Fair Enough for Government Work

Yesterday a federal judge ruled that New York's old Eminent Domain Procedure Law, so ridiculously rigged in the government's favor that popular outrage prompted the legislature to change it last year, nevertheless was fair enough to satisfy the 14th Amendment's requirement of due process. The Institute for Justice reports that U.S. District Judge Harold Baer upheld the Village of Port Chester's condemnation of four commercial buildings owned by William Brody, which the government has decided would be put to better use as a supermarket parking lot. Under the eminent domain procedures that existed at the time of the condemnation, Brody received no direct notice and had no meaningful opportunity to contest the forced transfer of his property. In its press release, I.J. (which represents Brody) notes:

The only notice Brody received about his one opportunity to challenge the condemnation of his property was a tiny legal notice in a newspaper….The ad made no reference to Brody or his address. It didn't say that he was losing any rights. In fact, it didn't say anything that would tell an ordinary person that he should do anything at all.

I.J. plans to appeal Baer's decision.

Comments

[Warren]

Gee-zus! Better dig that thumb out of the closet, and grab my towel while I'm at it. I'm expecting the Vogons any day now.

[joe]

Any chance of providing a link to the decision, or to the facts of the case, or to anyone who isn't advocating for one side in the lawsuit?

[saw-whet]

Well, let's see if Mark Question, Mark Bahner and A Disappointed Libertarian can louse up this thread.

[thoreau]

Warren-

Just pray that they don't read any poetry before the wrecking commences!

[drf]

hey joe!

what are some of the merits for this type of emminent domain case?

obviously, most people on this site would have a knee-jerk reaction to varying degrees consistent with the presentation of this piece.

what is your read?

and check out thoreau's good comment below about social engineering in the ME - i think he busted a coupla people who were going after you in the traffic one from yesterday 🙂

greetings from snowy (finally!) chicago.

[thoreau]

drf-

I haven't read the traffic thread, so I don't know how my comment pertains to that.

And I think joe's point is not that he's (currently, anyway) defending the use of eminent domain in this case, he's just asking for more info before he comes to a conclusion.

[Thomas Paine's Goiter]

The EDPL permits simple newspaper notice of a public use hearing. Nonetheless, shortly after the June 7 hearing the Village discovered that its notice had not met all the requirements of the EDPL. The Village therefore noticed a second public use hearing, which was duly held on July 6, 1999. Although the second notice met the requirements of the EDPL, Brody alleges he never learned of it and, accordingly, did not attend.

Amazing. We're going to take your property and we only need to put a meeting notice in the newspaper. It wouldn't make sense at all to actually contact the person being pillaged for "publice use".

Since at least 1991, the Village has been planning the redevelopment of its blighted waterfront and downtown area.

"Blight" most certainly overrules property rights.

[drf]

hey thoreau!

yup - but i was wondering how his instinctive reaction was, assuming that wanting to know a bit more was a natural reaction. but yesterday in that 172 (or so) posted piece on roads, there was a rather acrimonious discussion - there were lots of those yesterday - about roads and social engineering. i believe there were some who were going after joe's point on the grounds of "social engineering" were on other threads defending the ME policy, which, as you assessed it, amounts to nothing more than social engineering.

and, thoreau, your laser comments were reviewed. please hack off three fingers and send them in to the homeland security bureaucracy.

[Thomas Paine's Goiter]

"public use"

What in the hell is wrong with my fingers today?

[joe]

drf, my initial read is that the notification requirements (or lack thereof) are outrageous and probably constitute a procedureal due process violation, that seeking to replace active commercial property on a waterfront with two big box stores is idiotic, that the guy's surprise at the condemnation indicates that the City didnt' even try to broker an amicable sale, and that if the commercial property is actually active, then this is an abuse of the blight designation. "Blight" doesn't mean "ugly."

My initial read also includes a suspicion of the accuracy and completness of the facts as presented by Reason and the IJ, heightened by the fact that they won't link to anything that describes those facts.

I wouldn't describe the reaction of libertoids as "kneejerk," I'd describe it as principled. If you don't believe "public purpose" equals "public use," then it doesn't really matter what the specifics of the case are. The guy's properties could be burned out shells, building after building in the neighborhood being abandoned because of these lots' condition, his desire not to sell motivated by paranoid schizophrenia, and the proposed reuse demonstrably, inarguably better in every way than the current use, and it wouldn't matter, if your reading of the takings clause is as narrow as Jacob Sullum's.

[drf]

hey joe,

thanks for answering!

BTW: "The guy's properties could be burned out shells, building after building in the neighborhood being abandoned because of these lots' condition, his desire not to sell motivated by paranoid schizophrenia,"

you're describing exactly what happened in cleveland on carnegie or on euclid ave, right by the cleveland clinic about 25-30 years ago.

the CCF wanted some property to expand, and the burnt-out houses seemed perfect for purchase. no sale. finally, when the crazy old people died, the heirs sold - and some bodies were found in the cellar of one of the houses. strange episode.

but you can still drive down euclid ave from the CCF to public square and see abandoned, crumbling mansions from the 20s. sure there are new housing developments (to the north, before the highway), but going west, they're still there.

and, are you familiar with the douglas adams series, "hitchhiker"? wasn't there something like this story above in "so long"?

cheers,
drf

[matt]

"I wouldn't describe the reaction of libertoids as "kneejerk," I'd describe it as principled. If you don't believe "public purpose" equals "public use," then it doesn't really matter what the specifics of the case are."

Haha...well you got us there joe.

[jeffiek]

"Blight" most certainly overrules property rights.

Great. Since I consider your property blighted and I further consider its value to be $1 and I further consider myself a member of the public (therefore any use I put it to is public use), we must make arrangements for you to hand over the keys.
Is Saturday OK?

[Thomas Paine's Goiter]

Great. Since I consider your property blighted and I further consider its value to be $1 and I further consider myself a member of the public (therefore any use I put it to is public use), we must make arrangements for you to hand over the keys.
Is Saturday OK?

Yes.

*AHEM* After you put a notice in a random newspaper.

