Due Process Upheld

Atlantic Legal Foundation, along with the Institute for Justice, is representing William Brody, whose property in Port Chester, NY was condemned to make way for a big box store shopping center, marina and other construction in the villages commercial center. Brody alleged that he did not receive personal notice of the village boards decision to condemn his property and that the lack of personal notice to people whose property is to be condemned was a denial of their due process rights because the giving of notice triggers a 30-day period in which the property owner can seek judicial review of the villages decision. Brody did not seek judicial review because he did not see the newspaper publication of the summary of the village boards determination.

In a significant victory for property owners in New York State who face condemnation of their property through eminent domain by the State or its agencies, the United States Court of Appeals for the Second Circuit in a unanimous decision (see below at New York Landowners and Atlantic Legal Foundation Score Victory Upholding Property Rights, December 8, 2005) ruled that the State must give the property owner the maximum notice practicable in order to satisfy the due process requirements of the United States Constitution, and that mere publication in the Legal Notices section of the local newspaper, as provided in New York States Eminent Domain Procedures Law, was inadequate. Where the names and post offices addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency. The court also agreed with our argument that the notice must also conspicuously mention that it triggers a 30-day review process.

The court ordered that Brody be given a trial on his claim that he did not get actual notice of the village boards determination. The ruling is encouraging for the property owners who are challenging illegal taking of their properties by the government.

A three-day bench trial on this issue was held in late March 2007. In another victory for property owners, Federal Judge Harold Baer ruled, in July 2007, that a lack of notice both in form and content rendered the taking of William Brodys land a violation of procedural due process, paving the way for a trial on remedies.