Taking Notice: New York (NY) Sun, 12/7/05


Monday's ruling by a federal appeals court in an eminent domain case comes as welcome news for those who had worried that the Supreme Court's disastrous ruling in Kelo v. New London would be the last judicial word on whether and when and how the government can take a private individual's property. In this case, Brody v. Village of Port Chester, the 2nd Circuit here in New York ruled that the Empire State's old eminent domain law was unconstitutional. On its face, the ruling may look like a moot issue because the law that was challenged has since been changed, but it is actually an important decision that could have some significant effects.

William Brody bought two adjacent parcels of land in Port Chester in 1996, on which he renovated four buildings that he then rented out to local businesses. However, the village eventually developed a broader redevelopment plan for its downtown and waterfront areas and decided to seize Mr. Brody's property so that a private developer could build a parking lot on it. Under the state Eminent Domain Procedure Law in effect at the time, the village's industrial development agency only needed to publish a vague notice in a local newspaper to inform landowners of the one opportunity they would have to challenge the village's decision to take their property.

Mr. Brody argued that he had missed such a hearing because he had not been properly informed that it was going to occur, a claim a three judge appeals panel credited unanimously. The government violated Mr. Brody's 14th Amendment right to due process; the village should have mailed him - and other landowners - an individual notice that his property was in danger. In one sense, the practical effects of this case will be limited. Thanks to the efforts of Assemblyman Richard Brodsky, the state has long since changed the law to require individual notice of the sort the court has just mandated in Brody.

The assemblyman has moved on to further reforms, such as requiring local legislative bodies like city councils to actually vote on eminent domain takings. Mr. Brody's buildings have already been razed. But, as both a lawyer at the Institute for Justice who represented Mr. Brody, Dana Berliner, and a spokesman for Mr. Brodsky, James Malatras, told us, there may be many New Yorkers whose land had been condemned under the old law but who didn't even know about it because the government hasn't yet moved to seize control. It's hard to count these individuals because often they themselves do not even know they might be affected.

The case will have larger implications. Ms. Berliner notes that many states and localities attempt to use procedural tricks such as hiding notice of hearings to make it easier to exploit their powers of eminent domain. Now, a federal appeals court has quashed that. Even though the Supreme Court's Kelo ruling stands, allowing takings for private economic development projects, government will not have carte blanche in respect of how it takes the property. Mr. Malatras points out that, in basing its ruling on the Fourteenth Amendment, the appeals court has reminded everyone that significant constitutional issues remain to be considered in the eminent domain debate. Brody will serve as a wake-up call to eminent domain exploiters and reformers alike that the fight over how to restrain this government power is not over yet.

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