[matt]

""Blight" most certainly overrules property rights."

I was hoping he was being sarcastic, but maybe he wasn't.

[Hello]

Joe, from Westlaw:
United States District Court,
S.D. New York.
William BRODY Plaintiff,
v.
VILLAGE OF PORT CHESTER Defendant.
No. 00 Civ. 7481HB.
Jan. 4, 2005.

OPINION & ORDER

BAER, J.
*1 Plaintiff William Brody ("Brody") moves, and Defendant Village of Port Chester ("Port Chester") cross moves, pursuant to Fed.R.Civ.P. 56, for summary judgment on Brody's constitutional challenge to New York's Eminent Domain Procedure Law. [FN1] See N.Y. Em. Dom. Proc. Law. ? 201, et seq. (herein "EDPL"). For the following reasons, Defendant's motion for summary judgment is GRANTED and Plaintiff's motion for summary judgment is DENIED.

FN1. Plaintiffs William V. Minnich, William J. Minnich and Minnich Custom Woodwork have been dismissed, Charles Gargano, Chairman of the Empire State Development Corporation, previously represented by the New York State Attorney General's Office, is no longer a party. Brody is the only remaining plaintiff and Village the only remaining defendant. The Attorney General appears, pursuant to Fed. R. Civ. Pro. 24(a), as a statutory intervenor in support of the constitutionality of the New York State Statute at issue. See Caprio v. Bell Atl. Sickness and Accident Plan, 374 F.3d 217, 220 (3d Cir.2004).

I. BACKGROUND
A. Factual Background [FN2]

FN2. The court assumes familiarity with the discussion of the background facts as set forth in Brody v. Vill. of Port Chester, 345 F.3d 103 (2d Cir. Sept. 24, 2003) ("Brody IV" ); Minnich v. Gargano, No. 00 Civ. 7481, 2001 WL 1111513 (S.D.N.Y. Sept. 20, 2001) ("Brody III" ); Brody v. Vill. of Port Chester, 261 F .3d 288 (2d Cir. Aug. 08, 2001) ("Brody II" ); Minnich v. Gargano, No. 00 Civ. 7481, 2001 WL 46989 (S.D.N.Y. Jan. 18, 2001) ("Brody I" ).

Defendant is an incorporated Village within the Town of Rye, Westchester County, New York. As part of Port Chester's plan to redevelop its blighted waterfront and downtown area, and pursuant to the EDPL, a public hearing was held on June 7, 1999 to evaluate the "public use" of the proposed redevelopment. (Pl.Decl.Ex. C). The notice stated the time, place, and subject matter of the public hearings, and cited applicable portions of the EDPL. It noted in ? 4 that the hearing was part of the proceedings conducted pursuant to Article 2 of the EDPL and would review the question of public use. (Pl.Decl.Ex. C). Brody, owner of a parcel of commercial property within the proposed redevelopment zone, attended and opposed the condemnation of at the June 7, 1999 hearing.
Following the June 7, 1999 hearing, Port Chester discovered that its notice failed to satisfy all the requirements of the EDPL and, to ensure proper notice, issued a second notice for a public use hearing for July 6, 1999. At this second public hearing, comments from the prior hearing were expressly incorporated into the record. (Tr. Jul. 6, 1999 Hr'g, 6:22-7:6). Brody did not attend the July 6, 1999 hearing. (Pl.Decl.? 24).
Later, in July 1999, Port Chester published its determination and findings which, in pertinent part, stated that the redevelopment project would rehabilitate "certain blighted, substandard and unsanitary areas of the Village," and:
[E]nhance public access to the waterfront, protect and encourage water-dependent uses, promote the development of mixed use and retail commercial uses on the waterfront, remediate environmental problems, and have a positive impact on the existing and continued development of Village waterfront and downtown business areas.
(Pl.Decl.Ex. F).
Brody claims that Port Chester failed to provide adequate notice of its determination and findings in violation of the Due Process Clause of the Fourteenth Amendment. According to Brody, the notice made by publication deprived Brody of meaningful notice and failed to personally inform him that his land may be subject to condemnation or that such publication triggered the start of the [30] thirty-day period in which an appeal may be taken. Moreover, Brody asserts that Port Chester was required and failed to personally serve him with the determination and findings from the hearing, which would have included a tentative plan regarding the "public use" determination, the specific property to be condemned, and the specific appellate procedures. [FN3] In addition, the absence of any adversarial proceeding regarding the condemnation also denied Brody an opportunity to be heard.

FN3. The EDPL requires the Village to make a "determination and

findings." Specifically, the Village must,

[W]ithin ninety days after the conclusion of the public hearings ... make its determination and findings concerning the proposed public project and shall publish a brief synopsis of such determination and findings in at least two successive issues of an official newspaper if there is one designated in the locality where the project will be situated and in at least two successive issues of a newspaper of general circulation in such locality. If the official newspaper is one of general circulation in such locality, publication therein as specified shall be deemed sufficient compliance.

NY Em. Dom. Proc. Law ? 204(a) (Eff. Jan. 15, 2005).

*2 In contrast, Port Chester contends that Brody's constitutional rights were not violated, that Brody had actual notice that the determination and findings were forthcoming and since the determination and findings are considered a legislative act, Brody was not entitled to notice or an opportunity to be heard. Further, Port Chester claims that Brody had constructive knowledge of the [30] thirty-day appeal period and, therefore, personal service was unnecessary.
B. Procedural Background
On September 24, 2003, the Second Circuit directed this court to resolve the constitutional notice issue surrounding the publication of the determination and findings pursuant to EDPL ? 204. Brody IV, 345 F.3d 103 (2d Cir.2003). The Second Circuit held that while EDPL ? 207 and ? 208 grant New York state court's exclusive jurisdiction over claims regarding the propriety of the taking, res judicata will not bar this action because Brody could not have asserted his constitutional challenges to the lack of notice earlier. Id. at 111. In addition, the Second Circuit explicitly rejected Brody's due process claim with respect to the July 6, 1999 public hearing held pursuant to EDPL ? 203. Id. ("Accordingly, we once again conclude that Brody lacks standing to challenge the lack of individual notice of the second hearing.").
In the months following the Second Circuit's remand of the case, and likely in response to this and similar litigations, the New York State Legislature altered both the content and notice provided to owners and possible future condemnees regarding the public hearings and the determination and findings under the EDPL. EDPL ? 202 (Eff. Jan. 12, 2005) ("Amended EDPL"). [FN4]

