Port Chester Property Owner Brody Vindicated in Long-Running Eminent Domain BattleVillage of Port Chester Apologizes for Violating Brody’s Constitutional Rights

J. Justin Wilson
J. Justin Wilson · June 16, 2009

Arlington, Va.—The Institute for Justice today announced that it has successfully negotiated a settlement with the Village of Port Chester in the wake of a 2008 federal court victory by local businessman William Brody.  Brody, represented by IJ, has been engaged in a nine-year eminent domain battle with the village, which took Brody’s property for a private development project.  (The village bulldozed his small businesses to make way for a parking garage for a Stop & Shop.)  Last year, a federal judge ruled on the long-running dispute, holding that the village violated Brody’s due process rights when it took his property on South Main Street to make way for a shopping mall.

In a formal apology issued last night as part of the settlement, the village announces that it “sincerely apologizes for violating the constitutional rights of local businessman Bill Brody . . . and regrets the hardship it has caused Mr. Brody for the years he has had to fight to vindicate his rights.”  Read the village’s full apology.

“For the past nine years, Brody has fought to protect his rights and the rights of property owners everywhere,” said Dana Berliner, an IJ senior attorney.  “He can now end that fight having been completely vindicated.”

Brody’s case centered on a challenge to New York’s eminent domain procedures.  Unlike most states, where property owners have the right to fight government’s taking of their property when the government files a condemnation action, New York requires property owners to file their own lawsuit within 30 days of the government’s decision that it might use eminent domain in the future—even though this can be months or even years before any actual condemnation.  To make matters worse, at the time Brody’s property was condemned, the government did not even tell people their rights were expiring.  Instead, governments published a small classified ad in the legal notices section of a local newspaper—an ad that did not so much as mention eminent domain or the 30-day challenge period.

The village decided to authorize the use of eminent domain against Brody in 1999, and Brody received a notice of condemnation in 2000—when he discovered, much to his surprise, that he had already lost his right to challenge that condemnation.  Brody filed a federal lawsuit challenging the condemnation, and, last year, Judge Harold Baer, Jr., of the Southern District of New York issued an opinion finding that the condemnation violated Brody’s right to due process.  Unfortunately, that decision came too late to save Brody’s building, which was condemned and replaced with a shopping center in 2003.

“There is no more basic principle of American law than the idea that the government cannot take away your rights in secret,” said Berliner.  “It’s amazing that it took nine years for the courts and the village to recognize that.”

In addition to apologizing to Brody, the village will also erect a sign at the corner of William Street and South Main Street, across from where Brody’s building once stood, renaming that corner “William Brody Plaza,” memorializing Brody’s successful battle.  The village will also issue Brody a check for the nominal damages awarded by a federal judge last year to recognize the violation of his rights, as well as paying an additional sum for the loss of his due process rights and a portion of the attorneys’ fees in the case.

“I’ve been saying for years that what the village was doing to me was unconstitutional,” said Brody.  “I’m glad everyone finally recognizes that I’ve been right all along.”

“We’re pleased the Mayor and the Board of Trustees had the courage to admit that the village was in the wrong all those years ago,” continued Berliner.  “After years of fighting, I am glad cooler heads have prevailed.  We appreciate that everyone is finally able to put an end to this longstanding controversy.”

The Brody litigation has had wide-ranging effects around the country.  Courts in both New Jersey and Hawaii have relied on the Brody case to require greater protections for property owners who are threatened with eminent domain, invalidating legal regimes that made it harder for people to protect their rights.  The case has generated opinions that have been cited in cases and legal treatises nationwide.

Closer to home, Brody’s case caused the New York legislature to rewrite portions of its eminent domain procedure laws to require the government to notify property owners of their opportunity to challenge the government’s use of eminent domain.  The 2004 change in the law was a direct result of Brody’s litigation and his personal efforts to persuade the legislature to protect other property owners.

“If constitutional rights are going to mean anything, people have to have a meaningful opportunity to challenge the government’s actions in court,” concluded IJ President and General Counsel Chip Mellor.  “This litigation will go a long way toward making sure that future victims of eminent domain receive exactly that opportunity.”