graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Government Facilitated Property Theft: Notice in New York

Plaintiff-appellant William Brody has been fighting the taking of his property for the better part of seven years. In 2001, after a number of public meetings, the Village of Port Chester (the “Village”) finally condemned his property for use in a large-scale municipal redevelopment project. Brody sued in the United States District Court for the Southern District of New York, alleging that the Village, acting pursuant to New York’s Eminent Domain Procedure Law, N.Y. EM. DOM. PROC. LAW §§ 101-709 (McKinney 2005) (“EDPL”), violated his rights under the Due Process Clause of the Fourteenth Amendment by failing to provide adequate notice of his statutory right to challenge the Village’s public use determination and adequate procedures for doing so. The district court (Baer, J.) granted summary judgment in favor of the Village, holding that the notice and hearing provisions of the EDPL, with which the Village complied, satisfied due process.

Brody argues on appeal that summary judgment was improper because the notice and hearing provided by the Village were insufficient to satisfy Fourteenth Amendment due process requirements. First, Brody claims that, while he was aware that the Village was planning to take his property to complete the Project, he was unaware of the brief period of time allowed under the EDPL for seeking judicial review of the public use determination. Second, Brody argues that, even if he had seen the published Determination and Findings, the information contained in the synopsis would not have informed him of the legal consequence of the publication and thus does not satisfy due process requirements. Third, Brody claims that he was entitled to a full adversarial hearing before a neutral arbiter on the issue of public use.

Issue Areas:

Limited Government, Property Rights

Question(s) Presented:

1. Did the notice provided by Port Chester satisfy the due process requirement of the US constitution?

2. Does the EDPL violate due process in denying condemned a full adversarial hearing in challenging the condemnation of a property? 

Additional Background:

The Village argued that (1) Brody had actual notice of the publication of the synopsis, (2) the Determination and Findings are legislative in nature, and as such, Brody was not entitled to notice or an opportunity to be heard, and (3) Brody had constructive knowledge of the appeal period, and thus personal notice was unnecessary. After a hearing, the district court again granted the Village’s motion for summary judgment, ruling that (1) under Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), publication notice was sufficient to satisfy due process, (2) the published notice did not have to inform the reader of the significance of the publication (i.e., that it began the thirty-day appeal period) or of the statutory procedure for challenging the determination, and (3) the hearing provided for by EDPL section 207 satisfies due process.

ALF’s Amicus Brief:

In an amicus brief ALF argues that the Port is attempting to rehash issues of standing that this Court has already ruled on. Their argument is because Brody had actual knowledge of the hearing, its procedures, and their legal consequences, he could not have been harmed by a lack of notice, and therefore lacks standing. In Brody II this Court disposed of the issue of standing on summary judgment, and the record has not changed since that determination. The publishing of determinations and findings of a government entity or the authorization of them in a statute is an insufficient basis to establish that an individual was on notice of all legal consequences of these proceedings against his property. The statute in question places of burden of knowing the complexities of the legal system on potential victims of government corruption and abuse of power, and requires them to use this required knowledge to take action within 30 days of a harm taking place. The allocation of this burden is unfair because the government knows its own procedures and their consequences best, and should be required as a matter of due process of notifying those subject to its powers what actions are required of them to protect their rights. Passing a statute or publishing a newspaper the results of some corrupt proceeding are plainly insufficient, but Appellees would have this Court reconsider the issue of standing to grant them a free hand to abuse their citizens of their property rights without notifying them about how they may defend themselves. 




On December 5th, 2005, the Second Circuit held that (1) the means and content of the notice mandated by section 204 of the EDPL, as applied to Brody, were insufficient to satisfy due process requirements, but (2) the EDPL’s procedure for reviewing a condemnor’s determination passes constitutional muster and remanded for a trial to determine whether Brody had actual notice. 

Date Originally Posted: May 27, 2005

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