FN4. It is uncontested that, as a result of the New York State Legislature's amendments to the EDPL, see 2003 N.Y. Assembly Bill No. 11167 (Sept. 14, 2004), Plaintiff's constitutional challenge to the EDPL has been addressed by the Amended EDPL. See Harrison & Burrowes Bridge

Constr., Inc. v. Cuomo, 981 F.2d 50, 61 (2d Cir.1992). The relevant changes to the EDPL are:

NYEDPL ? 202. Notice:

(C)(1) The condemnor shall serve, either by personal service or certified mail, return receipt requested, a notice of the purpose, time, date, and location of a public hearing required by this article to each assessment record billing owner or his or her attorney of record.

(C))(2) Such notice shall be served at least ten but no more than thirty days prior to such public hearing. Such notice shall clearly state that those property owners who may subsequently wish to challenge condemnation of their property via judicial review may do so only on the basis of issues, facts, and objections raised at such hearing.

(D) Inadvertent failure to notify a person or persons entitled to notice under this section shall not be jurisdictional nor construed to affect the validity of any title acquired by a condemnor under this law.

NYEDPL ? 204. Determination and findings:

(C) Upon making the determination and findings, the condemnor shall serve, by personal service or certified mail, return receipt requested, a notice of the brief synopsis thereof upon each assessment record billing owner or his or her attorney of record whose property may be acquired. Such notice shall: (1) include the information required by paragraph two of

subdivision (B) of this section; (2) state that copies of the determination and findings will be forwarded to such individuals upon written request and without cost; (3) inform such individual that, under section two hundred seven of this article, there are thirty days from the completion of the condemnor's newspaper publication requirement to seek judicial review of the condemnor's determination and findings; and (4) inform such individual that, under sections two hundred seven and two hundred eight of this article, the exclusive venue for judicial review of the condemnor's determination and findings is the appellate division of the supreme court in the judicial department where any part of the property to be condemned is located.

In response to the Amended EDPL, on October 4, 2004, this Court received a letter from Brody's attorneys. The letter acknowledged that Brody's constitutional challenge to the statue was moot as a result of the amendments to the EDPL. However, Brody reaffirmed his challenge to the constitutionality of the notice and hearing provisions "as applied" to him and requests $1 in nominal damages, return of his property and/or damages and a declaration that, among other things, EDPL ?? 201, 202, 203, 204 and 207 were unconstitutional "as applied." (Compl. at ? 1--5). Brody also contends that while he does not challenge the Amended EDPL, the statutory change may constitute some evidence of the Government's failure to provide Brody with individual notice. Port Chester responded on October 12, 2004, and acknowledged that Brody's facial challenge to the constitutionality of the former statute was moot and that the New EDPL failed to impact Brody's "as applied" challenge.
Both parties now cross move for summary judgment.
II. STANDARD OF REVIEW
A court will not grant a motion for summary judgment unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam ). When considering cross-motions for summary judgment, the same legal standards apply and a court "must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Make The Road by Walking, Inc. v. Turner, 378 F .3d 133, 142 (2d Cir.2004) (citations omitted); see also Morales v.. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir.2001) (holding that "each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.")
III. DISCUSSION
*3 The only issue which remains is Brody's claim that Port Chester violated his constitutional right to due process when it failed to provide him sufficient notice of (i) the Village's decision to adopt the determination and findings from the hearing; (ii) the appellate procedures to challenge Port Chester's determination and findings; and (iii) the legal consequences of Port Chester's publication of the determination and findings. See Brody IV, 345 F.3d at 111. To determine whether Port Chester violated Brody's constitutional rights the Court must determine whether Brody maintained a cognizable property interest, Port Chester deprived Brody of that interest, and Port Chester's deprivation of Brody's interest violated Brody's due process. See Harlen Assoc. v. Inc. Vill. of Mineola, 273 F.3d 494, 504 (2d Cir.2001); Zahra v. Town of Southold, 48 F.3d 674, 679--680 (2d Cir.1995); Sweeney v. City of New York, No. 03 Civ. 4410, 2004 WL 744198, at *4 (S.D.N.Y. Apr. 2, 2004).
1. Cognizable Property Interest
The threshold issue is whether Brody has a property or liberty interest protected by the Constitution. See McDonald v. Bd. of Educ. of City of N.Y., No. 01 Civ.1991, 2001 WL 840254, at *3 (S.D.N.Y. Jul. 25, 2001). Here, the property interest that has been affected by Port Chester's actions is the ownership, possession, and operation of an ongoing business. While commercial property "has not occupied the same privileged place as the home," United States v. 141st Street Corp., 911 F.2d 870, 875 (2d Cir.1990), it nevertheless garners due process protection. United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 902 (2d Cir.1992); accord United States v. Any and All Radio Station Equip., 93 F.Supp.2d 414, 423 (S.D.N.Y.2000) (recognizing commercial property as a property interest protected by the Constitution).
2. Deprivation of Property
The particular deprivation here is Port Chester's condemnation of Brody's commercial property. Krimstock v. Kelly, 306 F.3d 40, 62 (2d Cir.2002). "It is well established that the threat of a condemnation of real property constitutes irreparable injury as it cannot be compensated for by a monetary award." Brody III, 2001 WL 46989, at *3; see Varsames v. Palazzolo, 96 F.Supp.2d 361, 367 (S.D.N.Y.2000) ("Deprivation of an interest in real property constitutes irreparable harm"). [FN5] Accordingly, Brody articulates a sufficient deprivation of property.

