N.Y. Court Ruling Raises Hopes on Eminent Domain: New York (NY) Sun, 12/7/05

By Julia Levy

Property owners angered by the Supreme Court's decision this year that the government can seize their homes and businesses received a psychological boost when a federal appeals court ruled that a New York village had overstepped its eminent domain authority.

The U.S. Court of Appeals for the 2nd Circuit on Monday ruled that the village of Port Chester, N.Y., failed to properly alert a New York businessman of his right to challenge an eminent domain decision before it seized his four buildings on Main Street. It then gave a private developer the green light to erect a Stop & Shop parking lot where his four office buildings had stood.

The decision, which came after five years of litigation, doesn't mean customers will be forced to stop scouring the aisles of the new Port Chester Stop & Shop anytime soon. Nor does it mean that the plaintiff, William Brody, necessarily will be awarded damages.

It is, however, a warning to local governments tempted to take private property without properly notifying the people who own it, as required by the new state eminent domain law passed last year.

The ruling itself does not challenge the Supreme Court's extension of the powers of seizure, but the lawyer representing Mr. Brody said the ruling marked a victory for people looking to reform eminent domain laws in New York and across the country.

"Right now, the government holds all the cards, and the private citizen holds none," the lawyer, Dana Berliner, said. "This is an effort to restore some of the fairness to the process."

Ms. Berliner, a senior attorney at the Virginia-based Institute for Justice, said: "I think it's such a fundamental right that I can't believe any court would rule that someone wasn't entitled the notice. I'm incredibly happy because this why we brought it five years ago."

Ms. Berliner said current law in New York is far better for property owners than the law in 1999, when the village of Port Chester ran a legal notice in the newspaper, which was the only way Mr. Brody would have known his property was threatened by a sweeping economic development project.

The new law, which was championed by Assemblyman Richard Brodsky and was signed into law by Governor Pataki in September 2004, requires the government to notify property owners by mail or delivery if their property is at risk of being seized by eminent domain. It also requires the government to alert New Yorkers that they have only 30 days to challenge the condemnation.

The decision reached this week called the change in state law "a wise policy choice."

"This shows you that I was ahead of my time," Mr. Brodsky said yesterday in a telephone interview. "It's always nice to have the court of appeals say you did the right thing."

The Assembly member, who is fighting now for further reforms of eminent domain, said, "People have a right to really actually know when the state's trying to take their property, and they have the right to try to protect themselves."

While the decision was a partial victory for Mr. Brody, who did not return requests for comment yesterday, it was not a total victory.

Mr. Brody argued that the notice of condemnation should tell property owners not only that they have 30 days to challenge the decision but the procedures for challenging the condemnation. The ruling said that level of detail would not be necessary.

Mr. Brody also argued that due process requires "a full adversarial hearing" with the opportunity to call and cross-examine witnesses before a neutral arbiter. The court found, though, that due process requires no such thing.

The ruling also rejected Mr. Brody's claim that property owners are entitled to hearings before governments decide to use eminent domain. It explains: "Such a rule would impose an impossible burden on the contemnor and would represent an unwarranted judicial arrogation of the legislature's power to condemn."

The lawyer representing the village of Port Chester, Alan Scheinkman, viewed this week's decision as a victory for his side. "They lost on most of their claims," he said. "His claims have been whittled down, and whittled down and whittled down and the project has been allowed to move forward. At best this is a technical Pyrrhic victory for Mr. Brody."

In the next phase of the case, likely to begin early next year, the district-level court will decide if Mr. Brody is entitled to any damages.

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