Eminent Domain Law

Landowner Entitled to Personal Notice of Public Use Determination

Brody v. Village of Port Chester

NYLJ 12/9/05, p. 21, col. 3

U.S. Court of Appeals, Second Circuit

(Opinion by Wesley, J.)

In landowner's action challenging the constitutionality of the village's condemnation of his land, landowner appealed from the District Court's grant of summary judgment to the village. The Second Circuit vacated the District Court's judgment and remanded for a trial to determine whether landowner had actual notice of the condemnation proceedings.

In June 1999, the village held a public hearing to discuss a prospective condemnation project that would encompass, among other land, the parcels owned by landowner. The village sent landowner personal notice by certified mail, and also published notice of the public hearing. Landowner attended the public hearing and expressed his opposition to inclusion of his parcels. When the village discovered a defect in the published notice for the June meeting, the village held a second hearing in July to discuss the same issues. Landowner contended that he did not receive notice, and therefore did not attend, although his earlier comments were included as part of the village's record of the hearings. On July 18 and 19, the village published the synopsis of its determination, which outlined the project's public use. Landowner contended that he never saw the published synopsis, and therefore did not take the opportunity to object. EDPL section 208, however, bars a landowner from challenging a determination of public use unless the challenge is made within 30 days of the published notice of the determination. In April 2000, the village instituted the process for acquiring title. Landowner objected to the compensation offered. Then, in October 2000, landowner brought action in federal district court contending that his due process rights had been violated because he did not received personal notice of the village's published use determination. The District Court awarded summary judgment to the village, and landowner appealed. Mean-while, the condemnation of landowner's land was completed.

On appeal from the District Court, the Second Circuit rejected the village's argument that because the public-use determination is legislative, that determination is not subject to due process requirements. The court noted that because the EDPL provides for judicial review of the public use determination, a landowner whose name and address are known to the village is entitled to personal notice of the determination that triggers his right to review of that public use determination. As the court noted, there is little reason to accord a landowner a right to be heard on the public use question if the landowner is never informed of the village's determination on that question. Moreover, the court held that the requisite notice would have to inform the landowner that the determination commences the statute's 30-day review period. To the extent that the EDPL provisions did not mandate such notice, they were not consistent with due process. At the same time, the Second Circuit rejected landowner's challenge to the constitutionality of the EDPL's review procedures, concluding that landowner need not be afforded a full adversarial hearing before a municipality decides that a particular condemnation project constitutes a public use. The court noted that the essentially legislative nature of the determination is not amenable to resolution through adversarial proceedings. As a result, the court remanded to the district court to determine whether landowner had actual notice of the village's public use determination, and to determine whether landowner was entitled to damages.

Landowner Entitled to Personal Notice of Public Use Determination

Brody v. Village of Port Chester

NYLJ 12/9/05, p. 21, col. 3

U.S. Court of Appeals, Second Circuit

(Opinion by Wesley, J.)

In landowner's action challenging the constitutionality of the village's condemnation of his land, landowner appealed from the District Court's grant of summary judgment to the village. The Second Circuit vacated the District Court's judgment and remanded for a trial to determine whether landowner had actual notice of the condemnation proceedings.

In June 1999, the village held a public hearing to discuss a prospective condemnation project that would encompass, among other land, the parcels owned by landowner. The village sent landowner personal notice by certified mail, and also published notice of the public hearing. Landowner attended the public hearing and expressed his opposition to inclusion of his parcels. When the village discovered a defect in the published notice for the June meeting, the village held a second hearing in July to discuss the same issues. Landowner contended that he did not receive notice, and therefore did not attend, although his earlier comments were included as part of the village's record of the hearings. On July 18 and 19, the village published the synopsis of its determination, which outlined the project's public use. Landowner contended that he never saw the published synopsis, and therefore did not take the opportunity to object. EDPL section 208, however, bars a landowner from challenging a determination of public use unless the challenge is made within 30 days of the published notice of the determination. In April 2000, the village instituted the process for acquiring title. Landowner objected to the compensation offered. Then, in October 2000, landowner brought action in federal district court contending that his due process rights had been violated because he did not received personal notice of the village's published use determination. The District Court awarded summary judgment to the village, and landowner appealed. Mean-while, the condemnation of landowner's land was completed.

On appeal from the District Court, the Second Circuit rejected the village's argument that because the public-use determination is legislative, that determination is not subject to due process requirements. The court noted that because the EDPL provides for judicial review of the public use determination, a landowner whose name and address are known to the village is entitled to personal notice of the determination that triggers his right to review of that public use determination. As the court noted, there is little reason to accord a landowner a right to be heard on the public use question if the landowner is never informed of the village's determination on that question. Moreover, the court held that the requisite notice would have to inform the landowner that the determination commences the statute's 30-day review period. To the extent that the EDPL provisions did not mandate such notice, they were not consistent with due process. At the same time, the Second Circuit rejected landowner's challenge to the constitutionality of the EDPL's review procedures, concluding that landowner need not be afforded a full adversarial hearing before a municipality decides that a particular condemnation project constitutes a public use. The court noted that the essentially legislative nature of the determination is not amenable to resolution through adversarial proceedings. As a result, the court remanded to the district court to determine whether landowner had actual notice of the village's public use determination, and to determine whether landowner was entitled to damages.