FN5. It has been held that any actual and material interference with

private property rights whether temporary or permanent, which causes special and substantial injury to the owner, is a "taking" of private property within the meaning of the constitution and, therefore, requires due process of law. Bd. of Regents v. David Roth, 408 U.S. 564 (1972). See also Dolan v. City of Tigard, 512 U.S. 374 (1994) (city requiring store owner to dedicate portion of property for public greenway and bike path as condition of granting permit for proposed development was taking of property without just compensation); Nollan v. Cal. Coastal Comm'n, 483 U .S. 825 (1987) (city requiring grant of public easement across beachfront section of private property as condition of granting building permit is taking of property without just compensation).

3. Due Process Analysis
"An essential principle of due process [is] that deprivation of life, liberty, or property be preceded by [A] notice and [B] opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). The notice requirement was spelled out in Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306 (1950). [FN6] In Mullane, the Supreme Court held:

FN6. The Supreme Court rejected the application of the Mathews v.

Eldridge, 424 U.S. 319 (1976), analysis in favor of the Mullane analysis in Dusenbery v. United States. 534 U.S. 161, 167-168 (2002). In Dusenbery, 534 U.S. 161 (2002), the Supreme Court held that Mullane supplies the appropriate analytical framework for evaluating notice claims:

[T]he Mathews balancing test was first conceived in the context of a due process challenge to the adequacy of administrative procedures used to terminate Social Security disability benefits. Although we have since invoked Mathews to evaluate due process claims in other contexts, we have never viewed Mathews as announcing an all-embracing test for deciding due process claims. Since Mullane was decided, we have regularly turned to it when confronted with questions regarding the adequacy of the method used to give notice.

Id. at 167.

An elementary and fundamental requirement of due process in any proceeding, which is to be accorded finality, is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections ..... The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.
*4 Id. at 315, 319; accord Akey v. Clinton County, N.Y., 375 F.3d 231 (2d Cir.2004). While, the amount and nature of the process due depends upon the nature of the deprivation and its context, the analysis focuses on the two Mullane factors of notice and opportunity to be heard. Dusenbery v. United States, 534 U.S. 161, 167--68 (2002) (citing to Mullane, 339 U.S. at 313).
A. Notice
For notice to be sufficient, it must (i) be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections"; (ii) "convey the required information"; and, (iii) "afford a reasonable time for those interested to make their appearance." Mullane, 339 U.S. at 314. The determination of whether these conditions have been met is made on a case-by-case basis. "But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied." Id .; Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189 (2001) (citation omitted) ("Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.")
i. Notice was Reasonably Calculated
The first prong of the Mullane test requires the Court to determine whether the notice was "reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314. Pursuant to Mullane and its progeny, due process does not require actual notice, only an "attempt to provide actual notice." Dusenbery, 534 U.S. at 170. The adequacy of notice depends on a determination of reasonableness "and, as Mullane itself made clear, whether a particular method of notice is reasonable depends on the particular circumstances." Tulsa Prof'l Collection Serv. v. Pope, 485 U.S. 478, 484 (1988). The Supreme Court, for instance, has concluded that notice is sufficient when a creditor may learn of his debtor's demise by notice published by a probate court in the area of the debtor's residence, see Tulsa Professional Collection Services, 485 U.S. at 484, or when it is used to serve an absent domiciliary who cannot be served in any other way. Butler v. McKey, 138 F.2d 373 (9th Cir.1943), cert. denied, 321 U.S. 780. Notwithstanding the factual differences between these cases and the case at bar, the decisions remain instructive as they provide an example of the imprudence of gleaning a per se rule that direct mail or personal service is necessarily required for adequate notice.
In State of Georgia v. City of Chattanooga, 264 U.S. 472 (1924) (cited in Brody I, 2001 WL 46989, at *6), the Supreme Court reviewed a challenge by the State of Georgia to a condemnation proceeding with respect to land it owned in Chattanooga, Tennessee. Chattanooga had determined that, to prevent urban blight, the land owned by the State of Georgia was to be condemned. The City chose publication as its method of notification and the Supreme Court upheld its choice:
*5 The lack of opportunity to be heard before the passage of the ordinance opening the street furnishes no ground for complaint. The taking is legislative and not a judicial function, and an opportunity to be heard in advance need not be given. Personal service upon the owner is not essential; publication of notice is sufficient.
Id. at 483 (cited by Brody I, 2001 WL 46989, at *6). The Supreme Court elucidated a necessary caveat to the statement and granted the property owner a limited right to challenge a taking under the state's eminent domain power:
No complaint is made that the laws of Tennessee do not afford the state of Georgia and other owners reasonable notice and opportunity to be heard before the final determination of judicial proceedings, e.g., whether the state has delegated to the city the power to condemn; whether the taking is for a public purpose; and the amount of the compensation.
Id. at 483 (cited by Brody I, 2001 WL 46989, at *6).
Here, pursuant to EDPL ? 202(A), on March 25, 1999, Port Chester sent Brody via certified mail a specific notice of the public use hearing. (AG Ex. 5; Pl.Ex. C). In addition, "on May 22, 1999, the Village published a notice in the Journal News of an upcoming hearing regarding the potential condemnation project which encompassed Brody's property." See Brody III, 2001 WL 1111513, at *2; (Pl.Ex. C & D at 4). The success of the notice can be evidenced by Brody's appearance and participation at the hearing. (Pl.Ex. E). On July 18 and 19, 1999, pursuant to EDPL ? 204, Port Chester published a summary of its determination and findings in the local newspaper. The published findings stated that the redevelopment was:
[In] furtherance of the goals and objectives of the Urban Renewal Plans, as Port Chester is in the process of undertaking programs for the clearance and reconstruction of certain blighted, substandard [,] and unsanitary areas of Port Chester.
(Village Ex. Tab 9). Pursuant to EDPL ?? 207--208, the publication of the determination and findings initiated the (30) thirty-day period in which to appeal Port Chester's determination to the Appellate Division.
While due process requires that Port Chester provide Brody with notice reasonably calculated to inform him of the pendency of the action and, undeniably, personal service is the preferred form of notice, in light of the eminent domain function, publication was sufficient notice to Brody. [FN7] While there is limited authority to the contrary, the great weight of authority supports the proposition that notice by publication is sufficient. [FN8] Accordingly, pursuant to Mullane and its progeny, personal service was not essential and notice by publication met the minimum requirements for due process and has been held sufficiently "calculated, under all the circumstances, to apprise [Brody] of the pendency of the action and afford [him] an opportunity to present [his] objections." Mullane, 339 U.S. at 314.

