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A condemnor of property must give as much notice “as practicable” to tell a property owner of a proceeding that threatens to deprive the owner of a property interest, the 2nd U.S. Circuit Court of Appeals has said. Clarifying the notice provisions of New York state’s Eminent Domain Procedure Law, the circuit directed that a Village of Port Chester property owner be given a trial to determine whether he received actual notice of the proceedings that determined his property was condemned to pave the way for a mixed-use waterfront development. The circuit, in an opinion written by Judge Richard Wesley, said due process requires as much notice “as practicable” and, in the case of Brody v. Village of Port Chester, 05-0446-cv, individual, mailed notice could be required of the village. The opinion was the latest of several made at the district and appellate levels during a seven-year fight by William Brody to contest condemnation proceedings that the village finalized in 2001. Southern District of New York Judge Harold Baer Jr. granted summary judgment for the village finding that the notice and hearing provisions of the Eminent Domain Procedure Law, ��101-709, were satisfied. Wesley, along with Judges Sonia Sotomayor and Ralph Winter, found that the “means and content” of notice required by �204 of the EDPL “were insufficient to satisfy due process requirements” as applied to Brody. But the circuit also rejected another challenge by Brody when it found that “the EDPL’s procedure for reviewing a condemnor’s determination passes constitutional muster.” Brody had purchased commercial property in 1996 in an area that the village eventually decided would be targeted for improvement through its Modified Marina Redevelopment Project — a mixture of public-use space and private development. The village in July 1999 published a synopsis of its determination and findings outlining, as required, the project’s public use. While the publication of the synopsis triggers an exclusive 30-day period in which property owners may seek judicial review of the determination, Brody claimed he did not seek judicial review because he never saw the published synopsis. Baer found the publication notice was sufficient to satisfy due process under Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), and that the published notice did not have to inform the reader of the significance of the publication (in this case, the fact that the publication triggered the 30-day period) or the procedure for challenging the determination. On Brody’s appeal, the village had argued that the legislative nature of the public-use determination made the procedures for challenging the determination immune from due process requirements. PURPOSE REVIEWABLE But Judge Wesley said that “while the legislative decision to condemn is not reviewable, the purpose of the condemnation is.” He added: “The role of the judiciary, however narrow, in setting the outer boundaries of public use is an important constitutional limitation. To say that no right to notice or a hearing attaches to the public use requirement would be to render meaningless the court’s role as an arbiter of a constitutional limitation on the sovereign’s power to seize private property.” So, Wesley said, “We hold that where, 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.” And while the means of notice required by due process can “vary by circumstance and practical necessity,” Wesley said the U.S. Supreme Court established a bright-line rule in Mullane, saying, “Where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendancy.” Here, Wesley said, “the condemnees were not so numerous as to make individual notice impracticable,” and so the “notice provided by the Village was insufficient to satisfy due process.” INFORMATION NEEDED The court agreed with Brody that the “notice sent to affected property owners must make some conspicuous mention of the commencement of the 30-day review period to satisfy due process.” The village, and Baer, had focused on North Laramie Land Co. v. Hoffman, 268 U.S. 276 (1925), citing the case for the proposition that citizens are charged with constructive knowledge of the law. But Wesley disagreed. “Although a citizen generally has a duty to keep abreast of the laws affecting that property ownership … the rule established by Mullane and its progeny — specifically, that the condemnor must give as much notice as one desirous of actually informing a condemnee, to the extent that such notice is practicable … calls into question the continued validity of what seems to be the per se rule of North Laramie,” he said. The EDPL sets a short, exclusive period of time within which to challenge the public use determination, he said, so the additional information that the publication also commences the 30-day challenge period “imposes a comparatively small burden on the Village while ensuring that property owners are apprised of the limited opportunity to challenge the condemnation decision.” Dana Berliner, William H. Mellor and William R. Maurer of the Institute for Justice in Washington, D.C., and Seattle along with Martin S. Kaufman of the Atlantic Legal Foundation, Inc. in New York represented Brody. Alan D. Scheinkman of DelBello Donnellan Weingarten Tartaglia Wise & Wiederkehr represented the Village of Port Chester. Assistant Solicitor General Julie Loughran and Deputy Solicitor General Michael S. Belohlavek represented the state, which intervened in the action.

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