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Brody v. Village of Port Chester

July 18, 2007

WILLIAM BRODY, PLAINTIFF,
v.
VILLAGE OF PORT CHESTER, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

DECISION AND ORDER

Plaintiff William Brody ("Plaintiff" or "Brody"), in this long-running litigation to challenge the taking of his property, brings, pursuant to his Amended Complaint of August 28, 2006, constitutional claims against Defendants Village of Port Chester (the "Village"), G&S Port Chester LLC ("G&S"), Village of Port Chester Industrial Development Agency ("Village IDA"), and Hudson United Bank Co. ("Hudson") (collectively, "Defendants"). Brody's remaining claims allege, pursuant to 42 U.S.C. § 1983, violations of procedural due process by Defendants relating to the condemnation of his property by the Village under N.Y. E.D.P.L. § 201 et. seq.

Upon remand from the Second Circuit, see Brody v. Village of Port Chester, 434 F.3d 121, 124 (2d Cir. 2005) ("Brody III"), I held a bench trial on March 19, 20, and 29, 2007 to determine whether Defendants violated Brody's rights to due process, in light of whether Brody received "actual notice" that might obviate any due process violation. Further proceedings will be held in accordance with this Opinion.

I.FINDINGS OF FACT

A. Environmental Review Process

In 1996, Plaintiff William Brody purchased commercial property in an area of the Village of Port Chester that had long been slated for redevelopment. See generally Brody III, 434 F.3d 121, 124.

In 1998, according to Brody, he heard that the property might be part of another proposed redevelopment plan. Stanley Perelman and Gregg Wasser of G&S Port Chester, LLC, met with Brody at some point in 1998 and told him that G&S wanted to buy his property in an arms-length transaction without the use of eminent domain.*fn1 See Declaration of Stanley Perelman, Mar. 7, 2007 ¶ 29 ("Perelman Decl."); Declaration of Gregg Wasser, Mar. 9, 2007 ("Wasser Decl.") ¶¶ 44-45; Declaration of William Brody, Mar. 9, 2007 ("Brody Decl.") ¶ 12; Trial Transcript ("Tr.") 214:2-214:6; 215:13-216:2.

Brody avers that subsequently, in late 1998 or early 1999, he went to the Greenwich library to research eminent domain law. See Brody Decl. ¶ 11. Brody avers that the information he found was "very general" and "didn't tell [him] how to fight the condemnation."*fn2 Id.

On November 18, 1998, the Village published and made available for public review and comment a Supplemental Draft Environmental Impact Statement ("Draft EIS"), pursuant to the New York State Environmental Quality Review Act, which requires local governments to prepare an environmental impact statement for any proposed action that may have an effect on the environment. See N.Y. ENVTL. CONSERV. § 8-0109(2) (2007). The Village, in Section 2.3.8 of that Draft EIS, summarized (albeit not entirely correctly) the then-operative sections of New York Eminent Domain Procedure Law relevant to a potential challenge to a taking of property. The Village's summary read as follows:

"The EDPL requires the condemnor to review the public purpose of a proposed condemnation at a public hearing held at least ten (10) but no more than thirty (30) days prior notice by publication. At the hearing, the condemnor must outline the purpose and proposed location or alternate locations of the public project. "The hearing may be adjourned without limit from time to time. Within ninety (90) days after the close of the hearing the condemnor must issue its determination and findings, which must minimally specify (a) the public purpose of the project, (b) the location of the project and the reasons for selection of that location and (c) the general impact of the project on the environment and residents of the locality. "The determination and findings are reviewable by the Appellate Division in an Article 78 proceeding commenced within thirty (30) days after the completion of the publication of the determinations."

See Def. Ex. JJ, MM.

As Brody points out, the Village incorrectly stated that the Determination and Findings are reviewable in an Article 78 proceeding. Rather, the Determination and Findings are exclusively reviewable in a special proceeding pursuant to N.Y. E.D.P.L. § 207.*fn3 That error aside, the Village more or less stated the applicable procedural requirements of E.D.P.L. § 207 correctly. An E.D.P.L. § 207 proceeding must, in fact, be brought in the Appellate Division. See N.Y. E.D.P.L. § 207(B). The time limit for such an EDPL proceeding is, in fact, 30 days. See N.Y. E.D.P.L. § 207(A).

