Brody v. Village of Port Chester

• Decision Date: 05 December 2005
• Docket Number: No. 05-0446-CV.,05-0446-CV.
• Citation: 434 F.3d 121
• Parties: William BRODY, Plaintiff-Appellant, William V. Minnich, William J. Minnich, Minic Custom Woodwork, Inc., and St. Luke's Pentecostal Church, Inc., Plaintiffs, v. VILLAGE OF PORT CHESTER, Defendant-Appellee, Charles A. Gargano, in his official capacity as Chairman, President, and Chief Executive Officer of the New York Urban Development Corporation, d/b/a Empire State Development Corporation, Town of Hempstead and Town of North Hempstead Community Development Agency, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

Page 121

434 F.3d 121

William BRODY, Plaintiff-Appellant, William V. Minnich, William J. Minnich, Minic Custom Woodwork, Inc., and St. Luke's Pentecostal Church, Inc., Plaintiffs, v. VILLAGE OF PORT CHESTER, Defendant-Appellee, Charles A. Gargano, in his official capacity as Chairman, President, and Chief Executive Officer of the New York Urban Development Corporation, d/b/a Empire State Development Corporation, Town of Hempstead and Town of North Hempstead Community Development Agency, Defendants.

No. 05-0446-CV.

United States Court of Appeals, Second Circuit.

Argued: September 19, 2005.

Decided: December 5, 2005.

COPYRIGHT MATERIAL OMITTED

Dana Berliner, Institute for Justice, Washington, D.C. (William H. Mellor, Institute for Justice, Washington, D.C., William R. Maurer, Institute for Justice, Seattle, Washington, Martin S. Kaufman, Atlantic Legal Foundation, Inc., New York, New York, of counsel), for Plaintiff-Appellant.

Alan D. Scheinkman, DelBello Donnellan Weingarten Tartaglia Wise & Wiederkehr, LLP, White Plains, New York, for Defendant-Appellee.

Julie Loughran, Assistant Solicitor General (Eliot Spitzer, Attorney General for the State of New York, Michael S. Belohlavek, Deputy Solicitor General, of counsel), for Intervenor State of New York.

Before: WINTER, SOTOMAYOR, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge.

Plaintiff-appellant William Brody has been fighting the taking of his property for the better part of seven years. In 2001, after a number of public meetings, the Village of Port Chester (the "Village") finally condemned his property for use in a large-scale municipal redevelopment project. Brody sued in the United States District Court for the Southern District of New York, alleging that the Village, acting pursuant to New York's Eminent Domain Procedure Law, N.Y. EM. DOM. PROC. LAW §§ 101-709 (McKinney 2005) ("EDPL"), violated his rights under the Due Process Clause of the Fourteenth Amendment by failing to provide adequate notice of his statutory right to challenge the Village's public use determination and adequate procedures for doing so. The district court (Baer, J.) granted summary judgment in favor of the Village, holding that the notice and hearing provisions of the EDPL, with which the Village complied, satisfied due process.

On appeal, we answer one straightforward but multifaceted question: was Brody afforded the process that was due him under the Fourteenth Amendment to the United States Constitution? After careful consideration of the facts of this case and the applicable case law, we find that (1) the means and content of the notice mandated by section 204 of the EDPL, as applied to Brody, were insufficient to satisfy due process requirements, but (2) the EDPL's procedure for reviewing a condemnor's determination passes constitutional muster. Consequently, we vacate the district court's grant of summary judgment in favor of the Village and remand for a trial to decide whether Brody had actual notice of the EDPL proceedings or procedures and to what damages, if any, he is entitled.

I

A

Brody purchased commercial property in 1996 in an area of the Village that had long been slated for redevelopment. His property consisted of two separate but adjacent lots with four buildings, which he renovated and eventually leased to several local businesses. The Village, however, had plans for renewal on a much larger scale. The plan that the Village finally pursued, the Modified Marina Redevelopment Project ("Project"), was the culmination of decades of discussions on how the Village could revitalize its blighted waterfront and downtown areas. The Project was planned as a mixture of public-use space and private development, and, as is becoming increasingly common in development projects of this scope, the Village, through its Industrial Development Agency, entered into an agreement with a private development company, G & S Port Chester LLC ("G & S"), to coordinate the land acquisition and construction contracting aspects of the Project. Soon after the plans for the Project took shape, representatives of G & S approached those who owned property within the Project area with purchase offers. Many of the owners voluntarily sold their property to G & S, while a number of the property owners, including Brody, refused.

