Washington, D.C.-A federal court today ruled against a small property owner from Port Chester, New York, who is struggling to keep his buildings intact. The U.S. Court of Appeals for the Second Circuit ruled that the federal trial court’s preliminary injunction against the Village of Port Chester must be removed. The Village of Port Chester seeks to condemn four adjacent buildings owned and renovated by Bill Brody in order to transfer the land to a private developer for a Stop ’n Shop and its parking lot. Brody’s challenge against the forced transfer of his land to another private party now returns to the courtroom of Judge Harold Baer, who will decide whether to grant a permanent injunction.

The Institute for Justice filed a constitutional challenge to New York’s Eminent Domain Procedure Law on behalf of Brody and two other property owners in October 2000. Senior Attorney Dana Berliner argued in June before the Second Circuit that a preliminary injunction should remain in place until a judge rules on a permanent injunction. The court’s decision in favor of Port Chester to lift the preliminary injunction does not put Brody’s property–buildings he spent years and huge sums of money renovating–in imminent danger of destruction.

“This opinion will not affect the final decision in this case,” said Berliner. “First, when it heard the case, the Court mistakenly believed that Brody received adequate notice of the condemnation. It is clear now that he did not. Second, the appeals court used its standards for a preliminary injunction. But that has no effect on the permanent injunction, which is now pending in the district court. We think the due process violations in the New York eminent domain statutes are plain as day, and we’re confident the federal courts will recognize that in their decision.”

The abuse of eminent domain–where government takes private property against the owner’s will to transfer it to other private parties–is a nationwide problem. But New York property owners face a system not only fraught with abuse, but set up to prevent property owners from challenging such abuse under state procedures.

“New York’s eminent domain law defies both common sense and the Constitution,” said Berliner. “In New York, there are only 30 days when you can object to the government taking your property to give it to another private party. Those 30 days come and go without any individual notice to the owner, a proper hearing, or notice of the right to appeal, all of which are required by the Constitution. Those who face the loss of a home, business or church receive less due process than a kid being suspended from school.”

Worse, property owners’ tiny window to defend the right to their property comes before the government even tries to take it. Unless owners happen to see one of those small-print legal notices stuck in the back of a newspaper, and, within 30 days, file a challenge to a possible future condemnation of their property, the State tells owners they have waived their constitutional property rights.

In addition to the procedural nightmare created by New York’s eminent domain law, the condemnation of Brody’s property also spotlights 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 being taken to benefit other private parties.