FN7. See United States v. 194.08 Acres of Land, More or Less, Situated in St. Martin Parish, State of La., 135 F.3d 1025 (5th Cir.1998); Crompton Corp. v. City of Dubuque, No. 01 Civ. 1015, 2001 WL 34008507, at *5 (N.D.Iowa Dec. 10, 2001) (holding notice of an eminent domain condemnation by publication sufficient).

FN8. Mullane, 339 U.S. 306; see also City of Chattanooga, 264 U.S. 472; United States v. 194.08 Acres of Land, 135 F.3d 1025 (5th Cir.1998).

ii. Notice Conveyed the Required Information to Brody
*6 Brody argues that the publication of Port Chester's determination and findings were constitutionally deficient because the publication failed to delineate, or for that matter mention, appellate procedures and the 30 day statute of limitations.
Due process, however, has its limitations. The landowner is obligated to keep abreast of statutes and proceedings regarding his property. The Supreme Court established this burden in North Laramie v. Hoffman, 268 U.S. 276, 284--85 (1925). [FN9] There, the defendant, board of county commissions, published in the local newspaper, pursuant to a state statute, the draft proposal to build a road across plaintiff's land. See Id. at 277. Plaintiff claimed that the defendant board of county commissions had taken his property without due process. See Id. at 278. Plaintiff claimed that the defendant's actions, pursuant to state law, denied plaintiff an opportunity to be heard. The Supreme Court described the public use and notice implications when the government takes such action:

FN9. See GAC Enterprises, Inc. v. Medaglia, 52 F.3d 451, 455 (2d Cir.1995); see also Atkins v. Parker, 472 U.S. 115, 130-131 (1985); United States v. Locke, 471 U.S. 84, 108 (1985).

The taking of property provided for by the statute is a taking of land under the direction of public officers.... [T]he necessity and expediency of the taking of property for public use are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment.
Id. at 284. The North Laramie Court continued:
[I]t has been uniformly held that statutes providing for ... condemnation of land may adopt a procedure, summary in character, and that notice of such proceedings may be indirect, provided only that the period of notice of the initiation of proceedings and the method of giving it are reasonably adapted to the nature of the proceedings and their subject matter and afford to the property owner reasonable opportunity at some stage of the proceedings to protect his property from an arbitrary or unjust appropriation.
Id. at 283.
Notice and the opportunity to be heard, or the lack thereof, under the holding in City of W. Covina v. Perkins, 525 U.S. 234, 243 (1999), of state-law remedies is not required when, like here, the remedies are "established by published, generally available state statutes and case law." The Court went on to say that due process did not require notice of the specified means by which a person could challenge the government action pursuant to state law. See Id. Notice of appellate rights, and the procedures attendant thereto, is not a constitutional requirement for notice because the primary purpose of the notice requirements is "to ensure that the opportunity for a hearing is meaningful." Id. at 240. The Court concluded that sufficient notice is accomplished if the property owner is informed that his property may be taken and by whom it will be taken, but "[n]o similar rationale justifies requiring individualized notice of state-law remedies which, like those at issue here, are established by published, generally available state statutes and case law." Id. at 241.
*7 Notice by publication of the determination and findings were "reasonably adapted to the nature of the proceedings," and adequately protected Brody's interest. Brody was notified about the hearings, attended the hearings, and was informed that the condemnation procedure would proceed pursuant to the EDPL. (Pl.Decl.Ex. C). Brody knew or learned at the June hearing that Port Chester's "public use" determination and findings, pursuant to EDPL ? 207, would be issued within 90 days. (Pl.Ex. E). Once issued, the condemnees, including Brody, were able to challenge Port Chester's determination and findings for thirty-days. (Berliner Decl. Ex. A). Consequently, no due process violation occurred because due process does not require additional opportunities to challenge "public use" determinations or to discuss such determinations with the condemnation authority once notice and a hearing have been provided.
iii. Notice Afforded Brody a Reasonable Time to Appeal
Brody also contends that he was not afforded sufficient time to appeal Port Chester's determination and findings. It is uncontested that Brody attended the March 18, 1999 hearing regarding the environmental issues and the public hearing on June 7, 1999. (Pl.Decl.? 9, 14-16). Brody himself acknowledged that he received prior notification from the Village by certified mail on March 25, 1999 of the June 7, 1999 public use hearing. (Pl.Decl.? 15). Brody's own testimony demonstrates that he had actual notice of the determination and findings before the time to seek judicial review had expired. Accordingly, the notice, with regards to Brody, was sufficient to appear at these two hearings.
Accordingly, the notice afforded Brody reasonably provided Brody time to appear.
B. Opportunity to be Heard
Once again, I review Brody's contention that the EDPL's failure to provide an adversarial proceeding in which he could cross-examine witnesses is a violation of due process. Brody continues to rely on cases outside the eminent domain context, and I can find no eminent domain cases that address this issue. See Brody I, 2001 WL 46989, at *13. Brody's reliance on these cases, most of which apply the Mathews test, is no more persuasive in the "as applied" context than in the "facial" challenge context. See Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (pre-Mathews ); United States v. James Daniel Good Real Property, 510 U.S. 43, 58 (1993); Escalera v. New York City Housing Auth., 425 F.2d 853, 862 (2d Cir.1970). In Brody I, I rejected Plaintiff's facial due process challenge because an adversarial proceeding for every condemnee would impose a substantial burden on the State:
The power of eminent domain is exercised to serve the public interest, and if lengthy hearings in the already overburdened state courts were held for every person subject to condemnation, there would be a risk that the exercise of the power would be thwarted along with useful public projects.
*8 Brody I, 2001 WL 46989, at *13. I apply the same reasoning with the same result to Brody's "as applied" challenge.
Because I find no material issue of fact, indeed there are no facts in dispute, and for the reasons I outlined in Brody I, the argument that Port Chester violated Brody's constitutional right to due process must be denied. See Brody I, 2001 WL 46989, at *13.
IV. CONCLUSION
For all of the foregoing reasons, Defendant's motion for summary judgment is GRANTED and the complaint is DISMISSED. Plaintiff's motion for Summary Judgment is DENIED. The Clerk is instructed to close this motion and all other open motions and remove this case from my docket.
IT IS SO ORDERED.
S.D.N.Y.,2005.
Brody v. Village of Port Chester
2005 WL 13833 (S.D.N.Y.)

