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Both Houses had Passed Bill Unanimously
Governor Pataki Vetoes Eminent Domain Reform
Legislation would have Required Notice to Property Owners before Public Hearing

- By Carol W. LaGrasse

For once the Democrats and Republicans in the New York State Legislature had agreed on a bill to protect private property owners. The Legislation (A.497/S.5487), which had passed both houses unanimously, required that government agencies serve written notice on affected property owners of a public hearing before eminent domain proceedings begin. Unfortunately, Governor George E. Pataki vetoed the bill on September 22.

The Governor, following the advice of New York State Attorney General Elliott Spitzer, objected that the bill would cost government agencies too much money. All that government agencies have to do now to notify affected property owners is to place a legal notice in the newspaper. The Assembly bill memo pointed out that these sections of the newspapers "are usually crammed with several public notices, printed in small hard-to-read print, and, in most newspapers that are already thick with information, are low on the priority list of reading for most." As a result, few property owners receive adequate notice about the eminent domain procedure affecting their property.

As it now stands as a result of the Governor's veto, New York State's eminent domain law, unlike that of almost every other state, leaves property owners in the dark until their property is actually condemned. By that time, the public hearing is past and it is too late to raise objections about the plans involving the eminent domain. Unless the government agency has made an important technical error in procedure, all that is left for the property owner is to fight the price that will be paid for the condemned property.

If the bill had become law, property owners would know about the hearing and could raise their concerns about the condemnation. It would have been more feasible for property owners to challenge condemnation of their property via judicial review on the basis of the issues, facts and objections raised at the public hearing. Often property owners have cogent objections to the project, but by the time they are in court haggling over the price, it is too late to raise these objections.

The bill would have opened up the eminent domain proceedings further by requiring that the determination and findings of a proposed public project be available free of charge to the owners of condemned property, and that the government's notice to them would spell out the time-frame for challenges.

The lack of advance notice to property owners who are the subjects of condemnation procedures had been a source of injustice and outrage for years. Bill Brody, the owner of a lumberyard and hardware store, had just spent countless hours renovating the dilapidated buildings adjacent to his business, when the Village of Port Chester condemned his buildings for a Stop & Shop parking lot, without personal notice of the hearing. Gathering three cases together in one lawsuit, the Institute for Justice in Washington, D.C., went to federal court on October 4, 2000 on behalf of Mr. Brody, the Minnich family in East Harlem, and a Pentecostal Church against the New York's Empire State Development Corporation, the Village or Port Chester, and the Town of North Hempstead to challenge New York's eminent domain law. Columnist Robyn E. Blumner commented in the St. Petersburg Times in November 2002, "The law is so antagonistic to owners they almost have to be mind readers to know how to object to their property being confiscated.

Federal District Judge Harold Baer issued a ruling in the case (Minnich v. Gargano) that contradicted the idea behind the Gov. Pataki's veto this September. The judge found that the notification of public hearings was deficient because "(w)hile the deprivation is mitigated by the fact the property owners will be paid the fair value of their property, it is still a devastating loss..., the cost to the government to provide personal notice to persons subject to condemnation, when reasonably possible, and to provide notice by publication to all others, appears to be minimal."

The judge reached the same conclusion for the notification of determination and findings: "the government's interest in not providing notice is minimal, as it appears that the fiscal and administrative burdens would be relatively small. The cost of mailing the determination and findings with an additional notice on the document describing the property owner's right to appeal does not appear to be significant." On September 24, 2003, the 2nd U.S. Circuit Court of Appeals removed procedural barriers facing Bill Brody, enabling the case to continue forward.

Judge Baer's decision, however, does not protect all New York property owners, because it is still on appeal. The legislation that Gov. Pataki vetoed would have addressed the concerns of the judge's decision, guaranteeing adequate notice to property owners.

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