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Ciszewski v. State

January 10, 2007


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge



This action pursuant to 42 U.S.C. § 1983 concerns property formerly owned by plaintiffs described in acquisition maps filed with the Essex County Clerk on August 10, 2004. Plaintiffs claim that defendants acquired their property by way of a New York State condemnation proceeding which did not satisfy the requirements of the Due Process Clause of the Fifth and Fourteenth Amendments. The Court granted limited temporary relief to plaintiffs on February 11, 2005 (Dkt. No. 8). On May 26, 2005, the Court issued a Memorandum-Decision and Order (Dkt. No. 34) denying plaintiffs' motion for a preliminary injunction and vacating the temporary restraining order.

Defendants now move (Dkt. No. 40) for summary judgment dismissing the amended complaint (Dkt. No. 31). For the reasons set forth below -- primarily because the two issues raised by plaintiffs (i.e., the state's determination that it was exempt from certain state statutory procedures, and the timeliness of the acquisition under state law) are not issues as to which plaintiffs are entitled to due process -- the Court grants the motion and dismisses the action in its entirety.


The Court briefly summarizes the pertinent aspects of the condemnation procedure under New York Eminent Domain Procedure Law ("EDPL") at the time of the events in issue.*fn1 Apart from the determination of the amount of compensation for the taking, which is not in issue here, it

involves two steps: first, the condemnation determination, that is, the condemnor's determination of factors including the public purpose of the project and its location, EDPL Article 2; and second, the acquisition process, that is, the process of vesting title in the condemnor, EDPL Article 4.

EDPL Article 2 spells out the procedure for the first step, the condemnation determination. Prior to acquisition, the condemnor must conduct a public hearing "in order to inform the public and to review the public use to be served by a proposed public project and the impact on the environment and residents of the locality where such project will be constructed[.]"

EDPL § 201. After the public hearing, the condemnor must make a determination and findings specifying the public use, benefit or purpose to be served by the proposed project; the approximate location of the proposed public project and the reasons for the selection of that location; the general effect of the proposed project on the environment and residents of the locality; and such other factors as the condemnor deems relevant. EDPL § 204(B). The condemnor must then publish a brief synopsis of its determination and findings. EDPL § 204(A). Anyone aggrieved by the findings and determination may obtain judicial review thereof. EDPL § 207.

In certain circumstances, a condemnor may be exempt from compliance with the requirements of Article 2. See EDPL § 206. Section 206(A), relied on by defendants in the case at bar, exempts a condemnor that "considers and submits" to a governmental agency (i.e., a state, federal or local governmental agency, board or commission) "factors similar to those enumerated in" section 204(B), and obtains from that governmental agency "a license, a permit, a certificate of public convenience or necessity or other similar approval."

The next stage of the procedure is the acquisition proceeding under EDPL Article 4. Where, as here, the condemnor is the State of New York, acquisition of the condemned property may be accomplished pursuant to section 402(A).*fn2 This section requires the State to do the following: file an acquisition map with the office of the commissioner of the agency performing the taking, EDPL § 402(A)(1); notify the condemnee by first class mail that the condemnor "is now taking steps to acquire such property," EDPL § 402(A)(2); and file a certified copy of the acquisition map in the office of the County Clerk in which the property is located, whereupon "the acquisition of the property by the state, described in such map shall be deemed complete and title to such property shall be vested in the state." EDPL § 402(A)(3).


Briefly, the undisputed background facts are as follows.*fn3 In August 1999, New York Department of Transportation ("DOT") completed a Draft Design Report/Draft Environmental Impact Statement ("DEIS") concerning the construction of a new bridge. On August 13, 1999, DOT and other cooperating agencies submitted the DEIS to the U.S. Department of Transportation Federal Highway Administration ("FHWA").*fn4 The DEIS included a detailed study of two possible alternative locations for the new bridge (the "upstream" location and the "downstream" location); a description of the public use, benefit and purpose to be served by the project; and information on the general effect of the proposed project on the environment and residents of the area. A duly noticed public hearing took place on November 9, 1999, at which DOT and others addressed the two proposed alternative locations, the public benefit, and the general impact of the proposed project on the environment and local residents. On February 7, 2000, the Essex County Board of Supervisors issued a Resolution stating that it "hereby supports the siting and construction of a new bridge" at the downstream location.

On June 20, 2002, DOT submitted to FHWA the Final Environmental Impact Statement ("FEIS"). The FEIS relied on the conclusions in the DEIS regarding the public use and the general impact of the proposed project, and recommended the downstream location. FHWA approved the FEIS on August 6, 2002, and, on December 19, 2002, issued a Record of Decision approving the downstream location. On December 30, 2002, DOT issued a Record of Decision which, along with the FHWA Record of Decision, completed the environmental analysis and public hearing phase of the project. On January 6, 2003, the Essex County Highway Superintendent approved the plan as described in the FEIS.

Meanwhile, on October 10, 2001, plaintiffs signed a contract to purchase a 68-acre parcel of land. The downstream location of the project contemplated the fee taking of seven acres of this parcel for construction of the access roads to the new bridge.*fn5 The contract of sale stated that plaintiffs were purchasing the property "with full knowledge that the property will be the future site" of the access roads to the future bridge, and that they were buying the property "subject to the ability of the State of New York and the County of Essex to construct these roads."

According to the complaint, the purchase was completed on January 24, 2002.

Plaintiffs acknowledge that on May 6, 2004, they received a letter notifying them that DOT had "started to acquire property" described in Map 7, see EDPL § 402(A)(2) (state must notify condemnee that it "is now taking steps to acquire such property"); the letter stated the purpose of the acquisition, apprised plaintiffs of the appraised valuation of the property being acquired, and offered them compensation equal to the valuation. Although they retained counsel in June 2004, plaintiffs took no action in response to the notice.

On May 14, 2004, Acquisition Map 7 depicting the seven acre parcel to be taken in fee was filed by DOT in the office of the DOT Commissioner. See EDPL § 402(A)(1) (state must file acquisition map in main office of entity for which acquisition is being made). On August 10, 2004, DOT completed the acquisition by filing the acquisition map with the Office of the Clerk of Essex County. EDPL § 402(A)(3) (state must file acquisition map in county clerk's office, whereupon acquisition is complete). In compliance with EDPL § 502, DOT served on plaintiffs notices of appropriation by ...

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