The Village initiated condemnation proceedings in June 1999. As required by section 201 of the EDPL, the Village held a public hearing on June 7, 1999, to discuss the public use, local impact, and necessity of the Project. At that time, the EDPL only required the Village to provide notice by publication.¹ See EDPL § 202(A). The Village nevertheless sent personal notice to Brody by certified mail in addition to publishing the notice. Brody claims he never saw either the published or mailed notice, though he does admit that he was notified of the meeting by one of his tenants.² He attended the June hearing and commented on the record that, although he supported the Project as a whole, he opposed the inclusion of his property.

The Village, having discovered a defect in the published notice for the June hearing, held a second public hearing on July 6, 1999, to discuss the same issues. Again, the Village published notice of the meeting. Brody claims that he never saw the notice, and consequently, he did not attend the July hearing. However, Brody's comments, along with the other statements made at the June hearing, were included as part of the overall record of the hearings kept by the Village.³

On July 18 and 19, the Village published the synopsis of its Determination and Findings, which outlined the Project's public use. The publication of the synopsis commences the exclusive thirty-day period in which an affected property owner may seek judicial review of the Village's determination. EDPL §§ 204, 207(A). Brody did not seek judicial review within the statutory period because, as he claims, he never saw the published synopsis.

On April 26, 2000, the Village began the title acquisition process by filing a verified petition with the Supreme Court in Westchester County. See EDPL § 402(B). In a verified answer dated May 17, 2000, Brody interposed several affirmative defenses. The answer raised issues related exclusively to compensation, as Brody's counsel correctly informed him that any arguments against public use were barred by section 208 of the EDPL. While Brody was participating in the EDPL process, he was also consulting with his current counsel who suggested that he challenge the Village's actions as, among other things, violative of Brody's federal due process rights.

B

On October 4, 2000, Brody, along with several other property owners in different parts of the state, filed suit in the United States District Court for the Southern District of New York, alleging that their property had been taken without notice or an opportunity for hearing in violation of the Due Process Clause of the Fourteenth Amendment. See Minnich v. Gargano, No. 00 Civ. 7481(HB), 2001 WL 46989 (S.D.N.Y. Jan.18, 2001) ("Brody I"). Plaintiffs sought a preliminary injunction barring the various defendants from further condemnation proceedings, and, on January 18, 2001, the district court granted only Brody's request for a preliminary injunction. Id. at *14.

The Village appealed the district court's order, and, on August 8, 2001, this Court vacated the preliminary injunction,⁴ holding that Brody did not have standing to challenge the lack of notice.⁵ Brody v Vill. of Port Chester, 261 F.3d 288, 290 (2d Cir.2001) ("Brody II"). The court went on to hold that, even if Brody did have standing, the district court erred when it "failed to consider the public interests involved [in proceeding with the Project] and to weigh them against Brody's alleged deprivations." Id.

On remand, the district court first found that Brody had remedied his lack of standing as to both the July hearing and the publication of the Determination and Findings. Minnich v. Gargano, No. 00 Civ. 7481(HB), 2001 WL 1111513, at *6 (S.D.N.Y. Sept.20, 2001) ("Brody III"). The district court granted summary judgment for the Village, however, ruling that Brody's claims were barred by res judicata because they could have been asserted as claims or counterclaims in the Village's condemnation proceeding. Id.

On appeal, this Court vacated the district court's summary judgment, noting that Brody's claims were not precluded because they could not have been raised in the Village's section 402 proceeding to take title. Brody v. Vill. of Port Chester, 345 F.3d 103, 113-14 (2d Cir.2003) ("Brody IV"). The Court also clarified the standing issue, holding that (1) Brody did not have standing to challenge the notice given for the second hearing because he never indicated that he would have raised additional objections at the second hearing, id. at 111; and (2) Brody did have standing to challenge the lack of personal notice of the publication of the Determination and Findings because he stated in his declaration that he wished to challenge public use but was denied the opportunity to do so as he was unaware of the commencement of the thirty-day review period. Id. at 111-12.⁶ The Court remanded the case once again for consideration of the merits of Brody's due process claim. Id. at 121.

On remand, Brody again pressed his argument that, but for the Village's failure to notify him of the publication of the Determination and Findings and the commencement of the thirty-day challenge period, he would have challenged the Village's public use determination. Brody v. Vill. of Port Chester, No. 00 Civ. 7481(HB), 2005 WL 13833, at *1 (S.D.N.Y. Jan.4, 2005) ("Brody V"). Brody also argued that the absence of an adversarial proceeding denied him a meaningful opportunity to be heard. Id. The Village argued in response that (1) Brody had actual notice of the publication of the synopsis, (2) the Determination and Findings are legislative in nature, and as...