[Warren]

drf,
You're not very hoopy frood. Did you loose your towel? FYI it's chapter one, book one.

This thread is depressing. I need a drink. In fact, drinks are on me fellas.

Barkeep! Keep the change and bring me some more peanuts!

[Hello]

Relevant parts of 345 F.3d 103, cited for facts by the court:

Plaintiff William Brody is a commercial property owner in the Village of Port Chester, New York, who acquired the property at issue in this litigation in 1996. As the site was part of a long-planned urban development project, the Village and project developers later approached Brody about purchasing his property. Brody refused to sell.
Unwilling to take no for an answer, the Village sought to condemn the land under the procedures set out in the EDPL. Consistent with that statute, the Village held a public hearing on June 7, 1999 to review the intended public use to be served by the proposed redevelopment. Notice of the hearing was published pursuant to EDPL ? 202(A), which requires the condemnor to publish notice of the hearing in newspapers a certain number of days before the hearing, but does not require individual *106 notice to the affected property holders. Another tenant alerted Brody to the meeting, which Brody then attended in order to request that his property not be condemned. Brody was allowed four minutes to speak, but also was offered additional time to speak at the end of the hearing. Subsequent to the meeting, the Village issued and published a formal "determination and findings." Brody was never given individual notice of either the determination or its publication, as none is required under New York law. Consequently, Brody claims to have been unaware that the determination and findings were published or that he would have only thirty days after the publication of the determination and findings to challenge them in court. According to Brody, after the June 7 hearing, he "waited to see what the Village would decide to do." Although he "always intended to fight them if they tried to take [his] building," Brody "hoped they would realize that [he'd] done a lot of good for Port Chester and decide not to."
Shortly after this initial June 7 hearing, the Village discovered that the notice it had published advising the public about the initial hearing had not met all the requirements of the EDPL. The Village then published notice of a second public use hearing, which was held on July 6, 1999. It is undisputed that the second notice complied with EDPL ? 202(A). Brody claims to have received no actual notice of the second hearing, and, consequently, he did not attend.
On July 18 and 19, 1999, the Village published a summary of its determination and findings in the local newspaper, as required by EDPL ? 204, stating that the redevelopment project would serve to rehabilitate "certain blighted, substandard and unsanitary areas of the Village," as well as "enhance public access to the waterfront, protect and encourage water-dependent uses, promote the development of mixed use and retail commercial uses on the waterfront, remediate environmental problems, and have a positive impact on the existing and continued development of the Village waterfront and downtown business areas." Under the EDPL, this publication triggered the running of an exclusive thirty-day period in which to appeal the determination to the Appellate Division. See EDPL ?? 207, 208. There is no requirement in the EDPL, however, that the affected property owner be given individual notice of the determination and findings or their publication. See EDPL ? 204(A).
Brody claims to have been unaware that the determination and findings were published on July 18 and 19, or that he had a limited right to appeal within thirty days of the publication. See EDPL ? 207. According to Brody, this explains his failure to seek judicial review in an Article 2 proceeding under EDPL ? 207. Brody claims that had he known the findings were published and the legal significance of that publication, he would have challenged the taking of his property within the thirty day window.
On April 26, 2000, the Village commenced court proceedings to take title to Brody's property under Article 4 of the EDPL. See EDPL ? 402. On May 17, 2000, Brody responded to the Article 4 petition and filed, through counsel, a verified answer, which set forth three affirmative defenses: (1) the Village violated the United States and the New York Constitutions, as well as the EDPL, when it attempted to take his property without making an offer to compensate him; (2) the developer had not negotiated with him in good faith; and (3) the Village failed to ensure that adequate sums were in place to pay any condemnation award. The court ultimately granted the Village's petition *107 to take title in October 2000, on the condition that the Village make Brody an offer for compensation within sixty days as required by Article 3 of the EDPL.
II. The Federal Court Proceedings
On October 4, 2000, Brody filed the instant federal action, alleging that the EDPL violated the Due Process Clause of the Fourteenth Amendment, both facially and as applied to him. Specifically, Brody alleged that due process required the Village to provide those persons whose property was subject to condemnation with individual notice of the public use hearing, the Village's subsequent issuance of the determination and findings, and the thirty-day time limit on judicial challenges to the determination and findings.
The district court initially granted a preliminary injunction enjoining the Village from taking further steps in the condemnation process. Minnich v. Gargano, No. 00 Civ. 7481(HB), 2001 WL 46989 (S.D.N.Y. Jan.18, 2001). The Village took an interlocutory appeal of the injunction and, on August 8, 2001, while the cross-motions for summary judgment that are the subject of the present appeal were pending before the district court, a panel of this Court vacated the preliminary injunction, holding that Brody lacked standing to pursue his due process claims and that the district court had failed to balance the public interest against Brody's personal interests in enjoining the condemnation proceedings. Brody v. Village of Port Chester, 261 F.3d 288 (2d Cir.2001) ("Brody I "). The preliminary injunction was vacated and the case was remanded for "further proceedings consistent with [that] opinion." Id. at 291.
On September 20, 2001, the district court ruled that Brody had remedied the lack of standing but went on to grant summary judgment in favor of the Village, holding that Brody's claims were barred by res judicata because they could have been asserted as counterclaims in the action brought by the Village under EDPL ? 402. Minnich, 2001 WL 1111513, at * 6.
III. Events Occurring After the Lifting of the Injunction
After the preliminary injunction was vacated on appeal, the Village went forward with the condemnation proceedings and, on August 28, 2001, acquired title to Brody's property pursuant to the EDPL. On September 14, 2001, the Village conveyed Brody's property and several other parcels to the developer, G & S Port Chester LLC ("G & S"). G & S then conveyed the property to the Village IDA. In December 2001, Hudson United Bank Co. was granted in excess of $11 million in mortgage liens over the entire development parcel, which includes Brody's property.
In May 2002, Brody and the Village entered into an agreement under Article 3 of the EDPL whereby Brody received an advance payment of $1.8 million as compensation for his property (the "Advance Payment Agreement"); the legal significance of this agreement is tangentially at issue in this appeal. Brody subsequently filed a claim for damages against the Village on July 11, 2002, seeking $5 million plus interest for the fair market value of the property. See EDPL ? 512 (providing that the state supreme court is to determine the compensation due to a condemnee for damages as a result of the acquisition). [FN1]