Conversely, however, the period to seek Article 78 review is 120 days, not 30. Also, Article 78 relief is sought in the Supreme Court, not the Appellate Division. N.Y. C.P.L.R. §§ 217, 7804.*fn4

The Draft EIS also attached an Appendix of relevant verbatim provisions of the N.Y. E.D.P.L. Strangely, the Draft EIS omitted N.Y. E.D.P.L. §§ 207 and 208, the sections which provide for judicial review of takings. See Def. Ex. JJ.

In any case, Brody submitted a letter of comment in response to the Draft EIS, dated January 11, 1999, in which he stated, inter alia, "In 1875, it became clear that government could take land through eminent domain for public use," and asked, "[D]oes this seizure violate my rights under the state constitution." See Def. Ex. QQ, Pl. Ex. 6, Tr. 218:17-219:3, 230:21-231:2.

In March 1999, the Village published and made available for public review and inspection a Supplemental Final Environmental Impact Statement ("Final EIS"). See Def. Ex. RR; see also Pre-Trial Order, Stipulations, Mar. 9, 2007 ("Stipulations") ¶ 15. The Final EIS repeated the partially incorrect statements made in Section 2.3.8 of the Draft EIS regarding a challenge to a Determination and Findings under New York eminent domain law. See Def. Ex. RR. The Final EIS also incorporated by reference the Appendix of the Draft EIS that included verbatim sections of the N.Y. E.D.P.L. See id. The Final EIS also specifically responded to Brody's comment letter, stating generally that the "redevelopment of a designated urban renewal area is a public purpose," but did not, in that response, address procedures to challenge the taking. See id.

B. Garrison Corwin's Representation of Plaintiff Brody

Brody hired Garrison Corwin, Esq. to represent him in the environmental review process (or as Brody put it, to "get him out of the Project"). Brody Decl. ¶ 15; Tr. 164:11-164:21; Tr. 237:8-237:9. Corwin testified that the scope of his representation of Brody did not extend to the issue of eminent domain. Tr. 170:7-11; 171:16-19. Brody read several articles and faxed them to Corwin, including an article that mentioned the possibility of the Village condemning land for the Project. See Def. Ex. SS; Tr. 237:11-239:4. Brody, however, testified that he never discussed condemnation with Corwin. Tr. 272:15-19; 273:9-17. Corwin, for his part, testified that he was aware that "there might be a condemnation at some point," but that he "was not aware. when it was going to be starting," and that he "had nothing to do with it." Tr. 170:9-11.

Corwin reviewed the Final EIS and the Draft EIS, and specifically reviewed the portion of the Final EIS that summarized (albeit, as noted, not entirely correctly) the then-operative section of the New York EDPL, and stated therein that the Determination and Findings were reviewable in a proceeding commenced within 30 days. Tr. 157:21-158:21; Tr. 162:22-163:20; Def. Ex. UU. Corwin testified that he did not discuss that section with Brody, nor did Brody ask him about it. Tr. 165:7-10, 171:9-15.

On March 18, 1999, Corwin and Brody attended the Village's public hearing regarding the Final EIS, at which Corwin spoke on Brody's behalf. Stipulations ¶ 18. At the March 18, 1999 hearing, as the transcript shows, neither the EDPL, the date of issuance of the determination and findings, nor the attendant 30-day review period was discussed. Def. Ex. UU.

Corwin subsequently sent a one-page letter to Brody on March 19, 1999, outlining his possible legal options regarding the environmental review process. Def. Ex. VV; Tr. 168:7. Corwin recommended that Brody take "no specific action until we have the actual approval resolution in connection with the [Final EIS]," and that Corwin would meet with Michael Zarin, the Village's special counsel regarding the urban renewal proceedings, to "discuss the situation, generally." Def. Ex. VV. Shortly after Corwin ...


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