New York Landowners and Atlantic Legal Foundation Score Victory in Upholding Property Rights


In a unanimous decision, the United States Court of Appeals Second Circuit delivered a triumphant win for a New York landowner seeking to prevent New York State from seizing property through the unjust use of eminent domain. On December 7, 2005, the Court ruled that, in accordance with the United States Constitution’s due process clause, the State must give property owners the earliest possible notification before taking land. The State’s previous practice of inserting small "Legal Notices" in local newspapers was ruled unconstitutional. The Court ruled that the State’s use of these often-overlooked notices of condemnation was inappropriate because "where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear" for less visible methods of announcement. Accordingly, when attempting to enact eminent domain, the Empire State must now, at the least, send the landowner a letter informing him of the action.

Additionally, while New York law always granted a landowner whose property is targeted for seizure a 30-day appeal period, the Court agreed with Atlantic Legal’s arguments and mandated that the notice to the landowner must now "conspicuously mention" this appeal period.

The case, Brody v. Village of Port Chester, pitted William Brody, Atlantic Legal Foundation, and the Institute of Justice against public officials who condemned Mr. Brody’s property in Port Chester to pave the way for a big box shopping center and marina. Mr. Brody reported never having received personal notification of the village board’s decision to take his property. Atlantic Legal Foundation argued that such behavior violated New Yorkers’ Due Process rights, since a proper notice would have informed Mr. Brody of his ability to seek judicial review of the decision. Because he did not see the State’s notice of condemnation in the local newspaper, Mr. Brody was not aware of his rights as a citizen.

The federal appeals court reversed an earlier district court ruling, and ordered that Mr. Brody receive a fair trial on his claim that he did not get actual notice of the village’s determination to condemn his property. This victory gives hope to many more property owners, who in increasing numbers are challenging the illegal seizure of their property by governmental authorities.