FN1. The parties do not dispute that Brody was required to assert this claim for damages to preserve it, and there is no contention that Brody has waived any of his claims in the instant action by asserting this damages claim.

*108 In August 2003, Brody's last remaining tenant was evicted from the property. Work has begun on the project and several of the buildings have been demolished. We denied Brody's motion for stay of further demolition pending appeal because Brody failed to demonstrate irreparable harm and a likelihood of success on the merits of his public purpose challenge. See Order, No. 01- 9219 (2d Cir. Aug. 14, 2003).
DISCUSSION
I. Introduction
The Village preliminarily urges us to dismiss Brody's appeal on the grounds that events that have occurred since the entry of judgment now render the appeal moot. Specifically, the Village argues that by entering into an agreement to accept the advance payment, Brody effectively has relinquished any right to dispute the Village's title to the property. It further argues that no relief is available to Brody because the property has been sold, and the current title holder--the Village IDA--is not a party to the appeal. In response, Brody contends that acceptance of the advance payment in no way compromises his ability to pursue his constitutional challenges to the EDPL, and that he can still seek return of his property because the Village IDA is in privity with the Village.
Although the Village's arguments are presented as a motion to dismiss the appeal, we nonetheless begin with the merits of the appeal because the absence of a purportedly necessary party is not jurisdictional, and we would have no occasion to reach the mootness issues now raised by the Village if the district court properly granted summary judgment on res judicata grounds. We begin with the issue of standing and hold that Brody does have standing to pursue his claim based on the lack of individual notice of publication. Contrary to the district court, we hold that this claim is not barred by res judicata. Only then do we turn to the Village's arguments relating to the Advance Payment Agreement and the absence of proper parties, all of which we reject in holding that the appeal is not moot. We conclude with guidance to the district court on remand as to the issues of who are necessary parties and what form of relief may be appropriate.

[drf]

pour away, Warren. pour away.

doot doot, etc. etc.

and there are no more peanuts. we now carry blue diamond smoked almonds. have a can a week.

[jeffie]

an adversarial proceeding for every condemnee would impose a substantial burden on the State:

Note the similarity to "a trial by jury for every defendant would impose a substantial burden on the State".

[joe]

"Brody was notified about the hearings, attended the hearings, and was informed that the condemnation procedure would proceed pursuant to the EDPL."

"Brody himself acknowledged that he received prior notification from the Village by certified mail on March 25, 1999 of the June 7, 1999 public use hearing. (Pl.Decl.? 15). Brody's own testimony demonstrates that he had actual notice of the determination and findings before the time to seek judicial review had expired. Accordingly, the notice, with regards to Brody, was sufficient to appear at these two hearings."

Certified mail, two and a half months before the hearing? Sounds like the guy was notified to me.

[crimethink]

(from the decision)

The landowner is obligated to keep abreast of statutes and proceedings regarding his property.

Here in a nutshell is the problem -- with all the criscrossing jurisdictions of federal, state, town, village, water district, school district, etc, this is humanly impossible.

[crimethink]

joe,

He was notified of the first meeting by mail; he was not notified of the second, "official" meeting (except by publication).

[Ayatollah Usoe]

Don't get lost in the little issues. For this court, where summary judgement is requested, the issues concern notice. But IJ's bigger issue is public use. Can a state use eminent domain for other than public use? This is the exact argument IJ made during the last supreme Court session.

[Ayatollah Usoe]

Don't get lost in the little issues. For this court, where summary judgement is requested, the issues concern notice. But IJ's bigger issue is public use. Can a state use eminent domain for other than public use? This is the exact argument IJ made during the last supreme Court session.

[joe]

I agree with you, crimethink, that the "required to keep abrest" standard isn't right.

But he was obviously informed about the official meeting - he was there, unless I'm misreading the decision, which couldn't happen, because judges' decision are never overly complicated to read.

[Thomas Paine's Goiter]

Certified mail, two and a half months before the hearing? Sounds like the guy was notified to me.

Keep reading, Nancy Drew. That was notification of the FIRST meeting.

The second meeting's notification was a small notice in the classifieds of the BF Egypt Times Leader Record Union Post.

[Eric the .5b]

Joe,

Some people don't think "giving land to other people who'll donate more to the campaign/pay more in taxes" counts as "public use", even if they don't oppose every conceivable use of eminent domain.

[Ayatollah Usoe]

Don't get lost in the little issues. For this Federal court, where summary judgement is requested, the only issue concern notice and compliance with the 14th amendment. The case is being remanded back down to the District Court.

But IJ's bigger issue is public use. Can a state use eminent domain for other than public use? This is the exact argument IJ made during the last supreme Court session.

[joe]

Half Eric, you mean, people like me?

The issue here is not about obviously corrupt use of eminent domain power. Nobody thinks the government should be able to act in bad faith.

The big issue, as A. Usoe says, is whether the government can only take land when it intends to physically occupy the land, or whether there are other public purposes which justify condemnation.

[joe]

Here's a question: if your building is on fire, and the fire is threatening to spread to adjacent buildings, does the government have right to "violate your property rights" by going onto your land, chopping down your front door, and putting out the fire, against your wishes?

