights.  Brody’s sole chance to raise legal objections to the Village’s taking of his property was a 30-day period in 1999 that expired months before anyone bothered to tell him.

Judge Baer’s August 11 decision, received by the Institute for Justice today, reaffirms that Brody was entitled to notice before his rights expired, but finds that Brody can receive no further remedy for the loss of his property, which was taken and bulldozed for a private developer’s parking garage in 2003.

“This decision underscores how important it is for courts to hold governments accountable before allowing them to take away people’s property,” said IJ Senior Attorney Dana Berliner.  “It is common sense that government shouldn’t be allowed to take people’s property before a court decides whether the taking is legal—and if the taking is illegal, they should have to give it back.”

While the latest decision finds that Brody could not prove he would have successfully prevented the taking of his property nine years ago, it leaves untouched earlier decisions holding that his constitutional rights were violated.  Federal and state courts nationwide have cited these decisions to prevent governments from taking away people’s rights without proper notice.  The case has led directly to changes in eminent domain procedures in both New York and New Jersey, and Brody decisions have been cited in a number of respected legal textbooks.

“Bill’s fight helped people across the country, but unfortunately, his victory proved slower than the developer’s bulldozers,” said IJ Staff Attorney Robert McNamara.  “Bill’s willingness to stand up and fight for what most Americans take for granted, the right to own property and decide for himself if and when he ever wants to sell it, has helped make other people’s property safer from eminent domain abuse.”

Berliner concluded, “Developers have succeeded in rigging New York’s eminent domain laws against ordinary property owners.  The New York legislature and New York courts desperately need to ensure nothing like this can ever happen again.”