New York Eminent Domain Laws Kafkaesque

It sounds like the opening of a Franz Kafka novel: You receive a letter informing you the government is condemning your property. You spring into action, assembling documents, doing research, and preparing to challenge the condemnation. But when you get to court, the judge says you are too late.

"Too late?" you protest. "But I just got this notice of condemnation yesterday!"

That's right, the judge nods. And to challenge condemnation of your property, you had to file an appeal two years ago.

"Two years ago? How was I supposed to file an appeal two years ago when the government just moved to condemn my place yesterday?"

The judge gives you a sour look as if to say, "I should have known you were one of those people who skips right by the 'legal notices' section of the newspaper."

If you had been reading the "legal notices," as dutiful citizens do, you would surely know that two years ago, the government had issued a set of "determination and findings" that it could acquire your property at some time in the future. The government did not send you these determination and findings or even tell you they existed. But they published a synopsis of them as a legal notice in the back of the newspaper.

You had 30 days from the publication of the determination and findings in which to appeal them. Those magic 30 days were your only chance to dispute the condemnation proceeding in court. Never mind that you weren't notified of the determination and findings themselves, let alone that you had a time-limited right to appeal them. Never mind that the government was, at that point, years away from petitioning to acquire your property.

Because you didn't appeal a notice that appeared in the newspaper two years ago, you cannot challenge the legality of the condemnation of your property. Not now. Not when the title to your land is transferred to the government. Not ever.

Nightmare in New York

Unfortunately, this nightmarish scenario is not the opening of a Kafka novel, but an illustration of the real-life procedure by which municipalities and government agencies acquire private property against the will of property owners in the state of New York.

Just ask Bill Brody, who four years ago purchased and renovated four buildings in Port Chester. Brody's property is now being condemned by the Village of Port Chester, which plans to transfer the property to a private developer for use as part of a convenience store and parking lot.

When Brody received the Village's petition to acquire his property against his will, he did the logical thing: He consulted a lawyer and filed court papers defending himself against the taking. However, because New York's eminent domain procedure law is anything but logical, Brody was too late.

His right to challenge the legality of the condemnation of his property, to argue that taking his buildings to make way for the store was not a public purpose, had actually expired approximately 10 months before the Village filed its petition. Brody never saw the notice of determination and findings that appeared in his local newspaper, and he certainly did not know he had a right to appeal them. That right expired 30 days after the notice appeared.

Brody and two other aggrieved New York property owners--William Minnich, who owns a custom woodwork business in East Harlem, and Pastor Fred Jenkins, who leads a Pentecostal congregation on Long Island--are fighting the outrageous New York procedure.

At a court hearing this past December, Judge Harold Baer announced he will decide within the next months whether or not to keep the bulldozers at bay while the merits of the property owners' case can be decided. The stakes could not be higher for Brody and Minnich and Jenkins, whose dreams of better lives will be leveled if the government's abuse of eminent domain is not restrained.

All these men want is a fair chance to defend their property and be notified of their rights before they lose them. Property owners should not be kept in the dark when it comes to their rights. That is something that not only Franz Kafka, but all of us, can appreciate.

Marni Soupcoff is a staff attorney with the Institute for Justice.

For more information ...

Life, Liberty, Property. Throughout western history, property rights have been the key to liberty and prosperity. (Commentary magazine, March 1999, 5pp.)

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