▪ Eminent Domain Due Process Notice

A New York federal court has ruled in favor of a property owner that a municipality wrongfully exercised eminent domain and denied the landowner procedural due process by not providing proper notice of his right to contest the taking.  Brody v. Village of Port Chester, No. 00 Civ. 7481 (HB) (SDNY, July 18, 2007).

Under the eminent domain law of New York state, a property owner has thirty days from a condemnor's determination and findings that a taking of property is for public use to challenge that determination in court.  The Village decided to take Brody's property for redevelopment, and its decision was reported in the local newspapers.  The papers also published a summary of the Village's reasons for taking Brody's property.

Brody, however, did not receive any individualized notice that his property was slated for condemnation.  Nor did he receive notice that he had thirty days to contest the public use determination in court.  Brody brought suit in federal court, alleging that his rights to procedural due process were violated because he did not receive individual notice, and because the Village had an obligation to inform him specifically that he had thirty days to mount a court challenge.

In 2005, the US Second Circuit Court of Appeals agreed, and held that Brody was entitled to personal notice of the commencement of the thirty day challenge period:

[W]here, as here, a condemnor provides an exclusive procedure for challenging a public use determination, it must also provide notice in accordance with the rule established by Mullane and its progeny . . . "[R]easonable notice" under these circumstances must include mention of the commencement of the thirty-day challenge period.

Brody v. Village of Port Chester, 434 F.3d 121, 132 (2d Cir. 2005).  The Second Circuit further held that the notice must contain a "conspicuous mention" of the challenge period.  Id. at 132.

The "Mullane" reference regards Mullane v. Central Hanover Bank & Trust, 339 U.S. 306 (1950), the granddaddy of due process/notice cases which is studied by every first-year law student.  That case requires that in order to pass due process muster, deprivations of property must be preceded by notice, reasonably calculated under the circumstances to apprise interested parties of the pendency of the action. This issue was recently revisited by the US Supreme Court in Jones v. Flowers, 547 U.S. ___ (Apr. 26, 2006).  A corollary of this rule is that due process will also be satisfied if the government can show that the property owner received actual notice. 

The latest Brody case was the Second Circuit case on remand to determine whether the property owner had actually received notice of the thirty day deadline via conversations with a lawyer representing him in another proceeding, via the newspaper stories, via the newspaper-published summaries of the takings determinations, or via a conversation with an official of the redevelopment company

The court held that Brody did not receive actual notice through any of these means, so had proven that his due process rights had been violated. 

The rationale of the Brody decisions should have broad application any time a statutory scheme provides a finite time window to make a challenge to the government's determination of public use or the propriety of a condemnation.  The government has an affirmative obligation to make reasonable attempts to inform the property owner, and those attempts must include "conspicuous mention" of any time limitations.  Story here from the local newspaper.  Full opinion of the court here.