Eminent Domain Law

U.S. Dist. Ct., S.D.N.Y. (Baer, J.).

In an action by landowner contending that the village's condemnation of his property violated his procedural due process rights, the Second Circuit had concluded that the village's notice procedures were inadequate, but remanded to district court to determine whether landowner had received actual notice of the condemnation. The district court concluded that landowner's procedural due process rights had been violated because landowner had not received actual notice, but indicated that landowner had not yet demonstrated concrete harm suffered as a result of the violation.

In 1996, landowner purchased land in an area of the village that had been slated for redevelopment. The village subsequently prepared a redevelopment plan. Landowner participated in the public hearings on that plan, but apparently did not believe that any determination made after those public hearings would be final. Indeed, at one of the hearings, the village counsel indicated that the village would keep landowner 'abreast of the procedure as it goes forward' and that 'no one here is going to be subject to the eminent domain procedure or have a condemnation in the immediate future.' Nevertheless, less than two months later, the village did publish determination and findings stating the alleged public use of the project, and effectively triggering the 30-day statutory period for constitutional challenge to the condemnation. The village did not send personal notice to landowner, and landowner contended that he did not read the published notice or relevant newspaper articles. Landowner also received a call from a principal of the proposed developer of the site, who informed landowner that his appeals period had not expired.

In concluding that landowner did not have actual notice of the commencement of the 30-day challenge period, the court noted that neither the newspaper articles nor the published synopsis of the village's determination and findings included notice of the commencement of the 30-day challenge period. Hence, even if landowner had read those articles or the synopsis, landowner would not have acquired actual notice that the period had commenced. The court then turned to the phone call with the developer, and noted that the developer had not specifically told landowner that the publication of the determination and findings triggered commencement of the 30-day period. As a result, the village did not meet is burden of establishing that landowner had received actual notice of the 30-day period. The court held, therefore, that landowner had stated a procedural due process violation, but observed that landowner had not yet established what damages landowner had suffered as a result of that violation. The court reserved judgment on that issue until both parties had the opportunity to present evidence.

Condemnation Violates Due Process Rights

Brody v. Village of Port Chester

NYLJ 7/25/07, p. 31, col. 3

U.S. Dist. Ct., S.D.N.Y. (Baer, J.).

In an action by landowner contending that the village's condemnation of his property violated his procedural due process rights, the Second Circuit had concluded that the village's notice procedures were inadequate, but remanded to district court to determine whether landowner had received actual notice of the condemnation. The district court concluded that landowner's procedural due process rights had been violated because landowner had not received actual notice, but indicated that landowner had not yet demonstrated concrete harm suffered as a result of the violation.

In 1996, landowner purchased land in an area of the village that had been slated for redevelopment. The village subsequently prepared a redevelopment plan. Landowner participated in the public hearings on that plan, but apparently did not believe that any determination made after those public hearings would be final. Indeed, at one of the hearings, the village counsel indicated that the village would keep landowner 'abreast of the procedure as it goes forward' and that 'no one here is going to be subject to the eminent domain procedure or have a condemnation in the immediate future.' Nevertheless, less than two months later, the village did publish determination and findings stating the alleged public use of the project, and effectively triggering the 30-day statutory period for constitutional challenge to the condemnation. The village did not send personal notice to landowner, and landowner contended that he did not read the published notice or relevant newspaper articles. Landowner also received a call from a principal of the proposed developer of the site, who informed landowner that his appeals period had not expired.

In concluding that landowner did not have actual notice of the commencement of the 30-day challenge period, the court noted that neither the newspaper articles nor the published synopsis of the village's determination and findings included notice of the commencement of the 30-day challenge period. Hence, even if landowner had read those articles or the synopsis, landowner would not have acquired actual notice that the period had commenced. The court then turned to the phone call with the developer, and noted that the developer had not specifically told landowner that the publication of the determination and findings triggered commencement of the 30-day period. As a result, the village did not meet is burden of establishing that landowner had received actual notice of the 30-day period. The court held, therefore, that landowner had stated a procedural due process violation, but observed that landowner had not yet established what damages landowner had suffered as a result of that violation. The court reserved judgment on that issue until both parties had the opportunity to present evidence.