[Thomas Paine's Goiter]

Here's a question: if your building is on fire, and the fire is threatening to spread to adjacent buildings, does the government have right to "violate your property rights" by going onto your land, chopping down your front door, and putting out the fire, against your wishes?

MMMMMMM, a straw man so's to answer your own complex question. Logical fallacies are out in force today!

[drf]

TPG:

you should check out the iraq debates. appeals to pathos, false middle, false dilemmas, appeals to consequence, appeals to popularity, and of course the ever-popular prejudical language.

it's a PC person's wet dream. if only the topic were on message with them 🙂

[Thomas Paine's Goiter]

TPG:

you should check out the iraq debates. appeals to pathos, false middle, false dilemmas, appeals to consequence, appeals to popularity, and of course the ever-popular prejudical language.

it's a PC person's wet dream. if only the topic were on message with them 🙂

No way. I avoid Iraq debates. I had a view pre-invasion, I had a view during the invasion which changed with the decisions of the government, and I had a view post-war which again changed.

I refuse to walk into a debate (if you can even call it that) with two sides that aren't moving. Debating boulders is fruitless, well, most of the time. Sometimes, it really is cathartic.

[Jacob Sullum]

Joe: I did not post a link to the decision because I couldn't find it on the court's site, which seems to carry only "rulings of interest," a status this one apparently did not achieve. (I don't have access to Westlaw.) I would have included a link to a news story but could not find any of those either.

Hello: Thanks for supplying the opinion.

[Jimbo]

Joe,

How about if your building were on fire, the town breaks in, rescues all of your posessions...and then gives them to Wal*Mart, because they have a higher and better use for them.

Stop trying to spray Miracle Hair(tm) on the bald truth of the state taking from Peter to give to Paul's Jiffy Lube. You're wrong and will continue to be wrong.

[joe]

I find it difficult to believe that the national media wouldn't pick up such an exciting case.

I mean, what could possibly be more interesting than urban development? On a waterfront, no less!

Point taken, Jacob.

[kevrob]

Hello, fellow tree-apes! I think we've all been looking for this:

"But Mr Dent, the plans have been available in the local planning office for the last nine month."

"Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything."

"But the plans were on display ..."

"On display? I eventually had to go down to the cellar to find them."

"That's the display department."

"With a flashlight."

"Ah, well the lights had probably gone."

"So had the stairs."

"But look, you found the notice didn't you?"

"Yes," said Arthur, "yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard'." - Douglas Adams, 2h2g

Here's hoping IJ pulls this out on appeal.

Now, where's my Pan-Galactic Gargle Blaster?

Kevin

[Eric the .5b]

Joe: I wouldn't describe the reaction of libertoids as "kneejerk," I'd describe it as principled. If you don't believe "public purpose" equals "public use," then it doesn't really matter what the specifics of the case are.

Eric: Some people don't think "giving land to other people who'll donate more to the campaign/pay more in taxes" counts as "public use", even if they don't oppose every conceivable use of eminent domain.

Joe: Half Eric, you mean, people like me?

Or people like me. You're dismissing the objection to these proceedings as a blanket reaction based on principle, when it simply isn't about the broad principle alone.

Joe:The issue here is not about obviously corrupt use of eminent domain power. Nobody thinks the government should be able to act in bad faith.

IJ wouldn't be able to get anywhere with these cases if they were open-and-shut matters of private property being taken with adequate compensation to the landowners for the purpose of public use.

Yes, I think it's corrupt of a government to take someone's property and give it to a business that wants to make a parking lot on it. Are you saying you don't?

[Paul]

Joe's request for more fact in the matter is not an unreasonable one. However, my 'knee jerk' reaction is "it doesn't matter what brody's reasons are, you just can't take his property". However, one never should say never.

I thought that the 'schizophrenia' thread was interesting. Here in downtown Seattle, there were a series of properties owned by a very wealthy, but odd hermit of a character that, according to the Seattle Times "lived in a small house in the country and liked to spend his time watching professional wrestling". This was a case where the city was eyeing the property for 'something' (vague as to what) and local developers werer undoubtedly eyeing it even more. Being a 'crazy' old coot that lived in the country, he was ostensibly not developing these properties for his own 'crazy' and unreasonable purpose. The interesting twist to the story is that after many, many years of 'not doing anything' with his prime downtown real estate property, it was suddenly realized that now his property had 'historical value' because, wait for it... nothing had been done to it. The implication being that now we might want to 'preserve it'. Ahh, how things change. My only guess is that if the 'crazy old coot' decided to do something with the property, that someone might now STOP him from putting it to 'better use' because of the oft invoked 'historical preservation'.

Paul

[cj]

A few years ago, in Merriam, KS, (greater KC MO metro area) the city council (I think that is the correct gov't entity) used eminent domain to wrest a piece of property (car dealership) from one owner, in order to allow another (*aristocrat* car dealership) to "develop" the property. Apparently, the "eminent domain" came into play because the higher-end car dealership would provide higher tax income.

This is the truth. I am not aware the the first owner was in arrears of property tax or anything like that. It certainly wasn't a case of "blight." There was some brouhaha in the local paper, and one or two persons might have been voted off the (corrupt/incompetent in other ways, also) city council, but the transfer in ownership went forward, despite the first owner's complaints.
Basically, it seems that if a gov't entity is determined to confiscate your property (albeit with "fair market value" compensation), there's not anything to stop them.

[joe]

Eric .5, you're defining "corrupt" as "policies that offend me." The poster who brought up the issue of "giving property to campaign contributers" and I are using it as "exploiting power for personal gain," like graft.

Putting someone in jail for posessing cocaine, for example, would meet your definition of corrupt. I would reserve the term for putting someone in jail after planting cocaine on him, because you don't like him, or want to impress your boss.

The problem with your way of thinking comparable to those who base their opposition to the Iraq War on "Bush just did it so he could steal the oil and give contracts to Cheney's company." No, he did it for honest, pricipled reasons.

Sometimes, people are just wrong, not evil.

[thoreau]

But joe, error is anti-reason and therefore anti-life and therefore immoral!

Or something like that.